Francis v State of South Australia
[2013] SAEOT 2
•20 February 2013
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
FRANCIS v STATE OF SOUTH AUSTRALIA
[2013] SAEOT 2
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
20 February 2013
DISCRIMINATION LAW
Complainant alleges discrimination by respondent pursuant to the Equal Opportunity Act 1984 - application made by respondent for the proceedings to be dismissed pursuant to s 96(2)(b) of the Act - whether the complaint is out of time - complaint dismissed.
Equal Opportunity Act 1984 (SA), referred to.
Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382; Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786; Rankin v State Electoral Commissioner [2010] SAEOT 3; Patrick v State of South Australia [2007] SAEOT 2; Somasundaram v State of South Australia [2012] SAEOT 3; Waters v Kuga Pty Ltd & Cusano (1997) Unreported; Parashakis v State of South Australia [1999] SADC 102; Public Service Association of South Austraila v Industrial Relations Commission (SA) (2012) 86 ALJR 862; General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125, considered.
FRANCIS v STATE OF SOUTH AUSTRALIA
[2013] SAEOT 2
This is a decision in relation to an application by the respondent for an order dismissing these proceedings under s 96(2)(b) of the Equal Opportunity Act 1984 (“the Act”).
The Complaint
Ms Francis made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) dated 21 May 2012. The complaint was directed against the Minister for Health. The complaint said:
I received a letter dated 20 March 2012 signed by the Minister by name and individual title of office, in response to a series of letters I wrote to a Minister by another title. This letter response was beyond the jurisdiction of this Minister. The effect of the letter or the intent, was/is to deny me procedural fairness in the investigation of alleged unlawful discrimination based on my physical disability.
The effect on me is that I will have to prosecute the Minister in the High Court on accusation of unlawful discrimination and genocide and represent myself due to the long history of discrimination falsely inferring that mental health patients are not allowed access to protection under all Australian law.
Copy of some correspondence can be found at (http address given).
In 2008 (circa August) Carolyn Lee signed off on a similar letter written to the member for Kaurna who was (then) the Minister for Health & another person was Mental Health Minister.
Under “What factors motivated you to lodge this complaint?” the following was written:
Unlawful discrimination that deems if a person has a certain type of physical disability then they have a mental health problem that automatically cancels out their power of attorney and their legal recognition as a person.
Under “What would you like to see happen that would resolve this complaint?” the following was written:
Access to my right NOT to be unlawfully discriminated against because I have a certain type of physical disability.
The Commissioner referred the complaint to this Tribunal pursuant to s 95B of the Act by letter dated 6 July 2012. Subsequently, the proceedings were amended to substitute the State of South Australia as the respondent.
Further and Better Particulars
Ms Francis filed “Further and Better particulars” on 26 September 2012. This document sets out material under the headings “Disability”, “Identity of partner, marital status, religious appearance or dress”, “Religious appearance or dress”, “Race”, “Victimisation” and “Detriment”. Some of the matters canvassed in the “Further and Better particulars” are outside of the matters raised in the complaint to the Commissioner. Mr Stevens argued that the jurisdiction of this Tribunal is confined to the complaint lodged with the Commissioner and referred to the Tribunal for hearing and determination.[1] We accept this argument. This Tribunal is confined in its consideration of this matter to the complaint set out in Ms Francis’ complaint to the Commissioner. Further explanation of the substance of that complaint may be given by further and better particulars, but new grounds for complaint may not be introduced before the Tribunal. A complaint must be made to the Commissioner at first instance.
[1] Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382
Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786
Rankin v State Electoral Commissioner [2010] SAEOT 3
Patrick v State of South Australia [2007] SAEOT 2
Somasundaram v State of South Australia [2012] SAEOT 3
The Act and the Complaint
The Act makes certain kinds of discrimination unlawful in certain circumstances.[2] The Act also makes victimisation, as defined, unlawful.[3] The Act makes sexual harassment unlawful in certain circumstances.[4]
[2] Parts 3, 4, 5, 5A and 5B
[3] s 86
[4] s 87
In her complaint, Ms Francis complained that the effect of the Minister’s written response to her letters was to “deny me procedural fairness in the investigation of alleged unlawful discrimination based on my physical disability”. In argument, Ms Francis indicated that she experiences a range of physical symptoms. It is her firm belief that at least one and possibly more than one fibre optic cable has been implanted into her body without her consent by an unknown person. She experiences various sensations (which she identifies as originating from electrical sources) and other symptoms, which she attributes to the presence of the fibre optic cable or cables in her body.
In the letter to Ms Francis dated 20 March 2012, which is the letter the principal subject of the complaint under the Act, the Minister informed Ms Francis that the Australian Health Practitioner Regulation Agency (AHPRA) is the body with jurisdiction over the conduct of medical practitioners, and that AHPRA has 10 National Boards, which it supports. The Minister stated, in the letter:
I have no jurisdictional responsibility for the decisions of the National Boards concerning complaints about medical practitioners.
The Minister provided Ms Francis with information about the National Health Practitioner Ombudsman and Ombudsman SA.
There is no basis for a complaint of unlawful discrimination under the Act on the ground of disability (or on any other ground) arising from the Minister’s letter to Ms Francis of 20 March 2012. The information provided by the Minister was, apparently, on the face of the letter, a genuine attempt to provide a helpful response to Ms Francis’ query, and it has not been suggested that there is any evidence to the contrary. No basis has been put forward upon which it could be suggested that the Minister would have replied to any other person in a different manner, who had written to him in a similar vein, but who did not suffer from Ms Francis’ symptoms. There is no basis upon which to allege either that the writing of the letter by the Minister or the content of the letter was discriminatory. In any event, the writing of the letter by the Minister is not one of the circumstances covered by the Act in relation to unlawful discrimination.
In her complaint, Ms Francis mentioned that Carolyn Lee had signed off on a similar letter in 2008. That letter has not been tendered. If it is similar to the Minister’s letter of 20 March 2012, as Ms Francis says it is on the complaint form, then it, also, would not disclose a cause of action under the Act. In any event, though, it was argued on behalf of the respondent that this allegation constitutes a separate complaint which was made to the Commissioner out of time.
Time Limit
Immediately prior to 2 October 2009, the Act provided, in s 93(2):
A complaint must be lodged –
(a)when the alleged contravention is constituted of a series of acts – within six months of the last of those acts;
(b)in any other case – within six months of the date on which the contravention is alleged to have been committed.
Immediately prior to 2 October 2009, there was no provision in the Act for the granting of an extension of time within which a complaint could be brought.
On 2 October 2009, the Act was amended to include s 93(2)(a) and (2b) and s 96B :
s 93(2) A complaint must be lodged –
(a)if the alleged contravention is constituted of a series of acts – within 12 months of the last of those acts;
(b)in any other case – within 12 months of the date on which the contravention is alleged to have been committed.
s 93(2a)The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied –
(a)that there is good reason why the complaint was not made within the stipulated time period; and
(b)that in all the circumstances it is just and equitable to do so.
s 96B(1)If the Commissioner has refused an application for an extension of time within which to lodge a complaint, the applicant may apply to the Tribunal for a review of the decision.
(2) An application for review must be made within 1 month after notification of the decision.
(3) The Tribunal may confirm the decision of the Commissioner or substitute its own decision.
Mr Stevens argued that the provisions of the Act which were in force prior to 2 October 2009 apply to alleged contraventions of the Act which occurred prior to that time. Mr Stevens pointed out that there are no transitional provisions in the Act. There is no reason to believe that the amendments which came into operation on 2 October 2009 were intended to have retrospective effect.
What, then, is the effect of the Commissioner referring a complaint which is out of time, and which relates to events which occurred prior to 2 October 2009, to the Tribunal? Mr Stevens argued that referral to the Tribunal was a proper course for the Commissioner to take, given that the Tribunal is in a better position than the Commission to ascertain as a matter of fact whether a complaint is out of time. Mr Stevens acknowledged that this argument may be contrary to the effect of some prior decisions of the Tribunal.[5] Mr Stevens argued that, once a complaint, to which the now superseded s 93(2) applies, has been referred to the Tribunal, the Tribunal not only has the power to consider whether the complaint was lodged within time, but has a duty to consider that question. Mr Stevens argued that the Act created rights within certain constraints. The right to bring a complaint before the Commissioner (which is a necessary pre-requisite to the complaint being referred to the Tribunal, there being no provision for a complaint to come directly to the Tribunal from the complainant) is constrained by the six month time limit. Mr Stevens argued that a purported complaint outside of that time limit is simply not a complaint under the Act, and is not something that the Tribunal has any jurisdiction to consider. The question of whether there exists a complaint under the Act is a jurisdictional fact which the Tribunal is obliged to determine.[6]
[5] Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382
Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786
Waters v Kuga Pty Ltd & Cusano (1997) Unreported
Parashakis v State of South Australia [1999] SADC 102
Somasundaram v State of South Australia [2012] SAEOT 3
[6] Public Service Association of South Australia v Industrial Relations Commission (SA) (2012) 86 ALJR 862
We accept Mr Stevens’ argument that the Tribunal has the power to consider and determine whether a complaint was made within time, whether the Commissioner had jurisdiction under the Act to deal with it, and whether the Tribunal has jurisdiction under the Act to deal with it, as a question of jurisdictional fact. The decision of the Tribunal in Somasundaram v State of South Australia[7] that the Tribunal has no jurisdiction to consider whether a complaint was out of time is incorrect.
[7] [2012] SAEOT 3
To the extent that Ms Francis’ complaint form of 21 May 2012 sought to place before the Commissioner a complaint in relation to a letter from 2008, that complaint was out of time, and neither the Commissioner nor the Tribunal has jurisdiction in relation to it.
Ms Francis submitted that she would get the same answers today were she to repeat her communication with the Minister’s office. Thus, Ms Francis submitted, the discrimination is on-going and should not be treated as being out of time. This is not a basis upon which the provisions of the Act with respect the time limit may be put to one side.
In any event, as we have said, even within time, the 2008 letter, from Ms Francis’ description of it on the complaint form, did not contain the basis for a complaint under the Act in any event.
We bear in mind Mr Stevens’ submissions that the power to dismiss a complaint must be exercised with great care to ensure that a complainant is not unreasonably deprived of the opportunity to put his or her case. Consideration must also be given to the interest of the parties in not expending time and resources in engaging in futile proceedings.[8]
[8] General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 at 130
Ms Francis’ complaint of 21 May 2012 will be dismissed pursuant to s 96(2)(b) of the Act because it fails to disclose an arguable case under the Act, and has no reasonable prospect of success.
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