Gahan v Ball - [2012] FMCA 1192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAHAN v BALL

[2012] FMCA 1192

HUMAN RIGHTS – Application in respect of alleged religious discrimination in employment – Human Rights Commission termination complaint – whether open to applicant to bring proceeding in Federal Magistrates Court – respondent applying for summary dismissal of application – application having no prospects of success as Court not having jurisdiction.

Federal Magistrates Act 1999, s.17A
Australian Human Rights and Equal Opportunity Commission Act 1986, ss.46PH, 46PO
Administrative Decisions (Judicial Review) Act 1977, s.5

Applicant:

JOHN PETER GAHAN

Respondent:

JODIE BALL

File Number:

MLG 1260 of 2012

Judgment of:

Burchardt FM

Hearing date:

7 November 2012

Date of Last Submission:

7 November 2012

Delivered at:

Melbourne

Delivered on:

18 December 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Lindley (by telephone)

Solicitors for the Respondent:

Australian Human Rights Commission

ORDERS

The application filed 9 October 2012 be dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1260 of 2012

JOHN PETER GAHAN

Applicant

And

JODIE BALL

Respondent

REASONS FOR JUDGMENT

This is an application by the respondent seeking the summary dismissal of the applicant’s application filed on 9 October 2012. The respondent’s response filed 31 October 2012 relevantly asserts that:
“The application is invalid and not within the jurisdiction of the Court. It should be struck out.”
For the reasons that follow, notwithstanding that I have a considerable amount of sympathy for Mr Gahan who is clearly aggrieved by the conduct of which he complains, I think that the respondent is correct in that the application must be dismissed. Whether it should be dismissed within the Court’s inherent power to control its own proceedings or pursuant to section 17A of the Federal Magistrates Act 1999 is not, as I hope will become apparent, material.
The applicant’s application asserts at paragraph 4 that the relevant Act under which discrimination is claimed is the Racial Discrimination Act 1975. At paragraph 5, which requires the applicant to state all sections of the Act that are relevant to this claim, the words “religious discrimination” are inserted. In paragraph 13 under the heading “The respondent/s” and in response to the question “What is your relationship to the person or organisation against whom you bring this application?” the applicant identified “Former employee of person/organisation.”
The respondent is only identified under the heading on the first page and in the Important Notice to Respondent/s on page 4. It is clear that Ms Ball is an officer of the Australian Human Rights Commission but I note that under the phrase “If there are two or more respondents, provide details:” the applicant inserted “Australia Post.”
The application appends a letter from Ms Ball to Mr Gahan dated 11 September 2012 which, under the heading “Your complaint against Australia Post”, asserts:
“I am writing to advise you of my decision regarding your complaint against Australia Post alleging discrimination on the basis of religion in employment under the Australian Human Rights Commission Act 1986 (Cth) (AHRCA).”
From that correspondence, it is apparent that Mr Gahan’s complaint was that he was:
“…offered significantly less opportunities for overtime than other employees in similar roles and that the reason for this was that your manager was of the Muslim faith and you are a Buddhist. You allege that this constitutes religious discrimination in employment.”
The letter records a response from Australia Post denying discrimination, records further information provided by the applicant and refers to the Australian Human Rights and Equal Opportunity Commission Act 1986 (“the HR and EOC Act”). The letter records the decision of Ms Ball not to continue to inquire into the complaint because it is lacking in substance and gives the reasons for that decision. Relevantly, the letter asserts:
“On the basis of the information before me, I consider that there is insufficient evidence to support your claim that decisions made in relation to overtime opportunities were made because of your religion or the religion of other employees. Other than your assertion and belief that this was the case, I have not been provided with any other evidence which supports your allegation. I am of the view that there is insufficient evidence before me to support that in relation to the allocation of overtime Australia Post have subjected you to an distinction, exclusion or preference on the basis of religion that has the effect of nullifying or impairing your equality of opportunity or treatment in employment or occupation. I am therefore of the opinion that your complaint is lacking in substance.”
The letter went on under the heading “Possible further action” to say:
“If you think that my decision in relation to this complaint is not legally correct you may apply for a review of the decision by the Federal Court of Australia or the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court does not review the merits of the case but may refer the matter back to the Commission for further consideration if it finds that I was wrong or did not exercise my powers properly.”
When the matter came before the Court, counsel for Ms Ball, who appeared by telephone, referred to the matters set out in the grounds of opposition listed in the response. Put shortly, counsel submitted that religious discrimination is a complaint only prosecutable under the HR and EOC Act. Unlike other forms of discrimination such as disability discrimination, sex discrimination and the like, there is no equivalent provision to s.46PO of the Act in respect of religious discrimination which allows a complainant to bring a terminated complaint to the Court.
In response to a question from the Bench, it became apparent that Mr Gahan had read Ms Ball’s letter to him but had not noticed the reference to the Administrative Decisions (Judicial Review) Act 1977. He had been of the belief that he was entitled to refer the matter to this Court within 28 days as the letter indicated. He had simply totally failed to understand the reference to the Administrative Decisions (Judicial Review) Act.
Mr Gahan read a document to the Court which has been marked as exhibit A1 and it is clear that his complaint is to do with the fact (as believed by Mr Gahan) that his shift manager declined to offer him overtime every Saturday due to religious prejudice because he is not a Muslim and therefore considered to be an infidel.
Section 3 of the HR and EOC Act provides interpretative definitions. Discrimination is defined as:
““discrimination”, except in Part IIB, means:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing the equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that
(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act.”
Unlawful discrimination is defined as:
““unlawful discrimination” means any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a) Part 2 of the Disability Discrimination Act 1992; or
(b) Part II or IIA of the Racial Discrimination Act 1975; or
(c) Part II of the Sex Discrimination Act 1984.”
Complaint is defined as :
““complaint”, except in Part IIC, means a complaint lodged under Division 1 of Part IIB.”
Part IIC of the Act dealing with the referral of discriminatory awards and determinations is plainly irrelevant here.
A complaint is lodged pursuant to s.46P of the Act. That section is part of Part IIB of the Act dealing with redress for unlawful discrimination. Section 46P(1) states:
“A written complaint may be lodged with the Commission, alleging unlawful discrimination.”
As earlier indicated, this must involve any acts, omissions or practices that are unlawful under the Age Discrimination Act, the Disability Discrimination Act, the Racial Discrimination Act or the Sex Discrimination Act.
Contrary to the assertion set out in paragraph 4 of the application, the Racial Discrimination Act does not extend to cover discrimination on the grounds of religion.
The Commission has the power to terminate a complaint pursuant to s.46PH inter alia if it is thought to be lacking in substance, which is what clearly occurred here. Such a termination can give rise to an application in this Court pursuant to s.46PO.
This Court’s jurisdiction extends relevantly to civil matters arising under Part IIB (section 49B). The difficulty for Mr Gahan, however, is that although discrimination defined generally extends to matters of religion, the definition of discrimination that includes religion does not apply to Part IIB. Part IIB is limited to complaints of unlawful discrimination which, as earlier indicated, do not extend to religious discrimination.
It is therefore clearly correct for the respondent to say that this application is one in respect of which the Court does not have jurisdiction. The application must therefore be dismissed. It would have, in any event, no reasonable prospects of success (s.17A of the Federal Magistrates Court Act 1999).
During the currency of the proceeding, I did raise with counsel for the respondent the question as to whether I should simply treat Mr Gahan’s application as an application under the Administrative Decisions (Judicial Review) Act and proceed from there. This course was resisted.
At the time, I acceded to this objection for the reasons then indicated.
It should be noted that on its face, Ms Ball’s correspondence would tend to suggest that Mr Gahan’s application would face considerable difficulties even if prosecuted under the Administrative Decisions (Judicial Review) Act. There is no obvious infraction of matters referred to in s.5 of that Act apparent from Ms Ball’s correspondence to Mr Gahan.
The respondent’s response has not sought costs, or indeed any orders other than (inferentially) the dismissal of the claim. Counsel did not foreshadow, let alone indicate, that any claim for costs would be made. In the circumstances, the respondent being represented by in-house counsel, and noting Mr Gahan’s lack of legal understanding in any event, I think there should be no order for costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Date: 18 December 2012