Gupta v State of South Australia
[2014] FCCA 414
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUPTA v STATE OF SOUTH AUSTRALIA | [2014] FCCA 414 |
| Catchwords: HUMAN RIGHTS – Allegation of age discrimination in relation to four year old child – child refused enrolment at school as she was less than five years of age – application to amend application to inter alia allege respondent in breach of a human right – application opposed – application allowed save as to the alleged breach of human right. |
| Legislation: Age Discrimination Act 2004 (Cth), ss.14, 15 and 26 |
| Applicant: | SANTOSH GUPTA, AS LITIGATION GUARDIAN FOR TANIKA GUPTA |
| Respondent: | STATE OF SOUTH AUSTRALIA |
| File Number: | ADG 96 of 2013 |
| Judgment of: | Judge Simpson |
| Hearing date: | 19 February 2014 |
| Date of Last Submission: | 19 February 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 7 March 2014 |
REPRESENTATION
| The Applicant: | Mr Santosh Gupta, as litigation guardian for Tanika |
| Counsel for the Respondent: | Ms T Scott |
| Solicitors for the Respondent: | Crown Solicitors |
ORDERS
The applicant is permitted to file a further Amended Application in terms of the draft document attached to his affidavit filed 22 January 2014 SAVE for paragraph 3 of the grounds contained in the document shall not be included.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 96 of 2013
| SANTOSH GUPTA AS LITIGATION GUARDIAN FOR TANIKA GUPTA |
Applicant
And
| STATE OF SOUTH AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
I have before me an Amended Application brought by Santosh Gupta (“Mr Gupta”) as litigation guardian for Tanika Gupta (“Tanika”) born on 30 July 2008, against the State of South Australia (“the Respondent”). Tanika is the applicant’s daughter.
Mr Gupta was concerned about the fact that Tanika was denied enrolment in reception at Woodville Gardens Primary School on the basis that she was underage. Mr Gupta sought to enrol Tanika in reception at Woodville Gardens Primary School, a State run school, for the second term of year 2013 at which time she would be 4 years, 9 months old. Enrolment was declined on the basis that a government policy required that a child be no less than 5 years of age when his or her schooling commences.
Mr Gupta indicated that he brought the proceedings under s.26 of the Age Discrimination Act 2004 (Cth) (“the A D Act”). Section 26 is in the following terms:
26 Education
“(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person’s age:
(a)by refusing or failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s age:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment.
Exemption for educational institutions established wholly or primarily for students above a particular age
(3)This section does not make it unlawful to discriminate against a person on the ground of the person’s age in respect of admission to an educational institution established wholly or primarily for students above a particular age, if the person is not above that age.
Definitions
(4)In this section:
educational authority means a body or person administering an educational institution.
educational institution means a school, college, university or other institution at which education or training is provided.”
In his Amended Application, Mr Gupta sought the following orders:
“1.Admission in Reception from Third term of 2013.
2.Admission in Year 1 from first term of 2014.”
The grounds pleaded by Mr Gupta were as follows:
“1.Tanika was denied admission in Pre-school in Woodville Garden (sic) School from third term of 2012 on the basis of her age which contravenes the Section 14, 15 and 26 because DECD (Department of Education and Child Development) allowed children of (sic) special needs to enrol early. Tanika is from English (sic) as a Second Language (ESL) background.
2.Tanika was denied admission in Reception from second term of 2013 on the ground of her age which contravenes the Section 14, 15 & 26. Since Tanika is from ESL, it was unreasonable to deny admission. Her social and academic development is also advanced than the same age of the children. She is also told that she needs to complete 5/6 terms of Reception and unreasonable (sic).”
On 19 June 2013, the respondent filed a Response in which they sought an order striking out ground 1 of the Amended Application on the basis that it was not pleaded in the initial Application to the Australian Human Rights Commission and, further, was contrary to s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”). The respondent pleaded grounds of opposition in the following terms:
“1.The respondent denies it discriminated against the applicant contrary to sections 14 and 15 of the Age Discrimination Act 2004.
2.Alternatively, the respondent relies on section 26(3) of the Age Discrimination Act 2004.”
On 21 June 2013, the Court referred the matter to mediation by a Registrar of the Court. The mediation was unsuccessful.
On 26 July 2013, the matter was adjourned to 10 February 2014 for directions.
On 22 January 2014, the applicant filed an Application in a Case (with supporting affidavit) in which he sought an order that he be permitted to file a further amended application. He provided the Court with a draft of the proposed further Amended Application. The final orders sought as follows:
“1.Admission in reception from third term of 2013
2.Admission in year one from first, second or third term of 2014.
3.Any other order, Honourable Court consider appropriate.”
The grounds of the proposed further Amended Application were the same as the grounds contained in the amended application in so far as paragraphs 1 and 2 are concerned. The draft Further Amended Application contained a new paragraph 3 which was in the following terms:
“Human Right Commission Act 1986, Schedule 3, Principle 1 and 7 also suggests that, “… every child, without any exception whatsoever, shall be entitled to these rights, without any distinction or discrimination on account of … other status”. It also says that, “The child is entitled to receive education which shall be free … The best interest of the child shall be guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents …” therefore educational authority cannot determine the interests of a child.”
The grounds of the Draft Further Amended Application also indicated that the applicant’s case relied on ss.14, 15 and 26 of the Age Discrimination Act 2004 and Schedule 3 of the Human Rights Commission Act.
The respondent indicated, at the hearing on 10 February 2014, that they would agree to the filing of the Further Amended Application save as to the inclusion of ground 3 of the Application.
The Court set the matter down for interim argument to take place on 19 February 2014 and orders were made for the filing of Outlines of Submissions.
On 19 February 2014, the Court heard submissions on behalf of each of the parties in relation to the Application in a Case of 22 January 2014.
It is clear from the applicant’s submissions that, if he is allowed to file the further amended application in the form of the draft document, that at trial he will be wishing to argue that the respondent, the State of South Australia, has breached Tanika’s human rights as defined in the “Declaration of the Rights of the Child”.
Mr Gupta’s argument is that the Australian Human Rights Commission (“the Commission”) has an obligation to investigate possible breaches of human rights. He submits that if the Commission investigates a complaint made by him, concerning possible breaches of human rights, that he can then commence proceedings in this Court upon the Commission terminating their enquiry into the complaint. He states in his written submissions as follows:
“Since the alleged breach of human rights under the Ground 3 of Part B of the amended application are not unlawful discrimination, is a reason of termination (sic) of the complaint under Section 46PH, the proceedings related to these breach (sic) can be heard and determined by this Honourable Court under Section 46PO of the Act.”
A little later in his submissions he submits as follows:
“Section 49B of the Act expressively (sic) assigns the power to this Honourable Court to deal with the application regarding the breach of Human Right under Part IIB and Part IIC.
Part IIB Section 46P binds the crown of the state which includes complaints regarding breach of human rights by the state.”
The respondent submits that this Court does not have jurisdiction to deal with any alleged violations of human rights. They submit that any possible violations of human rights have to be dealt with by the Commission and that the Act does not provide for possible breaches of human rights to be adjudicated in this Court. The respondent submits that this Court’s jurisdiction is limited to discrimination complaints and that Division 2 of Part IIB of the Act support this conclusion.
Section 11(1)(aa) of the Act provides for enquiry and conciliation of complaints of unlawful discrimination. If the Commission terminates a complaint on any of the grounds set out in s.46PH, the complainant has 28 days in which to commence proceedings in this Court or the Federal Court of Australia.
The statutory regime in relation to human rights is quite different to the statutory regime in relation to discrimination. Section 11(1)(f) empowers the Commission to enquire into any act or practice that may be inconsistent with or contrary to a human right. The Commission’s powers are limited to enquiry, conciliation and report to the Attorney General in relation to the enquiry. There is no provision by which a complainant can commence proceedings in this Court for an alleged violation of a human right.
The respondent further submits that the Commission has jurisdiction to enquire into alleged human rights violations only if the respondent is the Commonwealth of Australia or an agent of the Commonwealth. They submit that this is made clear by the definitions of the “act” and “practice” to be found in s.3 of the Act as having to be done by or on behalf of the Commonwealth, or an authority of the Commonwealth.
I agree with the submissions put on behalf of the respondent. The applicant’s submissions are without merit.
For the above reasons, it would not be appropriate to allow the applicant to plead breaches of the Declaration of the Rights of the Child.
I will therefore allow the applicant to file a Further Amended Application in terms of the document attached to his Affidavit filed 22 January 2014 save for paragraph 3 of the grounds contained in the draft document.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 7 March 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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