Elekwachi, Francis Nnamdi v Human Rights & Equal Opportunity Commission
[1997] FCA 1183
•3 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - complaint under Racial Discrimination Act 1975 (Cth) - request for referral of complaint to Equal Opportunity Tribunal under Equal Opportunity Act 1984 (SA) - later request for complaint to be considered by respondent pursuant to Racial Discrimination Act - applicant seeking judicial review of decision of respondent that it was prevented from considering the applicant’s request by virtue of s 6A(2) of the Racial Discrimination Act 1975 - consideration of purpose of s 6A(2) - should be construed narrowly - held in circumstances that applicant had taken no action under the Equal Opportunity Act 1984 within meaning of s 6A(2) - decision of respondent set aside.
Racial Discrimination Act 1975 (Cth), ss 3, 6A(2), 9, 15, 18A-C, 24, 24E, 40
Equal Opportunity Act 1984 (SA), ss 93(1)-(3), 95(1)-(9)
Human Rights and Equal Opportunity Commission Act 1986, s 7
Administrative Decisions (Judicial Review) Act 1977, ss 5, 11
Viskauskas v Nyland (1983) 153 CLR 280 considered
FRANCIS NNAMDI ELEKWACHI v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SG 55 of 1997
MANSFIELD J
ADELAIDE
3 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SG 55 of 1997
BETWEEN: FRANCIS NNAMDI ELEKWACHI
Applicant
AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION
Respondent
JUDGE: MANSFIELD J
DATE: 3 NOVEMBER 1997
PLACE: ADELAIDE
THE COURT ORDERS THAT:
The decision of the Human Rights and Equal Opportunity Commission made on or about 20 March 1997, or alternatively made on or about 13 January 1997, that Francis Nnamdi Elekwachi from 10 July 1996 was not entitled to proceed with his complaint made on 27 April 1995 to the Human Rights and Equal Opportunity Commission be set aside.
Francis Nnamdi Elekwachi has not, by reason of the letter from his solicitors of 10 July 1997 to the Commissioner for Equal Opportunity, made a complaint, instituted a proceeding or taken any other action under the Equal Opportunity Act 1984 (SA) in respect of the matters the subject of his complaint.
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 55 of 1997
BETWEEN: FRANCIS NNAMDI ELEKWACHI
Applicant
AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION
Respondent
JUDGE: MANSFIELD J
DATE: 3 NOVEMBER 1997
PLACE: ADELAIDE
REASONS FOR JUDGMENT
NATURE OF APPLICATION
This is an application made on 10 July 1997 for relief under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) in effect complaining of a decision of the Human Rights and Equal Opportunity Commission (“the Commission”), established under s 7 of the Human Rights and Equal Opportunity Commission Act 1986 (“the HREOC Act”). The decision complained of was made under s 6A of the Racial Discrimination Act 1975 (Cth) by which the Commission refused to entertain a complaint made by Francis Nnamdi Elekwachi (“Mr Elekwachi”) under that Act. Although the grounds specified in the application and in a document filed and entitled Addendum Application dated 23 September 1997 are far reaching, essentially it is complained that the decision of the Commission was not authorised by s 6A of the Racial Discrimination Act 1975 and that the decision of the Commission was contrary to law. I refer to the detailed nature of the application hereunder.
Section 6A of the Racial Discrimination Act 1975 provides:
“(1)This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
(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 this Act;
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission 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.
(3) 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)an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.”
The real point in issue is whether the Commission’s decision that, in the events which happened, Mr Elekwachi had “made a complaint, instituted a proceeding or taken any other action under” the Equal Opportunity Act 1984 (SA) to which subs 6A(2) applies so as to preclude the Commission from entertaining further his complaint under the Racial Discrimination Act 1975, is correct.
The Commission appeared by Ms Eastman to submit to any order of the Court on the application, but also took steps through Ms Eastman to ensure that Mr Elekwachi had access to all material which might have been relevant to his application, and to ensure that the issues for determination by the Court were properly identified and that relevant material on the hearing was brought to the Court’s attention. In my view that was an entirely proper role for the Commission to take: see The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 per Brennan J at 681-682; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629. I have been much assisted by Ms Eastman’s helpful observations.
For reasons which appear below, I also directed service of the application upon the Commissioner for Equal Opportunity for South Australia, an office created by s 8 of the Equal Opportunity Act 1984. At the hearing, the Commissioner for Equal Opportunity (“the SA Commissioner”) also appeared by leave, through Mr Ahern of counsel, for the purpose of ensuing that relevant material was made available both to Mr Elekwachi and to the Court and to identify issues for the Court’s attention. I was also much assisted by Mr Ahern’s observations.
It was also appropriate for both the Commission and the SA Commissioner to be present during the hearing, given some of the quite serious allegations made by Mr Elekwachi both in his application and the Addendum Application, in particular as to the motives of the Commission through its delegate. As events have turned out, I do not need to address in detail much of those submissions or of the material said by Mr Elekwachi to disclose improper motives of various officers of the Commission through the SA Commissioner as its delegate about the way Mr Elekwachi’s initial complaint was handled, including his allegation of some form of fraudulent conspiracy amongst those persons. As Mr Elekwachi was appearing on his own behalf and lacked to some extent detailed knowledge of legal procedures and of the role of the Court under the ADJR Act, it seemed appropriate simply to receive such material as he sought to rely upon and to entertain such submissions as he sought to make to ensure that all his legitimate and available complaints were identified and, to the extent necessary, addressed.
THE COMPLAINT
Mr Elekwachi on 27 April 1995 made a complaint addressed to the Commissioner for Equal Opportunity in South Australia. His complaint was in the following terms:
“On 28 March, 1995 and thereafter the respondents individually and collectively discriminated and have continued to discriminate against me in employment on the grounds of English not being my first language and therefore by implication, discriminating against me in employment on grounds of race.”
That complaint was treated as one of discrimination against him in his employment on the grounds of his race, contrary to s 15 of the Racial Discrimination Act 1975.
It is necessary for present purposes to note only briefly the background to his complaint. Mr Elekwachi was employed from 1993 by the Workers Rehabilitation and Compensation Corporation (“Workcover”), a statutory corporation created under the Workers Rehabilitation and Compensation Act 1986 (SA) and given the responsibility of conducting and managing a statutory scheme in South Australia to provide for the rehabilitation and compensation of workers in respect of disabilities arising from employment. Mr Elekwachi was employed as a Quality Assurance Analyst in the Technical Services Department of Workcover.
His complaint is that, on and from 28 March 1995, Workcover and a Mr Fred Morris who was then the Manager of the Technical Services Department of Workcover discriminated against him in reports made concerning him in relation to his eligibility and qualifications for a position as Agency Auditor of Workcover, in particular with respect to his written communication skills, and that such discrimination was on the grounds of his race. His complaint refers in some detail to the background to that allegation, involving Workcover during 1994 having commenced to outsource its claims management. As a result, Mr Elekwachi and a number of other Workcover employees became potentially or permanently displaced. Procedures were instituted by Workcover involving a “skill matching” process to locate displaced employees into new positions as available within Workcover. It was in the course of this process that the alleged discrimination took place. The background facts asserted in the complaint also identified and described some events from late 1993 involving apparently explicit racial harassment of Mr Elekwachi in which Mr Morris and others were participants which, if correct, at the least provide a significant context for the complaint. Those matters are set out at length in the section of the complaint under the heading “Background”.
The material before me makes it plain that the complaint addressed to the Commissioner for Equal Opportunity was treated as, and accepted as, a complaint made under the Racial Discrimination Act 1975. It is necessary to describe how it is that the complaint came to be so treated, as it was directed to the Commissioner for Equal Opportunity of South Australia.
THE COMMISSION’S PROCESSES
Part III of the Racial Discrimination Act 1975 deals with inquiries in civil proceedings.
It creates the office of Race Discrimination Commissioner (s 19). Section 3 of that Act defines the Commission as the Human Rights and Equal Opportunity Commission for its purposes.
The functions of the Commission under the Racial Discrimination Act 1975 include to inquire into alleged infringements of Pt II of that Act, and to endeavour by conciliation to effect settlements of the matters alleged to constitute those infringements: s 20(1)(a). That function of the Commission is to be performed by the Race Discrimination Commissioner on behalf of the Commission: s 21. Section 22 describes the way in which a complaint may be made.
There is no issue that the complaint as expressed by Mr Elekwachi might, if the facts contained within it were made out, constitute unlawful discrimination in employment, contrary to s 15 of the Racial Discrimination Act 1975. Section 9 of that Act also generally makes it unlawful to engage in discrimination on the ground of race.
Section 24 of the Racial Discrimination Act 1975 provides for the Commission, when it has received a complaint of an alleged unlawful act to notify the Race Discrimination Commissioner, and for the Race Discrimination Commissioner then to inquire into the matter and to endeavour, by conciliation, to effect a settlement of the matter to which the Act relates: s 24(1). Section 24(2) of that Act provides as follows:
“The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:
(a)the Commissioner is satisfied that the act is not unlawful by reason of a provision of part II or part IIA;
(b)the Commissioner is of the opinion that the person aggrieved by the act does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;
(c)in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or
(d)in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.”
In effect, the Race Discrimination Commissioner may as a result of her inquiry decide not to continue to inquire into the act complained of on the basis that no unlawful conduct is disclosed, or that the person aggrieved does not wish the inquiry to be pursued, or after an elapse of time, or where she regards the complaint as frivolous. In any of those events, the Race Discrimination Commissioner must then notify the complainant in writing of that decision and the reasons for it. The complainant is then, under subs (4) given the right to seek review of the decision of the Race Discrimination Commissioner either to the Commission (if under subs (2)(a) the Race Discrimination Commissioner has determined that the Act complained of is not unlawful), or in other cases to the President of the Commission. If a complainant makes such a requirement, the Commissioner is obliged to act in accordance with it.
Section 24E(1) of the Racial Discrimination Act 1975 deals with circumstances where the Race Discrimination Commissioner has not proceeded under s 24(2) of the Act. It provides:
“Where the Commissioner:
(a) is of the opinion that a matter cannot be settled by conciliation;
(b)has endeavoured to settle a matter by conciliation but has not been successful; or
(c)is of the opinion that the nature of a matter is such that it should be referred to the Commission;
the Commissioner shall refer the matter to the Commission together with a report relating to any inquiries made by the Commissioner into the matter.”
Thus, unless the Race Discrimination Commissioner has made a decision under s 24(2) of the Act, she must inquire into and endeavour to conciliate a complaint. When she has either determined that a matter complained of cannot be settled by conciliation, or she has endeavoured to resolve a matter by conciliation but has been unsuccessful, or she considers the matter should be referred to the Commission, the Race Discrimination Commissioner is obliged to refer the matter to the Commission. Division 3 of Pt III of the Act (ss 24F-25ZB) then provides for the conduct of the inquiry by the Commission.
In this matter the Race Discrimination Commissioner by her delegate did not make a decision or exercise her powers under s 24(2) of the Racial Discrimination Act 1975. By her delegate, she inquired into and attempted to conciliate the dispute unsuccessfully. But she did not then exercise her function under s 24E(1) of that Act. That step has not been taken. The matter did not get to the point of an inquiry by the Commission itself under Pt III Div 3 of that Act.
The reason for that position, about which Mr Elekwachi complains, is related to the role of the SA Commissioner.
The SA Commissioner has specific functions and responsibilities under the Equal Opportunity Act 1984. I shall refer to those functions and responsibilities hereunder to the extent necessary.
Apart from her role under the Equal Opportunity Act 1984, the SA Commissioner also has and had at material times certain functions and responsibilities of the Race Discrimination Commissioner under the Racial Discrimination Act 1975 delegated to her. On the material before me, there are two separate vehicles for the SA Commissioner performing the functions and fulfilling the responsibilities of the Commission under the Racial Discrimination Act 1975 in respect of Mr Elekwachi’s complaint. The first derives from s 16 of the Human Rights and Equal Opportunity Commission Act 1986. It empowers the Minister entrusted with the administration of that Act to arrange with a Minister of a State in relation to the performance by an instrumentality of that State on behalf of the Commonwealth of any functions of the Commission. An agreement between the Commonwealth and the State of South Australia made pursuant to that section and commencing on 1 July 1991 (“the agreement”) was in evidence before me. Although the agreement is expressed to be for a term of three years, it has apparently continued in operation since then by less formal arrangement. The objectives of the agreement include providing one point of contact for advice and for the handling of complaints under both Federal and State legislation, and facilitating efficient and economic handling of complaints. Clause 5 of the agreement empowers the SA Commissioner to perform the functions of the Commission, inter alia, set out in s 20(1)(a) of the Racial Discrimination Act 1975 with powers necessary for, and incidental or conducive to, the performance of those functions. Those functions are otherwise performed by the Race Discrimination Commissioner on behalf of the Commission: s 21 of the Racial Discrimination Act 1975. Clause 8 of that agreement provides:
“The Commissioner shall normally investigate and conciliate any complaint contemplated by this agreement, until, in accordance with the delegations granted by the Commission, the matter is required to be forwarded to the Commission for appropriate action”
and cl 9 provides:
“The Commissioner agrees to provide the Commission with draft referral reports on complaints forwarded to the Commission pursuant to clause 8 in such form as may be agreed.”
The second basis upon which the SA Commissioner was able to exercise the functions and powers conferred on the Race Discrimination Commissioner is under express delegation of the Commission made pursuant to s 40 of the Racial Discrimination Act 1975.
By delegation under that section made on 9 December 1994, the Race Discrimination Commissioner delegated to the SA Commissioner her powers under ss 24, 24A, 24B and 24C of the Racial Discrimination Act 1975. Those powers relate to the Race Discrimination Commissioner’s conduct of an inquiry following a complaint under that Act. The delegation did not extend to the exercise of the final step of referring a matter to the Commission under s 24E of that Act.
Accordingly, by a combination of the agreement and those delegations, upon receipt of the complaint by the SA Commissioner which was a complaint to the Commission under the Racial Discrimination Act 1975, the obligations of the Commission to inquire into the alleged infringement, and to endeavour by conciliation to effect settlement of the matters alleged to constitute that infringement, were able to be performed by the SA Commissioner on behalf of the Commission.
The SA Commissioner did not determine not to inquire into, or not to continue to inquire into, the matters complained of for any of the other reasons to which s 24(2) of the Racial Discrimination Act 1975 refers. She undertook an inquiry into the matters the subject of the complaint, and endeavoured to conciliate those matters. She was unsuccessful. The SA Commissioner thus had reached the point where, but for the absence of delegation, she would have been of opinion under s 24E of the Racial Discrimination Act 1975 that the matter could not be settled by conciliation despite her endeavours to do so, and that the nature of the matter was such that it should be referred to the Commission. However, the SA Commissioner had no power, in the absence of an appropriate delegation, to do so. As a practical matter, and as cl 8 and cl 9 of the agreement then contemplated, the SA Commissioner would prepare a draft referral of the matter to the Commission to be considered by the Race Discrimination Commissioner, and subject to the Race Discrimination Commissioner on the material before her forming a different view, the Race Discrimination Commissioner would then refer the matter to the Commission under s 24E of the Racial Discrimination Act 1975. The Commission itself would then normally conduct an inquiry.
It was from that point that the present issue arose. In the circumstances referred below, the matter has simply not progressed. It was not referred to the Commission. I note in passing that, as Mr Elekwachi pointed out in his submissions, Workcover was nevertheless told by letter from the SA Commissioner dated 19 June 1996 that the matter had been referred to the Commission.
THE CIRCUMSTANCES
Upon receipt of the complaint, and it being identified as a complaint made under the Racial Discrimination Act 1975, the SA Commissioner embarked upon its investigation, and then to conciliate those matters. In late 1995, Mr Elekwachi instructed solicitors to handle his complaint on his behalf, and the SA Commissioner corresponded with those solicitors as to the result of her investigations from time to time. Through those solicitors, Mr Elekwachi expressed concerns to the SA Commissioner as to the slow progress of her investigation.
By letter dated 5 June 1996, Mr Elekwachi through his solicitors wrote to the SA Commissioner further expressing concerns as to the delay, and the potential prejudice to Mr Elekwachi by reason of delay, and adding:
“We are of the opinion that it is appropriate that this matter now be referred for formal determination to either the Human Rights and Equal Opportunity Commission or, alternatively, the South Australian Equal Opportunity Tribunal.”
The SA Commissioner by letter of 19 June 1996 responded indicating her belief that the matter had not been able to be conciliated. The agreement then contemplated that the SA Commissioner would prepare, and send to the Race Discrimination Commissioner, a draft “referral report” which the Race Discrimination Commissioner could consider in determining, in terms of s 24E of the Racial Discrimination Act 1975, whether she should refer the matter to the Commission. However, that letter added:
“As Mr Elekwachi’s complaint is initiated under the Race Discrimination Act the matter will be referred to the Human Rights and Equal Opportunity Commission, unless you elect otherwise. We would need notice of an alternative election within fourteen days of the date of this letter.”
Mr Elekwachi was given a copy of that letter by his solicitors and was informed:
“As you will also see in the correspondence from the Equal Opportunity Commission, the matter has been referred to the Human Rights and Equal Opportunity Commission, under the Federal System established by the Race Discrimination Act. The Equal Opportunity Commission does have the power to alternatively refer this to the South Australian Equal Opportunity Tribunal, for hearing and determination pursuant to the State legislation. However, if you wish to proceed under the State legislation, it would be necessary to advise the Equal Opportunity Commission of this by 3rd July 1996.”
He then consulted his solicitors and as a result of the advice received he instructed them by letter of 8 July 1997 that his
“complaint be referred to the Equal Opportunity Tribunal (South Australia), and not the Human Rights Commission (Commonwealth).”
In accordance with these instructions, his solicitors wrote to the SA Commissioner for Equal Opportunity by letter dated 10 July 1996 including the following:
“Please be advised that my client has instructed me that he wishes to proceed pursuant to the Equal Opportunity Act (SA) 1984. We therefore request that you refer this matter to the Equal Opportunity Tribunal for formal determination.
Mr Elekwachi has indicated that he wishes to continue to be represented by this firm in any hearing before the Tribunal. We are aware of the Commission’s obligation to provide assistance to a complainant in proceedings before the Tribunal, and request that you give favourable consideration to my client’s request that such assistance be provided in the form of funding assistance, thereby enabling him to proceed with the legal representative of his choice.”
Where a complaint is referred to the Equal Opportunity Tribunal, under s 95(9) of the Equal Opportunity Act 1984, the SA Commissioner must, on the request of the complainant, provide assistance to the complainant either personally or by counsel in presentation of the complainant’s case. The SA Commissioner decided to carry out further investigations in the light of that provision as to whether to refer the matter to the Equal Opportunity Tribunal, or in what terms, because of the obligation a referral would carry with it of providing assistance to Mr Elekwachi. That decision was said to be so the SA Commissioner could form “a view as to its merit for the purposes of section 95(9) of the Act”. Mr Ahern explained that availability of resources meant that the SA Commissioner provided a closer scrutiny of complaints referred to the Equal Opportunity Tribunal in South Australia, as the Commissioner may be required to provide representation to complainants, than to complaints leading to a determination in draft for the purposes of s 24E of the Racial Discrimination Act 1975, to be provided to the Race Discrimination Commissioner pursuant to cl 9 of the agreement.
The provisions dealing with the making and handling of complaints under the Equal Opportunity Act 1984 are less complex than those under the Racial Discrimination Act 1975. A complaint is made under s 93 of the Equal Opportunity Act 1984. Section 93(1)(c) requires a complaint to be in writing, and to set out the details of the alleged contravention. It must be lodged with the SA Commissioner. Section 93(2) requires the complaint to be lodged within six months of the act or the last of the series of acts constituting the alleged contravention. Section 93(3) obliges the Commissioner to cause a written summary of the particulars of the complaint to be served upon the respondent named in the complaint. Section 94 of that Act then entitles the Commissioner upon a complaint being lodged to conduct an investigation into the alleged contravention. Section 95(1) empowers the SA Commissioner to decline to recognise a complaint if of the view that it is frivolous, vexatious or misconceived or if it is lacking in substance. Section 95(3) obliges the SA Commissioner to endeavour to resolve complaints by conciliation if appropriate. If the SA Commissioner has investigated a complaint, and has been unable to conciliate it, s 95(8) of that Act applies. It provides:
“Where the Commissioner -
(a) is of the opinion that a matter cannot be resolved by conciliation;
(b)has attempted to resolve the matter by conciliation but has not been successful in that attempt;
or
(c)has declined to recognize a complaint as one upon which action should be taken under this section and the complainant has, within three months of being notified of the Commissioner’s decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal,
the Commissioner must refer the matter to the Tribunal for hearing and determination.
It is in terms very similar to s 24E of the Racial Discrimination Act 1975. It is hard to see why, in those circumstances, further investigation for the purposes of s 95(9) of the Equal Opportunity Act 1984 was warranted. However, it is not for present purposes necessary to explore that question.
Mr Elekwachi’s complaint at no time was referred to the Equal Opportunity Tribunal under s 95(8) of the Equal Opportunity Act 1984.
During the period from 10 July 1996 to November 1996 the SA Commissioner, having indicated that an opinion on the merits on Mr Elekwachi’s complaint was being prepared “following which I will be in a position to advise on the question of representation” of his complaint to the Equal Opportunity Tribunal, carried out further inquiries including interviewing witnesses nominated by Mr Elekwachi.
Towards the end of that period, apparently due to his frustration at the process, Mr Elekwachi instructed his solicitors to have his complaint referred to the Commission. His attention was drawn to s 6A of the Racial Discrimination Act 1975. The SA Commissioner took the view that, by reason of the letter of 10 July 1996, there had been action taken under the Equal Opportunity Act 1984 so that s 6A of the Racial Discrimination Act 1975 precluded the matter from being referred to the Commission. More accurately, her view was that, having reached the stage at which s 24E of that Act would have to be addressed, and pursuant to par 9 of the agreement, she would normally prepare a draft recommendation for the Race Discrimination Commissioner for her consideration with a view to the complaint being referred to the Commission, s 6A(2) however prevented her from taking that action. I note that the SA Commissioner had informally indicated that she would decline to recognise certain matters raised by Mr Elekwachi as having merit sufficient to have them referred by her to the Tribunal but that there were other aspects of his complaint which were of sufficient substance to do so. It is not clear, nor is it necessary to decide, whether that view was one which was available having regard to s 95(8) and (9) of the Equal Opportunity Act 1984. Since November 1996, Mr Elekwachi directly, through his wife, and through the African Heritage Association of South Australia Inc, has made various representations and submissions to the SA Commissioner and to the Commission complaining that his complaint had not been referred to the Commission and as to the handling of his complaint by the SA Commissioner.
The Commission has consistently responded that s 6A(2) of the Racial Discrimination Act 1975 precludes the Commission from proceeding with Mr Elekwachi’s complaint as the letter from his solicitors of 10 July 1996 amounted to an “election” to pursue his complaint under the Equal Opportunity Act 1984. Accordingly, that “election” has the effect of deeming that Mr Elekwachi was not entitled to proceed under the Racial Discrimination Act 1975.
It is unnecessary to refer in detail to the exchange of correspondence, save to note that that correspondence with the Commission included a letter from the President of the Commission to the wife of Mr Elekwachi dated 20 March 1997 confirming that position and giving reasons for it, and a further letter from the President of the Commission again to her confirming that position in the light of further correspondence from her. Those letters are relevant, having regard to the date of the application before the Court.
THE OPERATION OF SECTION 6A
Section 6A was introduced into the Act by the Racial Discrimination Act Amendment Act 1983, commencing on 19 June 1983. The circumstances leading to its introduction were identified by the Minister in the House of Representatives in the Second Reading Speech (Hansard, House of Representatives, 25 May 1983, 923-924) as a result of the decision of the High Court in Viskauskas v Nyland (1983) 153 CLR 280. In that case, the High Court concluded that s 19 of the Anti-Discrimination Act 1977 (NSW) was inconsistent with s 13 of the Racial Discrimination Act 1975, and that a complaint under the NSW Act was therefore incompetent. That was not because there was direct inconsistency between the legislation, but because in respect of racial discrimination the Racial Discrimination Act 1975 was intended to cover the field, at least so far as the operation of s 19 of the NSW legislation operated. Thus, by reason of s 109 of the Constitution, it was invalid. The Minister stated:
“The Court took the view that the Commonwealth Racial Discrimination Act was intended to cover the whole area of racial discrimination prohibition in Australia, and therefore it was not possible for the State legislation to operate in the same field.
. . .
The Government takes the view that constructive developments have taken place in some States in the field of anti-discrimination law and that Federal measures should not impinge upon those developments. The High Court decision has meant that the constructive New South Wales racial discrimination provisions are no longer effective. The New South Wales Government has asked that urgent action be taken to overcome the effect of the Court decision, and the Government agrees that it is desirable to do so.
The Bill makes it clear that State and Territory legislation which furthers the objects of the Racial Discrimination Convention can stand alongside the Commonwealth legislation. The States of course will need to ensure that their legislation does further those objects and is in a form in which it is able to operate concurrently with the Commonwealth Act.
In New South Wales there were a large number of complaints in various stages of investigation when the Court decision was announced. The Bill has been drafted in such a way as to allow those cases to continue under the State legislation.
As it will be possible in many cases for a person to pursue a remedy under either Commonwealth or State law, provisions have been included to prevent a person from taking action under both laws in respect of the same matter and also to prevent the difficulty presented by double penalties.”
It will be seen that the problem which gave rise to the amending Act, as the major part of that Second Reading Speech suggests, was addressed in s 6A(1) of that Act. The observations relating to s 6A(2) of that Act are very short. Section 6A(2) is apparently intended both to address the question of then existing concurrent proceedings and also to prevent a person from taking action under both Commonwealth and State laws in respect of the same subject matter. Section 6A(3) is intended to prevent the difficulty presented by double penalties. There is in the Equal Opportunity Act 1984 no analogue of s 6A(2) of the Racial Discrimination Act 1975.
The critical question is whether s 6A(2), in the circumstances, operates to preclude Mr Elekwachi from proceeding in the Commission with his complaint made under the Racial Discrimination Act 1975 in the circumstances outlined above.
In my view, it is possible to deal with that question fairly shortly.
For present purposes, I assume that the Equal Opportunity Act 1984, which clearly furthers the objects of the Convention, deals with a matter dealt with by the Racial Discrimination Act 1975. Thus s 6A(2)(a) of that Act operates. I note the suggestion to the contrary of that assumption made by Mr Ahern for the SA Commissioner, because s 54 of the Workers Rehabilitation and Compensation Act 1986 may preclude Mr Elekwachi from recovering damages against Workcover. I did not hear detailed submissions on that contention, and as it is not necessary to resolve the question I refrain from doing so in the present matter.
The next question, which is a question of fact, is whether Mr Elekwachi has “made a complaint, instituted a proceeding or taken any other action under” the Equal Opportunity Act 1984 in respect of the matters the subject of his complaint. The conduct identified as giving rise to the operation of s 6A(2) of the Racial Discrimination Act 1975 is the letter of 10 July 1996 requesting his complaint be referred to the Equal Opportunity Tribunal for determination. As I have noted, any referral is to be made by the SA Commissioner, and no such referral has yet been made.
The initial complaint of 27 April 1995 cannot be the event upon which s 6A(2) operates. That complaint was characterised as a complaint under the Racial Discrimination Act 1975. There is no suggestion before me that that characterisation was wrong. If the initial complaint were made under the Equal Opportunity Act 1984, the SA Commissioner would not have been entitled to exercise any powers delegated to her by the Commission, as she clearly did, up to June 1996. Again, it is not suggested before me that she was in error in that regard.
The position must be, therefore, that up to 10 July 1996 Mr Elekwachi’s complaint was one made under the Racial Discrimination Act 1975. In my view, the letter of 10 July 1996 did not constitute the making of a complaint under the Equal Opportunity Act 1984. It did not in any sense comply with the requirements of s 93 of that Act. It could not have constituted a valid complaint even if, somehow, the letter was treated as incorporating the terms of the initial complaint because it was well out of time: s 93(2) of that Act. Nor was it so treated by the SA Commissioner, who did not thereupon commence the procedures required by ss 94 and 95 of that Act, but simply proceeded to a consideration of s 95(9) of that Act. Although again, strictly speaking it is unnecessary to decide the matter, it is implicit in that conclusion that she was not entitled to do so at that point. Nor, in my view, does that letter constitute the institution of a proceeding by Mr Elekwachi under the Equal Opportunity Act 1984. Any such proceedings under that Act would involve either the referral of a matter to the Tribunal under s 95(8) or an appeal to the Supreme Court of South Australia under s 98 of that Act or, possibly, separate proceedings under s 31 of the Industrial Conciliation and Arbitration Act 1972 (SA). Mr Elekwachi did none of those things. His letter of 10 July 1996 was not the referral of his complaint to the Equal Opportunity Tribunal; he had no capacity to do that. Had there been a complaint under the Equal Opportunity Act 1984, such a request is not necessarily a step in the referral process under that Act. Even if, as a matter of fact in a particular letter, such a step is part of the chain of events leading to the referral it is not itself the institution of the proceedings: Murphy v KRM Holdings Pty Ltd (1985) 8 FCR 349; Saddington v Oliver (1993) 43 FCR 545.
There remains the question of whether the letter of 10 July 1997 amounted to the “taking of any other action under” the Equal Opportunity Act 1984. In my view, that expression is intended to be limited to action in the nature of some form of initiating process other than by complaint or institution of proceedings, consistent with the generic significance which those two expressions bear. Although the words “any other” are potentially wide in meaning, the practical position is that once an initiating process is undertaken under relevant State or Territory legislation, then s 6A of the Racial Discrimination Act 1975 will take effect. The complainant will no longer be entitled to pursue a complaint under that Act. Any subsequent action taken under relevant State or Territory legislation will have no significance to the operation of s 6A of the Racial Discrimination Act 1975. Accordingly, in my view that expression must be construed sui generis with “complaint” and “institution of proceedings”. There may be circumstances where the particular initiating process invoking operation of the relevant State or Territory operation may not fall clearly within those terms; the expression used is, in my view, directed to encompassing within the ambit of the operation of s 6A any step which formally invokes the operation of any such legislation. I am fortified in that conclusion by the desirability of s 6A(2) being construed so as to fulfil rather than inhibit the general objectives of the Racial Discrimination Act 1975, and corresponding State and Territory legislation: Waters v Public Transport Corporation (1991-1992) 173 CLR 349 per Mason CJ and Gaudron J at 359. It should be interpreted so that its application to a particular claimant is clear and unequivocal. It would be undesirable in the present circumstances that Mr Elekwachi is obliged to pursue his complaint before the Equal Opportunity Tribunal if that Tribunal were vulnerable to a challenge to its jurisdiction because no proper complaint was made to it within time. The way s 6A(2) operates also assists in that conclusion. It provides a “choice of law” rule by removing from those eligible to proceed under the Racial Discrimination Act 1975 persons who have in some way proceeded under corresponding State or Territory legislation in respect of the subject of the complaint. Once such action is taken, the complainant’s right to pursue relief under the Racial Discrimination Act 1975 is forever lost. Because any action so taken has that consequence, in my view it should apply only if the action of the complainant has the character of clearly showing the adoption by the applicant of the relevant State or Territory legislation as the source of the relief for the matters complained of.
Finally, I observe that the complaint, institution of proceedings or other action must be taken “under” the relevant State or Territory legislation. The identification of a decision made under an enactment, for the purposes of s 5 of the ADJR Act, has not proved to be without some difficulty: Australian National University v Burns (1982) 43 ALR 25; Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679; Lewins v Australian National University (1996) 133 ALR 452. In general terms, the cases in this Court determine that a decision is made under an enactment if it is made ‘in pursuance of’ or ‘under the authority of’ the particular legislation: see the discussion of Cooper J in James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277 at 280-282. The High Court in both Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234 and in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 reflected that approach by looking to the source of power giving legal efficacy to the decision complained of, to identify whether the decision was one made “in the performance of a statutory function” (per Mason, Deane and Dawson JJ in Mayer at 303). It would again accord with what I determine to be the desirability for certainty in the operation of s 6A(2) of the Racial Discrimination Act 1975 if the expression “under that law” were given a similar meaning as the expression “under an enactment”, as that term has been interpreted in relation to s 5 of the ADJR Act. Such corresponding State or Territory legislation as s 6A(2) of the Racial Discrimination Act refers to will then only be invoked, so that s 6A(2) then effectively makes that State or Territory legislation thereafter the exclusive source of relief for the conduct complained of, if the relevant action can be identified as being taken in pursuance of or under the authority of a particular statutory provision. To so identify any potentially relevant action on the part of Mr Elekwachi, it will be necessary to have regard to the provisions of the Equal Opportunity Act 1984.
I have referred above to those provisions generally. In my view Mr Elekwachi did not take any action under the Equal Opportunity Act 1984 by his solicitors’ letter to the SA Commissioner of 10 July 1996. That letter was neither a complaint, nor the institution of proceedings, under that Act. It did not amount separately to proceedings instituted to procure action under that Act. Referral of matters the subject of a complaint to the Equal Opportunity Tribunal under that Act is the function of the SA Commissioner. Mr Elekwachi had no right to do that. His letter may have prompted the SA Commissioner to consider making such a referral (as I have observed, possibly inappropriately in the absence of a valid and timely complaint made under that Act), but of itself it had no legal efficacy. There is no provision under that Act which incorporates such a request as contained within that letter as a necessary, or indeed an available, step in the referral of a matter to that Tribunal. The obligation of the SA Commissioner to provide assistance to a complainant under s 95(9) of that Act arises only upon a valid referral to that Tribunal by the SA Commissioner of a complaint under that Act. Whilst it may be appropriate for administrative reasons for the SA Commissioner, in anticipation of her referring a complaint to that Tribunal, to give consideration to the nature and extent of any such assistance before the referral itself, any invitation to do so made by Mr Elekwachi (even assuming the SA Commissioner could properly refer his complaint to that Tribunal) does not constitute action taken under that Act in the relevant sense. I have however concluded that no valid complaint by Mr Elekwachi under the Equal Opportunity Act 1984 was before the SA Commissioner in any event.
Accordingly, in my view Mr Elekwachi’s complaint as originally made to the Commission is still on foot and he still has the status to maintain it. The SA Commissioner has exhausted her delegated powers under the Racial Discrimination Act 1975. Under the agreement, she is to prepare a draft recommendation for the Race Discrimination Commissioner for consideration in terms of s 24E of the Racial Discrimination Act 1975. The Race Discrimination Commissioner will in any event now have to determine the proper course of action, having regard to s 24E of that Act. When, and assuming, such a referral as contemplated by s 24E of that Act is made, the Commission is entitled to then entertain Mr Elekwachi’s complaint under Pt III Div 3 of the Racial Discrimination Act 1975.
In reaching that conclusion, I have accepted that s 6A(2) of the Racial Discrimination Act 1975 does have operation not simply to address the circumstance where, at the time of the enactment, there were parallel complaints or proceedings under the Racial Discrimination Act 1975 and under relevant State and Territory legislation, but also where such complaints or proceedings occurred after that time.
OTHER MATTERS
In view of my decision on that primary issue, it is not necessary for me to deal at length with the other matters raised by Mr Elekwachi on his application. It is desirable that I advert briefly to those matters. In some instances, they raise matters more appropriately dealt with by the Commission. The Court does not have power under the ADJR Act to provide a review on the merits of the decision complained of, or except as appropriate under the specific grounds specified in s 5 of the ADJR Act to make findings as to the quality of the investigatory processes of the SA Commissioner. The Commissioner has extensive powers available to it to conduct its inquiry under the Racial Discrimination Act 1975.
The Addendum Application sought declaratory orders that the Commission and the SA Commissioner as delegate, through their respective staff, acted “unlawfully and or fraudulently” in concealing material relevant to Mr Elekwachi’s complaint and deliberately breached the agreement. It also sought declaratory orders that (I paraphrase) those persons had not pursued investigations of Mr Elekwachi’s complaint bona fide, including engaging in conduct to “entrap” him into circumstances where his complaint could no longer be pursued before the Commission.
To pursue some of those matters, Mr Elekwachi on the final hearing day of his application sought access to documents which had been discovered to him but not produced for inspection as they were subject to client legal privilege (Pt 3.10, Evidence Act 1995 (Cth)) and sought to subpoena a number of witnesses both as to circumstances relevant to his complaint, and from the SA Commissioner’s staff and from the Commission as to the handling of his complaint. Mr Elekwachi’s application came on for hearing first on 11 September 1997. It was then adjourned to 25 September 1997 so that he could consider in detail material only just produced to him. It was then further adjourned after further hearing, and the completion of the evidence, to 10 October 1997, for submissions so as to enable him to consider fully the evidence adduced. The applications referred to were made on that last occasion. I indicated I would hear the submissions generally, as well as on those particular applications, and would rule generally on them. I further indicated that, if I ruled that Mr Elekwachi could re-open the evidence by calling further witnesses or tendering further documents, I would announce that ruling and fix a further time for the hearing. There was thus some risk that, to some extent, his submissions on the principal application might later have to be expanded or modified. I do not grant those applications. In relation to the documents for which client legal privilege is claimed, in my view they are each confidential communications or confidential documents protected from being led in evidence by ss 118 and 119 of the Evidence Act 1995. In my view, therefore, they are not necessary to be produced on discovery: O 15 r 15, Federal Court Rules; Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645 at 648. In relation to the further proposed evidence, in my discretion I reject the application partly because it is unnecessary, having regard to my decision in favour of Mr Elekwachi in any event, partly because I am not satisfied that the material going to his complaint itself is relevant to this proceeding but is an attempt to have the Court assess the merits of his complaint, partly because I am not satisfied that material going to the quality of the investigation of his complaint is relevant to this proceeding at least so far as he described his purpose to me, partly because the Commission will be in a position to fully investigate and review his complaint, including obtaining such evidence as it considers appropriate, and partly albeit to a lesser extent because of the timing of the application.
In fairness to those involved to date in handling Mr Elekwachi’s complaint, I indicate that I have not seen in the material presently before me any evidence which would lead me to conclude that their conduct was not in good faith, or that they or any of them sought to frustrate Mr Elekwachi in the handling of his complaint or to entrap him into abandoning his potential access to the Commission. As I did not, by reason of my ruling above, hear all the evidence on that topic which Mr Elekwachi wanted to adduce, I do not of course make a concluded finding on those matters.
Mr Elekwachi also submitted that the Equal Opportunity Act 1984 is not a law which furthers the objects of the Convention (as defined in s 3 of the Racial Discrimination Act 1975) and deals with a matter dealt with by the Racial Discrimination Act 1975 so as to fall within s 6A(2)(a) of the Racial Discrimination Act 1975. In view of the decision I have reached on this application, it is not necessary to address that submission. I would be reluctant to do so without the benefit of full submissions.
Mr Elekwachi also submitted that his complaint had wrongly been treated as limited to s 15 of the Racial Discrimination Act 1975, and should have been treated as encompassing ss 9, 18B, 18C and 18E of the Racial Discrimination Act 1975. The latter three sections were introduced into the Act only by the Racial Hatred Act 1995, commencing on 13 October 1995, and thus post-dated Mr Elekwachi’s complaint. His complaint of 27 April 1995, in my view, clearly amounted to a complaint of discrimination in employment in its terms, and so was properly characterised as attracting the operation of s 15 of the Racial Discrimination Act 1995. I do not think error is shown in so doing. Of course, I do not by that decision seek to inhibit the Commission in its conduct of or any determination with respect to Mr Elekwachi’s complaint.
Finally, I note that this application was made on 10 July 1997. No issue was raised under s 11 of the ADJR Act that it was not within time, although it may be that the letter from the president of the Commission to Mrs Elekwachi of 20 March 1997 may have amounted to the furnishing to Mr Elekwachi of the Commission’s decision in writing and its reasons, so as to activate the twenty eight day period prescribed by s 11(3) of the ADJR Act. Mr Elekwachi acknowledged that that letter came to his attention. There is no letter in such terms addressed to, and received by, Mr Elekwachi. His communications, or communications on his behalf, with the Commission and the SA Commissioner persisted beyond that date. The culminating event was a letter from the SA Commissioner of 2 July 1997, and his application was instituted shortly after that time. In those circumstances, and in the absence of any submission to the contrary, I have reached the view that no period is prescribed for the making of this application, and that the application was made within a reasonable time after the decision complained of was made.
RELIEF
I accordingly set aside the decision of the Commission made on or about 20 March 1997, or alternatively made on or about 13 January 1997, that Mr Elekwachi from 10 July 1996 was not entitled to proceed with his complaint made on 27 April 1995 to the Commission.
I declare that Mr Elekwachi has not, by reason of the letter from his solicitors of 10 July 1997 to the SA Commissioner, made a complaint, instituted a proceeding or taken any other action under the Equal Opportunity Act 1984 in respect of the matters the subject of his complaint.
In my view it is appropriate now for the Race Discrimination Commissioner to address the matters to which s 24E of the Racial Discrimination Act 1975 refers, and to determine whether to refer Mr Elekwachi’s complaint to the Commission.
I certify that this and the preceding twenty three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Date:
Applicant appears in person
Counsel for the Respondent: Ms K Eastman
Solicitors for the Respondent Australian Government Solicitor
Counsel and Solicitor for Mr M Ahern
Equal Opportunity Commissioner (SA):
Dates of Hearing: 11 September 1997;
25 September 1997; and
10 October 1997
Date of Judgment: 3 November 1997
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