Hamlin v The University of Queensland
[2013] FCCA 406
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAMLIN v THE UNIVERSITY OF QUEENSLAND | [2013] FCCA 406 |
| Catchwords: HUMAN RIGHTS – Application to summarily dismiss – claims based upon inaction by respondent – alleged failure to respond to complaints – claims not made out – application summarily dismissed. |
| Legislation: Racial Discrimination Act 1975, ss.9(1), 18, 18C(1) |
| Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 Wilson v Community and Public Sector Union [2011] FCA 448 |
| Applicant: | LUKE HAMLIN |
| Respondent: | THE UNIVERSITY OF QUEENSLAND |
| File Number: | BRG 1 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 20 May 2013 |
| Date of Last Submission: | 20 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 31 May 2013 |
REPRESENTATION
| The was no appearance by the applicant |
| Counsel for the Respondent: | Mr O’Higgins |
| Solicitors for the Respondent: | Bartley Cohen |
ORDERS
The application filed on 2 January, 2013 be dismissed pursuant to r.13.10(1) of the Federal Circuit Court Rules 2001.
The respondent file and serve any application and submissions as to costs within fourteen (14) days of the date of these orders.
The applicant file and serve any submissions as to costs within fourteen (14) days thereafter.
Any application for costs be dealt with on the papers save where either party explicitly requests a further oral hearing in their written submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1 of 2013
| LUKE HAMLIN |
Applicant
And
| THE UNIVERSITY OF QUEENSLAND |
Respondent
REASONS FOR JUDGMENT
By his amended application filed on 13 February, 2013 Mr Hamlin seeks an order for compensation (fixed in the sum of $223, 321) and an apology from the University of Queensland for alleged breaches of the Racial Discrimination Act 1975. The University opposes Mr Hamlin’s application and by an application in a case filed 6 May, 2013 the University applies for the whole of the proceedings to be summarily dismissed. In the alternative, the University seeks other orders the object of which is to provide further and better particulars of the claims made against it by Mr Hamlin.
In the principal proceedings, Mr Hamlin makes allegations of discrimination by the University against him. By directions that were made in this Court on 18 February, 2013 Mr Hamlin was required to provide full particulars of his allegations against the respondent and to file all evidence to be relied upon by him in support of his application.
Since that time, Mr Hamlin has filed an amended application and two affidavits deposed by him. He has also filed a response to the University’s application for summary dismissal and a document entitled “RESPONSE TO REQUEST FOR FURTHER AND BETTER PARTICULARS OF THE RACIAL DISCRIMINATION (AMENDED).”
Mr Hamlin did not appear at the hearing of the summary dismissal application. For reasons for which I delivered at the commencement of the summary dismissal application, I refused his application for an adjournment, made by email correspondence to my Associate on the day of the hearing. I have, however, taken into account the outline of submissions sent by Mr Hamlin to my Associate via email on 20 May, 2013.
Mr Hamlin alleges that the University has breached the Racial Discrimination Act on seven separate occasions. He relies upon the affidavit evidence filed by him (one filed on 28 March, 2013 and another filed on 1 May, 2013), the initial complaint made by him to the Australian Human Rights Commission (attached to his amended application filed on 13 February, 2013), and the University’s response to the Australia Human Rights Commission complaint “to show that the alleged inaction involved the distinction, exclusion, restriction or preference within” the Racial Discrimination Act.
Mr Hamlin relies upon ss.9(1) and 18C(1) of the Racial Discrimination Act. Those sections are in the following terms:
Section 9(1)
Racial discrimination to be unlawful
(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.
Section 18C(1)
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
The facts referred to below are taken from Mr Hamlin’s affidavit filed on 28 March, 2013. His second affidavit does not add much at all to the facts upon which he relies. I have had regard to his further and better particulars (amended) and his written submissions. To the extent that any of those documents contain allegations of fact, I assume that the facts are true.
Mr Hamlin gained entry to the medical program with the University of Queensland in January, 2011. He gained access to that program through the “indigenous alternative entry program”. He was enrolled in the MBBS degree from January, 2011 until December, 2012.
The first complaint
On 9 August, 2011 Mr Hamlin attended a mid semester examination briefing at the University. The briefing was held in a lecture theatre and there were about 400 students in attendance. The briefing was conducted by Dr Phillip Towers who had informed the students there assembled about a change to the assessment processes at the upcoming mid-semester examinations. Mr Hamlin alleges that during the briefing Dr Towers said:
“The Australian Medical Council has recently reviewed The University of Queensland’s curriculum and have advised us that our curriculum is of high standard. The only recommendation given by the Council is that more indigenous content needs to be incorporated into the curriculum”.
Mr Hamlin asserts that the lecture theatre then erupted into laughter and Dr Towers did nothing to stop the lecture or advise (presumably the students there assembled) that the laughter was inappropriate.
In January 2012, Mr Hamlin met with Dr Towers and another person from the School of Medicine, Dr Jennifer Schaefer. At that meeting Mr Hamlin says that he told Dr Schafer about the incident involving Dr Towers. It is not clear from Mr Hamlin’s evidence what role Dr Schaefer plays in all of this but I infer from the context of his affidavit and the request for further and better particulars that he has given, that Dr Schaefer was in some position of authority within the University. In any event, Mr Hamlin says that after he advised Dr Schaefer of the incident, she said: “I cannot control a whole cohort from laughter” to which Mr Hamlin replied: “No but the lecture could have been stopped and they could have been told that it was inappropriate. You can also send out an email to the cohort about professional standards and behaviours. You have done that in the past.” Mr Hamlin alleges that Dr Schaefer then said: “No that will not be happening”.
As made plain by the further and better particulars (amended) provided by Mr Hamlin on 1 May, 2013, his case in respect of that incident is that there has been unlawful discrimination in breach of s.9(1) of the Racial Discrimination Act. The relevant act about which he complains is the failure of Dr Towers and the failure of Dr Schaefer to act to redress what Mr Hamlin considered to be discriminatory conduct. I note that a failure to act is taken to be an act for the purposes of the Racial Discrimination Act: see s.3(3) of the Act.
Mr Hamlin alleges that the failures of Dr Towers and/or Dr Schafer to do anything about the briefing incident involve a distinction, exclusion, restriction or preference against him based on his race, colour and descent. He alleges that the human right and fundamental freedom that has been affected by the discrimination is his right to education, culture and social freedom.
He also relies on s.18(1) and he asserts that the failure by Dr Towers or Dr Schaefer to act is “reasonably likely to offend and insult and humiliate the applicant and all Aboriginal and Torres Strait Islander people to Australia”. He asserts that the relevant act is the failure by Dr Towers to stop the lecture and advise that “racial vilification and discrimination is inappropriate” or as against Dr Schaefer that she failed to investigate the matter, did not attempt to counsel students on racial issues in the medical school and did not send an email to the students about racial conduct.
I accept the respondent’s submission that Mr Hamlin makes no attempt to identify how the alleged inaction by Dr Towers and Dr Schaefer involved a distinction, exclusion, restriction or preference or how that distinction, exclusion, restriction or preference if there be one, was based on race, colour, descent or national or ethnic origin.
Moreover, apart from alleging it to be so, there is no evidence to suggest that if there was a distinction, exclusion, restriction or preference based on race, colour descent or national or ethnic origin, that has in some way impacted on the recognition, enjoyment or exercise, on an equal footing, of Mr Hamlin’s right to education, cultural or social freedom. There is no evidence that Mr Hamlin has put before the Court which demonstrates any connection between Dr Towers’ and Dr Schaefer’s failure to act and Mr Hamlin’s race or ethnicity. Section 9 has such a requirement: Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8; Wilson v Community and Public Sector Union [2011] FCA 448 at [15].
Having regard to his claims and the evidence that he has adduced in support of them, in my view, Mr Hamlin does not have any prospect of successfully pursuing his claim in respect of the first incident upon which he relies.
The second complaint
The second incident relied upon by Mr Hamlin to establish his claim is described in the material as the “University Election Period”. Mr Hamlin alleges that in August, 2011 he attended the University to explain a number of concerns with respect to “racial conduct”. He was referred to Adelaide Cheng-Weaver who Mr Hamlin says is a “discrimination and harassment contact officer” at the University. Mr Hamlin met with Ms Cheng-Weaver and explained the nature of his “racial conduct”. After meeting with her he sent an email to the “complaint officer” who advised him that it would be dealt with in due course. The assertion by Mr Hamlin concerning the University election period is that Ms Cheng-Weaver “failed to act”. He says that she failed to refer, investigate or offer support with respect to the matter. He alleges that for her to fail to do so was an act of unlawful discrimination in breach of s.9(1) and s.18C(1) of the Racial Discrimination Act.
The further and better particulars relied upon by Mr Hamlin in support of this claim do not advance the matter because they are mere assertions rather than particulars of fact. The particulars refer to Mr Hamlin’s affidavit filed on 1 May, 2013 but in respect of this complaint, that affidavit adds nothing. What Mr Hamlin says in that affidavit about this incident is as follows:
“Area 2
22. The applicant relies on the affidavit evidence by Luke Hamlin (Paragraph 9-11)
23. The applicant relies on the complaint made by Luke Hamlin to the AHRC
24. Taking into consideration this evidence, there is reasonable prospects of success by proving the application on the balance of probabilities.
25. The applicant in the case has provided an affidavit by Rebecca Louise Scott affirmed 18 April 2013. To my understanding, there is nothing in this affidavit that suggests the application has no reasonable chance of success.
For the reasons expressed above, this claim must fail also. There is simply nothing to suggest that the failure to act about which Mr Hamlin now complains was in any way connected with his race or ethnicity. Although he asserts that it is so, there is no evidence which would support the assertion so made.
The third complaint
The third matter relied upon by Mr Hamlin is the receipt by him of an anonymous letter. The incident is referred to in the material as the “Racial Hate Letter”.
According to Mr Hamlin’s evidence in July, 2011 he moved into King’s College, a residential facility located near The University of Queensland. Mr Hamlin says that the only entity to which he has given his address at King’s College is The University of Queensland. For all other correspondence, his address is another street address in Southport.
Mr Hamlin says that between July, 2011 and December, 2012 he received around 10 postal letters at King’s College. Nine of those letters were from The University of Queensland. In September, 2011 he received a letter that had no return address. When he opened the letter he read the words “die you dirty abo”.
Mr Hamlin was concerned about the letter and asked a receptionist (at the College) if there was a register with incoming letters; she told him that such a register was not kept. Mr Hamlin told her that he had received the offending letter and she referred him to the “headmaster”. Mr Hamlin declined to speak to the headmaster but rather said “I will speak to the medical school about investigating it with police”.
In January 2012, Mr Hamlin met with Dr Schaefer (it is not clear whether it was the same meeting referred to earlier) where he says “I received a letter that says die you dirty abo. I believe it was from a medical student and I believe you should investigate it with the police.” In response Mr Hamlin says that Dr Schaefer said “I don’t think we should investigate this matter because you can’t prove it was a medical student. For all we know you could have sent it to yourself.”
In his complaint to the Human Rights Commission, Mr Hamlin says that when he advised the receptionist about the letter that he received “she told me that I should see the college headmaster or speak to someone at the University about it. I believed that when I advised the school of medicine about this issue, they had a responsibility to assist me given that King’s College is a residence affiliated with the University of Queensland. Assistance was not forthcoming. ”
As the University points out, Mr Hamlin does not assert that the University or anyone on its behalf sent the anonymous letter. His complaint is that the University failed to take action or assist him following its receipt. Mr Hamlin does not identify or attempt to identify any discriminatory motivation for the alleged inaction by the respondent. There is no connection between the act about which he complains and his race or ethnicity revealed by the evidence. This claim is, in my view bound to fail.
The fourth complaint
Mr Hamlin’s next complaint is referred to in the material as the “Procedural Skills Workshop.” In his complaint to the Australian Human Rights Commission he records that in second semester 2011, he attended a clinical skills workshop. At that workshop a tutor made the following comment:
“Indigenous people have a gene that makes them aggressive when they are drunk. I don’t know what it is, but they shouldn’t be drinking alcohol. They always become aggressive when they are drunk”.
In his complaint to the Australian Human Rights Commission, Mr Hamlin said “I found this comment offensive and once again I questioned the school of medicine’s commitment to assisting indigenous students”.
The tutor identified as having made the offensive remarks was Mr Brett Noonan, a clinical nurse educator who was conducting the procedural skills workshop attended by Mr Hamlin and nine other students. Mr Hamlin complained about Mr Noonan’s comments at the meeting with Dr Schaefer in January, 2012. He advised her of what had happened some six months earlier. Her response, according to Mr Hamlin, was “Brett no longer works for the University so that’s not a problem”.
The University concedes that a critical remark such as that made by Mr Noonan is enough to be an “act” for the purposes of s.9(1) of the Racial Discrimination Act. But Mr Hamlin must demonstrate more than that – the act must be shown to have impaired his rights by, for example, impairing their enjoyment of the right to work or, in this case pursue his study and that in turn depends upon the nature and circumstances of the remarks (see Qantas Airways v Gama (2008) 167 FCR 537 at [77]). As the University points out there is no evidence about the purpose of the remark or of the context in which it was made, the response of the other students, if any, or any further discussion that might have occurred following the relevant remark.
Mr Hamlin also relies on this incident as contravening s.18C(1) of the Racial Discrimination Act. The University points out that the objective nature of the enquiry under s.18C(1) and the express words of that section require all of the circumstances to be examined. There is no evidence about the circumstances in which the remarks were made other than Mr Hamlin’s assertions. As the University puts it, Mr Hamlin’s personal reaction is irrelevant: Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [12].
Moreover, to the extent that Mr Hamlin’s claim is based upon a failure to act by Dr Schaefer, for the same reasons that Mr Hamlin’s claims set out above are bound to fail, this claim too is bound to fail. There is no attempt in the evidence to draw a connection or a “sufficient connection” between the inaction by the University following his complaint in January, 2012 and his race or ethnicity. There is no evidence which would support a finding of a discriminatory purpose contrary to either s.9(1) or s.18C(1) of the Act.
The fifth complaint
The next ground of complaint is described in the material as the “Indigenous Tutorial Assistance Scheme”. In his affidavit of evidence in chief filed on 28 March, 2013 Mr Hamlin describes the background to this claim as follows:
The Indigenous Tutorial Assistance Scheme (ITAS)
24. In January 2012 I spoke to Kelly Lindsay. Ms. Lindsay was employed as the ITSA coordinator at the time. At that time, I asked Ms. Lindsay to find me an ITAS tutor for an examination that I was studying for.
25. As a result of my request, Ms. Lindsay allocated me Ms. Crystal Williams.
26. Around the month of May, I had the following conversation with Ms. Lindsay-
She said “You can no longer have Crystal as a tutor”
I said “How come?”
She said “I don’t know if I should be telling you this, but Crystal does not have the GPA requirements.
27. That afternoon I checked the DEEWR policy guidelines for ITAS tutor allocations.
28. I noticed that there were in fact no GPA requirements for the appointment of ITAS tutors.
29. The next day I had the following conversations with Ms Lindsay-
I said“Hi Kelly. I have had a look into the policy surrounding ITAS tutor appointment and there is no GPA requirement. Crystal has an education background and is about to graduate from medical school. She is more than qualified as a tutor. Furthermore, the guidelines state that Indigenous candidates are the preferred candidates. She is the only Indigenous Medical ITAS tutor you have.
She said“Unfortunately the decision has already been made. She will not be continuing as an ITAS tutor because she is Indigenous. Indigenous students really need to focus on their studies. They should not be tutors.”
The first thing to notice is that the applicant makes no allegation of discriminatory conduct by the respondent against himself directly. The tutor in question was replaced with a non-indigenous tutor and Mr Hamlin says that his exam preparation was affected. Having regard to the terms of s.9(1) and 18C(1), the University’s submission that even if Mr Hamlin’s allegation concerning the tutor is correct, it does not entitle him to any relief as he was not the person the subject of the discrimination.
The sixth complaint
Mr Hamlin’s next complaint is described in the material as “Histology Slides.” He alleges that during semester one of 2012 he noticed histology slides that read “Aboriginal Skin”. He says “these slides contained increased melanocytes. Melanocytes are the cells responsible for dark pigmentation of skin.” Mr Hamlin says that upon noticing the slides he formed the view that they were falsely portraying all Aboriginal people as black. He formed the view that naming the slides “dark skin” or “skin with increased melanocytes” would have been a better descriptor for the slides.
He says that in March, 2012 in the Science Reception Area in building 67 on the ground floor he approached a middle aged lady with brown hair at the reception and had a conversation with her. He said that he told her that he was a current medical student at the University and that there were slides in the “PBL rooms” that are labelled “Aboriginal Skin”. He told the woman that he believed the slides were offensive because they were not indicative of “Aboriginal skin”. The woman to whom he spoke responded “I will make a note of your concern and forward it onto the right person. Hopefully they will rename them for you”.
Mr Hamlin says in June, 2012 he attended at the site’s reception area, and he spoke to the same person again. He said to the person that he thought something would have been done about the slides and her response was that “we are looking into the matter”.
Mr Hamlin adduces no evidence to support his assertion that there was a failure to act by the University. Moreover, he does not call any evidence that supports his assertion that if there was a failure to act it was “based on” or “because of” a discriminatory purpose within s.9(1) or s.18C(1) of the Racial Discrimination Act. The University points out that Mr Hamlin does not allege that the labelling of the slides was done because of the race, colour or ethnic origin of a person or group of people. Rather the slides were labelled to provide a description of the skin.
There is, in my view, no attempt in Mr Hamlin’s evidence to draw a sufficient connection between what he alleges to be the discriminatory conduct by the University and his race or ethnicity.
The seventh complaint
The next complaint is referred to in the material as “Misappropriation of Indigenous Funds”. The gravamen of this complaint by Mr Hamlin is that he was told by a person from the School of Medicine, Dr Maree Tombs that funding was available to support 10 indigenous students taking a field trip to Canada. Mr Hamlin alleges that Dr Toombs said that all indigenous students would be “fully funded” for the trip.
According to Mr Hamlin’s evidence, as matters turned out, the indigenous students who were able to undertake the trip were not fully funded and only received $2000 towards their expenses and costs. Moreover, not all indigenous students were able to go on the trip and some were not eligible to attend the trip.
Mr Hamlin’s evidence is set out in paragraphs 35 through to 47 of his affidavit of evidence in chief filed on 28 March, 2013. There is no elaboration of it in his affidavit of 1 May, 2013. The amended particulars delivered by Mr Hamlin on 1 May, 2013 add nothing to his evidence. It may be his case that he raised these matters with the University and the appropriate people in the University did nothing about his concerns.
I accept the University’s submission that Mr Hamlin does not provide any evidence to support any allegation that the lack of action on the part of the University was because of a discriminatory purpose within s.9(1) or s.18C(1). There is no attempt by him to identify any discriminatory motivation for the alleged inaction by the University and hence, no attempt to establish a sufficient connection between the discrimination and the applicant’s ethnicity or race. Indeed, it is difficult to comprehend just what it is that Mr Hamlin claims breaches the Racial Discrimination Act in respect of this compliant.
As the University suggests, an allegation of misappropriation of funds is a serious allegation to make. There is simply no evidence to support such a charge. Moreover, Mr Hamlin’s own evidence demonstrates that his allegation that the funding that was to be provided was to cover all costs associated with the trip is not made out. The written evidence upon which he relies demonstrates that the funding was only available to cover flight costs and that there would probably be some costs to students.
Conclusion
In my view, Mr Hamlin has no reasonable prospect of successfully prosecuting the claims that he has set out in his materials. The claims should be summarily dismissed pursuant to r.13.10(1)(a) of the Federal Circuit Court Rules2001.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 31 May 2013
5
2