Ellenbogen, J. v Human Rights & Equal Opportunity Commission

[1993] FCA 864

John Ellenbogen v Human Rights and Equal Opportunity Commission, Race Discrimination Commissioner, Mrs Irene Moss and Human Rights Commissioner, Mr Brian Burdekin
Discrimination Legislation

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

WHITLAM J

No. NG 868 of 1992

FED No. 864/93 Number of pages - 15

Catchwords

Discrimination Legislation - Human Rights and Equal Opportunity Commission Act 1986 - arrest and detention by NSW State Police not "acts" subject to inquiry by Human Rights Commissioner

Discrimination Legislation - Racial Discrimination Act 1975 inquiry by Race Discrimination Commissioner - no obligation to seek information and documents suggested by complainant or to undertake conciliation before referring matter to Human Rights and Equal Opportunity Commission

Human Rights and Equal Opportunity Commission Act 1986 s 20(1)(2) and (6)

Racial Discrimination Act 1975, ss 22, 24(1) and 24E(1)

Dietrich v The Queen (1990) 67 ALJR 1

SYDNEY, 20 April, 27 May 1993 (hearing), 30 November 1993 (decision)

#DATE 30:11:1993

Appearances

The Applicant appeared in person.

Mr I.J. Clyde (solicitor) appeared for the Respondents.

Bronwyn Scheelbeck (Human Rights and Equal Opportunity Commission) Solicitor, appeared for the Respondents.

Order

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondents incurred after 19 February 1993, including the costs of the hearing.

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

WHITLAM J

The applicant, Mr John Ellenbogen, brings this proceeding against three respondents: the Human Rights and Equal Opportunity Commission ("the Commission"), Mrs Irene Moss, who is the Race Discrimination Commissioner appointed under the Racial Discrimination Act 1975 ("RDA") and Mr Brian Burdekin, who is the Human Rights Commissioner appointed under the Human Rights and Equal Opportunity Commission Act 1986 ("HREOCA"). Mr Ellenbogen has conducted the proceeding by himself without a solicitor. Although he has not filed an application in the prescribed form, his application has been treated as an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") or for relief under s 39B of the Judiciary Act 1903. The respondents have not objected to the competency of the application, and by the time of the hearing there was no difficulty in identifying the decisions which were the subject of challenge.

Mr Ellenbogen is dissatisfied with the way in which the respondents have dealt with two letters which he sent to the Commission. The first was written on 5 August 1992 to the Commission "c/- Race Discrimination Commissioner" in the following terms:

"Re.: Lodgment of Complaint

Dear Madam,

This is to file a complaint with you under the Racial Discrimination Act 1975 against Ald. Joy Anderson of the Blue Mountains City Council (BMCC), and against Mr Ronald Cecil Fennel, Town Clerk of BMCC and against Mr Colin Gregg, Deputy Town Clerk of BMCC, and against other Alderman of the BMCC, which you may find in your inquiry to also have committed unlawful racial discrimination against me within the last twelve months.

The Blue Mountains City Council has a policy of public participation in matters coming before Council. This policy provides for members of the public to address Council Committees for three to five minutes and voice their concerns and views on matters of business before Council, after, they have registered to speak.

In early September 1991 I registered to address Council's Finance, Policy and Resources Committe[sic] on an item. I was not allowed to address Council. Some days later there was another public meeting in Lawson, which I attended. After the formal end of that meeting I spoke to Ald. Anderson and asked her, why she had refused to let me address Council earlier that week. Ald. Anderson stated the reason was that I was not a citizen of Australia. When I asked her who told her that, she said it had been discussed in the Mayor's room and the Town Clerk had said so then, and that Col Gregg had confirmed it later. When I asked her what difference it made, as I was a bona fide resident of the area, she said, when you are not a citizen you do not have a right to speak, or words to that effect.

I claim the foregoing statements and explanations by Ald. Anderson to be evidence of breaches of the racial discrimination provisions of the Act. I therefore claim that she and other Alderman of the BMCC committed unlawful racial discrimination then, and many times over subsequent to that date, by refusing to allow me to address Council Committees on matters on which I had asked to address council. I would therefore ask you to deal with this complaint accordingly."

The Commission acknowledged receipt of this letter saying it "will be considered by an officer of the Commission as soon as possible." Mr Ellenbogen immediately responded pointing out that his letter "concerned the filing of a complaint under the Act."

By letter dated 15 August 1992 Mr Ellenbogen again wrote to the Commission, this time addressed "Human Rights Australia, c/- Human Rights Commissioner." This is the second of the two letters grounding Mr Ellenbogen's claims in this proceeding, and it is also convenient to set out its full text:

"HUMAN RIGHTS COMPLAINT

Dear Mr Burdekin,

This is to file a complaint with you under the Human Rights and Equal Opportunity Commission Act 1986 regarding the following:

1. On 11 August 1992 I went to a public meeting of the Blue Mountains City Council at the Springwood Community Centre, starting at 7.30 p.m. Police were present that night outside the hall when I arrived, and throughout the evening.

2. It appears police were stalking me that night without my knowledge in a Gestapo-like fashion. When I left the meeting at about 11.10 p.m. police arrested me. I had neither provoked them, nor done anything unlawful. I was taken to the Police Station at Springwood, deprived of most of my personal belongings I had with me, and put into jail.

3. Neither at the time of arrest, nor subsequently at the Police Station nor in the jail was I shown nor given a warrant for my arrest, even though I asked to be given or at least shown a warrant, nor was I charged with anything. My repeated requests to be allowed to go before a Court or a Magistrate were refused as well. I was told I was not entitled to any of those requested matters.

4. At least at two occasions while I was in jail, I requested from the police (the custodial officers) to be provided with some paper and a pen and an envelope for the purpose of writing out a complaint to the Human Rights and Equal Opportunity Commission under the Human Rights and Equal Opportunity Commission Act. My requests were denied each time. I was told I would not be allowed to write anything and that they knew nothing of the Act I referred to.

Please let me know, how the Human Rights and Equal Opportunity Commission intends to deal with this complaint and what I should do to protect myself against a repeat of that dreadful experience.

I look forward to your reply."

The Commission had established administrative procedures for handling what purported to be complaints under RDA or HREOCA. Under those procedures letters, such as Mr Ellenbogen's of 5 and 15 August 1992, were characterised as "enquiries ", and an officer called the Chief Conciliator determined whether such an enquiry was to be "accepted" as a complaint under RDA or HREOCA. Where the Chief Conciliator determined that the enquiry related to "matters clearly outside jurisdiction", a letter declining action was to be sent to the putative complainant signed for the Secretary of the Commission.

In accordance with these procedures, the matters raised in Mr Ellenbogen's letters were considered by the Acting Chief Conciliator, Ms Kim Rosser. In her affidavit she said:

I concluded that the applicant's letter of 5 August 1992 did not disclose a complaint of an alleged unlawful act under Part 11 of the RDA and that the applicant's letter of 15 August 1992 did not disclose a complaint of an act or practice inconsistent with or contrary to any human right."

Ms Rosser then arranged for a courteous letter dated 25 August 1992 to be sent to Mr Ellenbogen signed on behalf of the Secretary of the Commission, describing its investigatory functions. This letter suggested that Mr Ellenbogen contact the State Ombudsman about the conduct of the police officers, but informed him that the matters raised in his letters of 5 and 15 August 1992 "do not fall within the Commission's jurisdictions."

Mr Ellenbogen responded, insisting that his letters were complaints, "not inquiries." Ms Rosser arranged for a letter dated 3 September 1992 to be sent to Mr Ellenbogen, explaining that the Commission refers to initial letters from the public as enquiries and that an enquiry is deemed to be a complaint when the Commission accepts that the matters raised fall within the jurisdiction of the Commission. Mr Ellenbogen did not accept this explanation for his letters being dealt with "at an administrative level", and he requested a statement pursuant to s 13 of the ADJR Act. The basis upon which jurisdiction was declined by the Commission is usefully summarized in the following excerpt from the statement furnished to Mr Ellenbogen:

"By letter dated 3 September 1992 it was explained to you that as a citizenship-based discrimination was not yet covered by the RDA, the 5 August enquiry was not within jurisdiction. With regard to the enquiry concerning the behaviour of the police in arresting and detaining you, it was noted that the Commission had no jurisdiction over State police: only acts or practices of the Commonwealth could be investigated. Accordingly, the 15 August 1992 enquiry was similarly not within jurisdiction."

On 24 November 1992 Mr Ellenbogen commenced this proceeding claiming the following relief:

1. A DECLARATION OF RIGHT to have his complaint filed with the Human Rights and Equal Opportunity Commission on 05 August 1992 under the Racial Descrimination [sic] Act 1975 referred to the Human Rights and Equal Opportunity Commission under Section 24 of the Act.

2. A DECLARATION OF RIGHT to have his complaint dated 15 August 1992 and filed with the Human Rights and Equal Opportunity Commission under the Human Rights and Equal Opportunity Commission Act 1986 inquired into by the Commission under Section 20 of the Act.

And ... by way of interlocutory relief:

3. An ORDER MANDAMUS requiring the Race Discrimination Commissioner to deal with the complaint filed on 05 August 1992 without further delays as a complaint in line with the provisions of Section 24 of the Racial Discrimination Act 1975, as amended.

4. An ORDER MANDAMUS requiring the Human Rights Commissioner to deal with the complaint dated 15 August 1992 without further delays as complaint, and to inquire into that Human Rights Complaint, and to give due consideration to the provisions contained in Section 12 of the Human Rights and Equal Opportunity Commission Act 1986, and to other relevant sections of that Act, in these inquiries."

In his affidavit filed in support of his application, Mr Ellenbogen said;

"11. I submit, that the enclosed correspondence shows clearly, that two separate and formal complaints have been filed in writing.

12. I further submit, that the two complaints have not been dealt with as provided for in the relevant legislation, nor in line with the international commitments and treaties Australia entered into with the United Nations, and which Australia has ratified.

13. I submit that it appears, that the RDC and the HRC have created an administrative buffer not provided for in the legislation, by way of a Secretary and an Assistant Secretary, acting for them, but apparently not in their name, to prevent formal written complaints from having serious violations of Human and Civil Rights dealt with as provided for in the relevant legislation.

14. By this administrative buffer and administrative procedure some anonymous and faceless persons decide behind doors closed to the public, which complaints should be allowed to surface and be properly dealt with, and which should not, and I submit that this is contrary to the spirit and intent and wording of the legislation.

15. I submit my rights have been violated, and I have been prevented from putting before the appropriate body or bodies the matters of racial discrimination and Human Rights violations by administrative measures.

16. 1 submit those violations have aggrieved me, and I am still aggrieved by them, and the remedy or remedies open to me have been blocked by administrative measures to fobb [sic] me of."

The references in paragraph 13 to "the RDC and the HRC" are, of course, to the offices occupied respectively by Mrs Moss and Mr Burdekin.

Mr Ellenbogen's submissions were, in the main, correct. Belatedly the Commission's staff realized this. They should have done so earlier. It is not necessary at this stage to analyze the RDA provisions, but in Proudfoot v. Human Rights and Equal Opportunity Commission (1991) 100 AIR 557 it had been held that the Sex-Discrimination Act 1984, the equivalent provisions of which are practically identical with RDA, required consideration by the Sex Descrimination Commissioner under that Act. Neaves J said that the Commission was obliged to notify the Commissioner where a complaint relating to an alleged unlawful act was made to the Commission, and further that the question whether such an act was not unlawful was not to be decided at the threshold by a member of staff of the Commission, but by the Commissioner to whom the question had been committed by statute for consideration. The HREOCA provisions are different, but s 8(6) of HREOCA expressly provides that the function of inquiring into an act in respect of which a complaint has been made to the Commission is to be performed by the Human Rights Commissioner. This means that it is for the Commissioner, not the Commission, to decide whether an act complained of is "not inconsistent with or contrary to any human right." The Commission staff changed tack.

On 1 February 1993 Mr Burdekin sent the following letter to Mr Ellenbogen:

"Re your "Human Rights Complaint" dated 15 August 1992

I refer to your letter dated 15 August 1992 addressed to "Human Rights Australia".

Pursuant to s.20(2)(c)(ii) I have decided not to inquire into your complaint, as in my opinion it is misconceived. The evidence and material facts upon which I have relied, together with my reasons for the decision, are set out below.

Material Facts

1. The acts alleged are an arrest, subsequent detention, the failure of the police to issue a charge, the failure of police to take you before a magistrate upon request and the failure of police to supply writing materials to enable you to send a complaint to the Commission.

2. The acts alleged were carried out by unidentified members of the NSW State Police.

The Evidence

The evidence upon which the findings of material fact were based is contained in your letter dated 15 August 1992.

Reasons for the Decision

1. The acts alleged were not carried out by the Commonwealth or an authority on behalf of the Commonwealth nor were they carried out pursuant to a Commonwealth enactment.

2. The acts alleged are not "acts" within the meaning of s.11(1)(f) of the HREOC Act.

3. The acts alleged do not raise the possibility of discrimination in employment or occupation contrary to s.31(b) of the HREOC Act as they did not occur in the context of employment or occupation.

4. I am not vested with any other function which would allow me to inquire into the acts which you have alleged.

I suggest that you contact the Office of the Ombudsman (New South Wales) if you wish to pursue your concerns, as the Ombudsman, unlike myself, has jurisdiction to investigate your complaint. The office of the Ombudsman is located at Level 3, 580 George Street, Sydney and can be contacted by telephone on [phone]."

The Assistant Secretary, Legal Policy and Conciliation of the Commission then wrote to Mr Ellenbogen on 5 February 1993 as follows-

"Ellenbogen -v- HREOC and Others In the Federal Court of Australia Matter No. G 868 of 1992

I refer to your letter dated 5 August 1992 addressed to the "Human Rights and EO Commission" and to the Secretary's letters dated 25 August 1992 and 3 September 1992.

The Commission has since decided, pursuant to s-24(1) of the Racial Discrimination Act 1975 (the "RDA"), to notify the Race Discrimination Commissioner of the matters referred to in your letter to the Commission dated 5 August 1992.

Accordingly, the Race Discrimination Commissioner will in due course write to you and the Blue Mountains Council to confirm receipt of your complaint and initiate the inquiry and conciliation procedures provided for by Division 2 of Part III of the Act.

It is anticipated that by the time of the next Directions Hearing before Justice Lockhart, on 19 February 1993, the Chief Conciliator will have allocated responsibility for your complaint to an officer of the Commission's conciliation section.

If you have any queries about the Commission's procedures with respect to your complaint under the Act, please do not hesitate to contact the Chief Conciliator."

Mr Ellenbogen was informed by letter dated 18 February 1993 signed on behalf of the Chief Conciliator that his letter of 5 August 1992 had been "accepted as a complaint under the Racial Discrimination Act 1975." In the same letter he was asked to furnish any additional information to Ms Rosser. On 9 March 1993 Mrs Moss wrote to Mr Ellenbogen confirming that his complaint was being investigated under s 9 of RDA and directed any "queries" about his complaint to Ms Mary O'Sullivan of the Commission. At this stage one could be forgiven for thinking that the procedural matters about which Mr Ellenbogen complained in his affidavit might have been regarded as having been remedied.

On 9 March 1993 Mrs Moss also wrote to Alderman Bob Clarke, the Mayor of the Blue Mountains City Council, informing him of Mr Ellenbogen's complaint which she described as being "against" the Council. Mrs Moss said that the complaint appeared to involve s 9 of RDA and, in order to assist her investigation, asked Alderman Clarke to send Ms O'Sullivan his comments and a copy of the minutes of the Committee meeting referred to by Mr Ellenbogen.

Alderman Clarke replied on 24 March 1993, and I shall set out part of his letter to Ms O'Sullivan:

"As I understand from your letter, the complaint is essentially against Alderman Joy Anderson, Mr. Ron Fennell and Mr. Colin Gregg. Other Alderman of Council are also joined in the complaint should the inquiry find that they have also committed unlawful racial discrimination.

The complaints against Aldermen Anderson, Mr. Fennell and Mr. Gregg would, in my opinion, appear to be against them as individuals. In that connection I have provided Alderman Anderson with a copy of the Commission's letter containing Mr Ellenbogen's complaint and suggest that you correspond further with her direct.

Mr. Fennell and Mr Gregg are no longer employed by Council.

In regard to the refusal of Aldermen to allow Mr Ellenbogen to address Council Committees, I confirm that there have been occasions when this has occurred. There have also been many occasions since 1986 when Mr. Ellenbogen has been permitted to speak. Lack of clerical resources has precluded tabulation of relevant data since 1986. However, this detail has been extracted for the years 1991 and 1992 and is attached to this letter.

To the best of my knowledge, the reason Mr. Ellenbogen was not permitted to speak on 9th September, 1991 was not specified by the Committee and hence was not recorded in the minutes. Having been present on most, if not all occasions that Mr. Ellenbogen wished to speak and was refused, I believe it would be correct to say that it was because, in the opinion of many Aldermen, Mr. Ellenbogen had, in the past, wasted the Committee's time with disruptive measures and had constantly criticised Council's staff. This certainly seemed to be the majority view of Aldermen for most of 1991. However, prior to that view being formed, there were numerous occasions in immediately preceding years when he was permitted to make such addresses. In fact, no other member of the community has been permitted so many public addresses.

I can clearly state that Council has never discriminated against Mr. Ellenbogen on the grounds of race. As indicated earlier, he has not been allowed to speak at Committee Meetings where it is considered that he may waste the Committee's time or criticise staff."

The attachment referred to in the above excerpt from Alderman Clarke's letter showed that Mr Ellenbogen had applied to address the Council's committees on 21 occasions since 9 September 1991 and had been permitted to do so on 16 of those occasions. The minutes of the Council's Finance, Policy and Resources committee meeting of 9 September 1991 were also attached to Alderman Clarke's reply. These record eleven aldermen present at the meeting, including Alderman Anderson and Alderman Clarke (who was not Mayor at the time). The minutes report that, on a business item relating to renewal of a bank loan, the Committee "declined to hear from Mr John Ellenbogen and Mr John Pascoe." Alderman Clarke's reply and its attachments were sent to Mr Ellenbogen for his comments by Ms O'Sullivan on 25 March 1993.

Ms O'Sullivan spoke to Alderman Anderson on 29 March 1993, after which she wrote to Mr Ellenbogen:

"I refer to your complaint under the Racial Discrimination Act 1975. Alderman Anderson has provided the following comments in response to the allegations in your complaint:-

Alderman Anderson says that whenever Mr Ellenbogen spoke at Council meetings it didn't matter what the topic was he would use the opportunity to attack Council staff indiscriminately, and one staff member (his successor) in particular.

She says she was "sick of this" and, in a fit of frustration, made a comment like "You're not even a citizen and you've been here for years'. Alderman Anderson states she shouldn't have said it and it wasn't the real reason she stopped him from speaking anyway.

If you consider the above comments, and the letter of the Blue Mountains City Council of 24 March 1993 to be a satisfactory response to the your complaint, I will advise the Commissioner and the file will be closed. Alternatively, I would appreciate advice, by 5 April 1993 as to your proposals for the settlement of this matter so that I might assess the prospects for conciliation."

Mr Ellenbogen wrote to Mrs Moss on 30 March 1993. He asserted that his complaint also involved ss 17, 18 and 18A of RDA and sought to know "which other persons you have included and/or are going to include in your present inquiry." Mr Ellenbogen also took issue with many of the statements in Alderman Clarke's letter, requested information, and suggested how Mrs Moss should conduct her inquiry. His letter contained nothing remotely resembling a settlement proposal.

On 7 April 1993 Mrs Moss wrote to Mr Ellenbogen as follows:

"I refer to your complaint against the Blue Mountains City Council and to your letter of 30 March 1993.

I have carefully considered you complaint and am of the opinion that it cannot be settled by conciliation.

Accordingly, I propose to refer the matter to public inquiry pursuant to section 24E(1)(a) of the Racial Discrimination Act. A report relating to my inquires into the matter will be prepared shortly."

Mr Ellenbogen then wrote to Mrs Moss by letter dated 10 April 1993, claiming (inter alia) that his letter of 5 August 1992 involved "several complaints" and referred to a "number of acts of unlawful racial discrimination committed by a number of separate and individually responsible persons."

During the hearing Mr Ellenbogen finally formulated his claims in his amended application this way:

"A) In regard to the DENIAL OF HUMAN RIGHTS complaints:

1. A DECLARATION OF RIGHT that the provisions of Section 20, Sub-section 6, of the Human Rights and Equal opportunity Commission Act 1986 are fully applicable in relation to acts done and/or omitted to be done by members of the NSW Police Force and other NSW based "custodians", and enforcible by all relevant other provisions contained within the Human Rights and Equal Opportunity Commission Act 1986 for the benefit of the Applicant.

2. A DECLARATION OF RIGHT to have his complaint dated 15 August 1992 and filed with the Human Rights and Equal Opportunity Commission under the Human Rights and Equal Opportunity Commission Act 1986 inquired into by the Commission under Section 20 of the Act.

3. An ORDER requiring the Human Rights Commissioner to deal with the complaint dated 15 August 1992 without further delays as a complaint, and to inquire into that Human Rights Complaint, and to give due consideration to the provisions contained in Section 12 of the Human Rights and Equal Opportunity Commission Act 1986, and to other relevant sections of that Act, in these inquiries.

4. A DECLARATION OF RIGHT that all provisions of the Human Rights and Equal Opportunity Commission Act 1986 apply in regard to the Human Rights complaint submitted by the Applicant to the First Respondent and referred to the Human Rights Commissioner on 18 January 1993, and that the Complaint submitted by the Applicant was not and is not misconceived pursuant to section 20(2)(c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986.

5. An ORDER that the decision of the Human Rights Commissioner as contained in his letter of 01 February 1993 is set aside.

B) In regard to the RACIAL DISCRIMINATION complaints:

6. An ORDER requiring the Race Discrimination Commissioner to sufficiently, if not thoroughly, inquire into the several complaints of Unlawful Racial Discrimination filed with the Race Discrimination Commissioner on 05/08/92, at least to the extent of determining the subject matters raised in item 8 and item 9 of the letter dated 30 March 1993 to the Australian Race Discrimination Commissioner, before the Race Discrimination Commissioner refers the several complaints to public inquiry as quickly as possible.

7. A DECLARATION OF RIGHT to have his several complaints filed with his letter of 05 August 1992 to the Human Rights & EO Commission, c/o Race Discrimination Commissioner, under the Racial Discrimination Act 1975, referred to the Human Rights and Equal opportunity Commission under Section 24E(1)(c) of the Act.

8. A DECLARATION OF RIGHT that discrimination on the basis of citizenship in other than voting rights and the issuing of a passport and some matters of national security and national defence is discrimination the basis of national origin under the Racial Discrimination Act 1975, as amended, and under the International Covenant [sic] on the Elimination of ALL Forms of Racial Discrimination, as contained in Schedule 1 of the Race Discrimination Act 1975.

9. A DECLARATION OF RIGHT that the provisions of Section 24(2)(c) of the Racial Discrimination Act 1975 may not be applied by the Race Discrimination Commissioner in regard to the Race Discrimination Complaint submitted by the Applicant to the First Respondent and referred to the Race Discrimination Commissioner on or about 05 February 1993."

It is convenient to deal first with the decision expressed in Mr Burdekin's letter of 1 February 1993. The Commission is established under HREOCA. That Act provides for the commission's functions relating to human rights in Division 3 of Part II, s 20 of which deals with the making of complaints. As I have mentioned, any inquiry into a complaint is to be undertaken by the Human Rights Commissioner appointed under HREOCA.

Section 20(1) of HREOCA provides that, subject to s 20(2), there is an obligation to inquire into a complaint alleging that "an act or practice is inconsistent with or contrary to any human right." The words "act" and "practice" and the expression "human rights" are defined in s 3(1) as follows:

"'act' means an act done:

(a) by or on behalf of the Commonwealth or an authority of the Commonwealth;

(b) under an enactment;

(c) wholly within a Territory; or

(d) partly within a Territory, to the extent to which the act was done within a Territory;"

"'human rights' means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument;"

"'practice' means a practice engaged in:

(a) by or behalf of the Commonwealth or an authority of the Commonwealth;

(b) under an enactment;

(c) wholly within a Territory; or

(d) partly within a Territory, to the extent to which the practice was or is engaged in within a Territory;"

The definitions of "authority" and "enactment" need not be set out. The "Covenant" is defined as the international Covenant on Civil and Political Rights, a copy of which is set out in Schedule 2 to HREOCA. Section 4(1) provides that, in the definition of "human rights", the reference to the rights and freedoms recognised in the Covenant shall be read as a reference to "the rights and freedoms recognised in the Covenant as it applies to Australia."

It will be seen at once that Mr Burdekin is unquestionably correct and that the acts alleged against the NSW Police are not "acts" within the meaning of s 11(1)(f) of HREOCA. The words "act" and "practice" are, by contrast, given in Division 4, dealing with equal opportunity in employment, an extended definition in s 30(1) to include acts done or practices engaged in by States.

Mr Ellenbogen submits that the Covenant is part of Australian domestic law. His confusion is perhaps understandable in a layman. However, to an Australian lawyer, it is axiomatic that the rights and obligations contained in the Covenant are not incorporated into Australian law unless specific legislation is passed implementing its provisions. No such legislation has been passed; Dietrich v. The Queen (1992) 67 ALJR 1 at 6.

It is, accordingly, not necessary to trawl through the rights and freedoms recognised in the Covenant. Section 20(6) of HREOCA provides (so far as relevant):

(6) A person who is detained in custody (in this subsection and subsection (7) referred to as the "detainee") is entitled:

(a) upon making a request to the persons (in this subsection and subsection (7) referred to as the "custodian") in whose custody the detainee is detained, or to any other person (in this subsection and subsection (7) referred to as a custodial officer") performing duties in connection with the detention:

(i) to be provided with facilities for preparing a complaint in writing under this Division, for giving in writing to the Commission, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and

(ii) to have sent to the Commission, without undue delay, a sealed envelope delivered by the detainee to the custodian or to a custodial officer and addressed to the Commission; ...".

Mr Ellenbogen claims to have been denied this entitlement. That may be a matter he could agitate in proceedings against his custodian or custodial officer, but such a denial plainly has nothing to do with the rights and freedoms recognised in the Covenant. There is no obligation upon Mr Burdekin to inquire into a complaint of that type.

Section 20(2) of HREOCA provides:

"(2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if;

(a) the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;

(c) in a case where a complaint was made to the Commission in relation to the act or practice:

(ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance;"

Mr Burdekin relied on this power not to inquire into the acts complained of. Not only was it open to him to do so, it is difficult to see what other course he could have taken. It follows that I think Mr Burdekin has dealt with Mr Ellenbogen's complaint dated 15 August 1992 according to law.

The complaint of 5 August 1992 requires consideration of the RDA provisions. Part III of RDA deals with inquiries and civil proceedings. Inquiries into alleged infringements of Part II are to be carried out by the Race Discrimination Commissioner, and are dealt with in Division 2. Paragraph 9 of Mr Ellenbogen's amended application has been overtaken by events because Mrs Moss did not purport to rely on s 24(2)(c) of RDA and, in any event, the complaint was indisputably made within 12 months. This leaves the relief Mr Ellenbogen seeks in relation to performance by Mrs Moss of her inquiry.

Despite what Mr Ellenbogen said in his letter to Mrs Moss, a 9 of RDA is the important provision of Part II for the purpose of his complaint because as 17, 18 and 18A must relate to another provision of that Part. RDA did incorporate the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention") into Australian domestic law. Section 9 of RDA, so fas as relevant provides:

"9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference/based on/race, colour, descent or national or ethnic origin/which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

..."

The Convention is set out in the RDA Schedule, and Article 5 includes a political right "to take part in the Goverment as well as the conduct of public affairs at any level." It appears to have been assumed that the right to address committee meetings of a local government body is such a right. Paragraph 2 of Article 1 of the Convention provides:

"2. This Convention shall not apply to distinctions, exclusions, restrictions or preference made by a State Party to this Convention between citizens and non-citizens."

This was the provision originally relied on by Ms Rosser in determining that any discrimination suffered by Mr Ellenbogen was not unlawful.

There is no evidence why Mrs Moss took a different view to that of Ms Rosser, and decided to inquire into the alleged discrimination. However, I was informed by Mr Clyde, who appeared for the respondents, that "occasionally somebody is cloaking justiciable discrimination by saying citizenship. Accordingly, an inquiry takes place to investigate whether discrimination on the basis of, say, national or ethnic origin may be concealed behind the excuse that a person is not a citizen. Again there is no evidence of Mr Ellenbogen's citizenship (if any), but it appears to have been assumed that he is not an Australian citizen.

Mr Ellenbogen submits that Mrs Moss is obliged to engage in conciliation. He points to the provisions of s 24(1) of RDA that the Race Discrimination Commissioner "shall" inquire into an act complained of "and endeavour, by conciliation, to effect a settlement of the matter to which the act relates." I do not accept this submission. The clearest contrary indication is provided by s 24E(1):

"24E. (1) 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."

This provision shows it is entirely a matter for Mrs Moss to decide whether she attempts conciliation and at what stage she refers a matter to the Commission. Nor is there any provision in RDA which permits a complainant to dictate the way in which the Commissioner must undertake her inquiry.

The assertion of Mr Ellenbogen that his letter of 5 August 1992 involves "several complaints" was made late in the day and, no doubt, was inspired by Alderman Clarke's comments. It is true that under s 22 of RDA a complaint must allege that "a person" has done an act that is unlawful by virtue of a provision of Part II. Mr Ellenbogen's complaint raises allegations against named and unnamed individuals. However, as s 24E of RDA makes it clear it is the "matter" to which the proscribed act relates that is referred to the Commission. That will pick up all persons covered by the complaint, and it will be up to the Commission to see that such persons are, if necessary, joined as parties to any inquiry under Davision 3 of Part III. (It seems implicit in s 23(e) of RDA that, where there is a complainant, he nominates the "respondents" at the inquiry by the commission. I must also say that I find it difficult to see how anybody other than the Council itself can commit the discriminatory act here complained of, though perhaps one of the individuals could incite the proscribed act under s 17 of RDA.)

There is, of course, no entitlement to a public inquiry such as Mr Ellenbogen seeks in paragraph 6 of his amended application. (See s 25H of RDA.) Nothing that Mrs Moss has said in her letter of 7 April 1993 indicates any basis upon which this Court should interfere with her decision to refer the matter in Mr Ellenbogen's letter of 5 August 1992 to the Commission. Nor has Mr Ellenbogen advanced any reason at all why the Court should grant a declaration as to the true construction of RDA and the Convention, such as that sought in paragraph 8 in advance of the Commission holding its inquiry. It will be for the Commission to determine whether the alleged act is based on one of the specified grounds and whether it has the stated purpose or effect. It will, no doubt, do this against the background that the Convention does not condemn and prohibit distinctions based on the fact that a person is not a citizen

The application must be dismissed. So far as costs are concerned, the respondents are entitled to have the applicant pay their costs incurred after 19 February 1993, including the costs of the hearing.