Henley v Australian Human Rights Commission
[2017] FCCA 677
•10 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HENLEY v AUSTRALIAN HUMAN RIGHTS COMMISSION & ANOR | [2017] FCCA 677 |
| Catchwords: ADMINISTRATIVE LAW – Discrimination – audio description on Australian television – complaint to Australian Human Rights Commission under s.11(1)(f) of Australian Human Rights Commission Act 1986 (Cth) – complaint accepted and inquiry commenced – decision of President of Australian Human Rights Commission to decide not to further inquire under s.20(2) – claim that decision of President legally erroneous – meaning of “lacking in substance” – President’s decision supportable under either or both of s.20(2)(a) and s.20(2)(c)(ii) – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 16 |
| Cases cited: Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 Cheney v Spooner (1929) 41 CLR 532 Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 |
| Applicant: | LAUREN HENLEY |
| First Respondent: | AUSTRALIAN HUMAN RIGHTS COMMISSION |
| Second Respondent: | DEPARTMENT OF COMMUNICATIONS AND THE ARTS |
| File Number: | SYG 855 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 29 November 2016 |
| Date of Last Submission: | 9 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Sathanapally of Counsel |
| Solicitors for the Applicant: | Public Interest Advocacy Centre |
| Solicitor for the First Respondent: | Ms M Lindley of the Australian Human Rights Commission |
| Counsel for the Second Respondent: | Mr C Lenehan of Counsel |
| Solicitors for the Second Respondent: | Henry Davis York |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Originating Application for Judicial Review filed in this Court on 11 April 2016, the Amended Originating Application for Judicial Review filed on 6 June 2016 and the Amended Points of Claim filed on 24 June 2016 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 855 of 2016
| LAUREN HENLEY |
Applicant
And
| AUSTRALIAN HUMAN RIGHTS COMMISSION |
First Respondent
| DEPARTMENT OF COMMUNICATIONS AND THE ARTS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding has held a wide and varied range of roles representing the interests of blind and vision-impaired people. She has been completely blind since having tragically suffered an injury in a motor vehicle accident in 2006.
The Applicant holds the view that the Commonwealth of Australia (Commonwealth) has, in breach of her human rights pursuant to Articles 4, 9 and 30 of the Convention on the Rights of Persons with Disabilities (CRPD), failed to take all appropriate measures to ensure that blind and vision impaired people enjoy access to television in accessible formats. In particular the Applicant is concerned that Audio Description (AD) is not available on Australian television.
AD is the auditory narration of visual representations for television programmes, films and live performances. During gaps in dialogue, AD describes visual elements such as scenes, settings, actions and costumes. AD may be accessed by a separate language track on digital television or through separately provided AD equipment for a television, at a cinema or live performance.
Applicant’s Complaint to the Australian Human Rights Commission
By letter dated 12 May 2015 (complaint letter or complaint) the Applicant, through Ms Mansour of the Public Interest Advocacy Centre (who acted for her in her complaint to the First Respondent, the Australian Human Rights Commission (Commission) and is her solicitor in this proceeding) requested the Commission pursuant to s.11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to inquire into whether the Commonwealth had breached a number of its obligations under the CRPD and was engaging in an act or practice inconsistent with or contrary to any human right in the CRPD by reason of:
a)its alleged failure to legislate minimum targets for the provision of AD content on television (first component of complaint); and/or
b)its alleged failure to take all appropriate measures to ensure that persons with disabilities enjoy access to television programmes in accessible formats (second component of complaint).
It ought to be noted at this point that Australia has ratified the CRPD and that the Attorney-General of the Commonwealth has made a declaration under the AHRC Act, the effect of which is to include the rights contained in the CRPD within the definition of “human rights” under the AHRC Act.
In short, after correspondence and submissions to be referred to below over a period of some 10 months, the President of the Commission (President) by letter dated 14 March 2016 decided not to continue to inquire into her complaint and accordingly closed it (closure letter).
Application in this Court
By an Amended Originating Application for Judicial Review filed on 6 June 2016 the Applicant seeks an order setting aside ab initio the closure letter under s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and an order pursuant to s.16(1)(b) of the ADJR Act that her complaint be referred back to the Commission for further consideration. The Applicant claims that the impugned decision involved an error of law under s.5(1)(f) of the ADJR Act.
It should be noted that this proceeding relates only to the second component of the complaint and not to the first component to the effect that the Commonwealth had failed to legislate for minimum targets for the provision of AD content.
The Commission filed a submitting notice on 18 April 2016 and the active parties in the proceeding have been the Applicant and the Second Respondent, the Department of Communications and the Arts (the Department).
Relevant Statutory Scheme
The Commission is established by s.7(1) of the AHRC Act. By s.8(1), it is constituted by a President and certain named Commissioners. By force of s.8(6) the performance of the functions of the Commission under s.11(1)(f) (the inquiry function relevant here) are to be performed by the President and a reference in the AHRC Act to the Commission in relation to that performance of functions under s.11(1)(f) is to be read as a reference to the President.
Section 14(1) provides that in the performance of its functions, the Commission may make an examination or hold an inquiry in such a manner as it thinks fit and, in informing itself in the course of an examination or inquiry, is not bound by the rules of evidence.
Section 20 of the AHRC Act is central to the resolution of this proceeding. Subsections (1)-(4) of that section provide as follows:
20. Performance of functions relating to human rights
(1)Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:
(a) the Commission is requested to do so by the Minister; or
(b) a complaint is made in writing to the Commission, by or on behalf of one or more persons aggrieved by an act or practice, alleging that the act or practice is inconsistent with or contrary to any human right; or
(c) it appears to the Commission to be desirable to do so.
(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; or
(b) the Commission is satisfied that the person aggrieved by the act or practice does not want the Commission to inquire, or to continue to inquire, into the act or practice; or
(c) in a case where a complaint has been made to the Commission in relation to the act or practice:
(i) the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice; or
(ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; or
(iii) where some other remedy has been sought in relation to the subject matter of the complaint--the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or
(iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice; or
(v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority--the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or
(vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority; or
(vii) the Commission is satisfied that the complaint has been settled or resolved.
(3) The Commission shall, before the expiration of the period of 2 months commencing when a complaint is made to the Commission in respect of an act or practice, decide whether or not to inquire into the act or practice.
(4) Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall, unless the complaint has been transferred under subsection (4A), forthwith give notice in writing to the complainant of that decision and of the reasons for that decision.
(emphasis added)
Finally, s.29(3) requires a copy of a report to be given to a complainant in circumstances when after an inquiry into an act or practice, the Commission relevantly finds that the act or practice is not inconsistent with or contrary to any human right. It is expressed as follows:
29. Reports to contain recommendations
(1) …
(2) …
(3) Where:
(a) a complaint is made to the Commission in relation to an act or practice; and
(b) after an inquiry into the act or practice, the Commission finds that:
(i) the existence of the act or practice has not been established; or
(ii) the act or practice is not inconsistent with or contrary to any human right;
the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and:
(c) in a case to which subparagraph (b)(i) applies – to the person alleged to have done the act or engaged in the practice; or
(d) in a case to which subparagraph (b)(ii) applies – to the person who did the act or engaged in the practice.
Further History of Applicant’s Complaint
By letter dated 29 May 2015 the Commission confirmed its acceptance of the Applicant’s complaint letter and acknowledged that she sought an inquiry under s.11(1)(f) of the AHRC Act.
By letter dated 24 June 2015 the Commission advised the Applicant that:
a)it had reviewed the information provided by the Applicant to the Commission;
b)on the basis of that information the Commission might consider the complaint letter to be misconceived or lacking in substance with respect to both components of the complaint and explained the reasons for that opinion;
c)with respect to the first component, advised that the Commonwealth’s failure to legislate minimum targets for AD on television was beyond the scope of s.11(1)(f) of the AHRC Act;
d)pointed out, with reference to the second component of the complaint, that articles 4 and 9 of the CRPD spoke of progressive achievement and progressive realisation of human rights after immediate satisfaction of minimum core obligations;
e)referred to relevant action taken by the Commonwealth to recognise rights in the CRPD; and
f)invited the Applicant, if she wished to continue with her complaint, to provide further information in support of it by 21 July 2015.
By letter dated 20 July 2015 the Applicant responded to that letter by:
a)taking issue with the Commission’s view that the Commonwealth’s failure to legislate minimum targets for AD on television was beyond the scope of s.11(1)(f) of the AHRC Act. These reasons do not further mention the first component of the complaint because, as noted in [8] above, there is no challenge in this proceeding by the Applicant in connection with the first component, namely the Commonwealth’s failure to legislate minimum targets for AD on television in Australia;
b)put forward further submissions in support of her request that the Commission continue to investigate the second component of her complaint, namely that the Commonwealth had failed to take all appropriate measures to ensure availability of AD to persons with disabilities.
On 31 July 2015 the Commission orally advised the Applicant that it had requested further information from the Commonwealth in relation to the Applicant’s complaint.
By letter of 31 July 2015 the Commission referred the complaint to the Department for its response.
Under cover of a letter dated 21 August 2015 the Department forwarded to the Commission a Response with attachments (Response) which:-
a)outlined the steps taken by the Commonwealth towards trialling AD content on television;
b)outlined future plans and actions with respect to introducing AD content on television and the body of submissions it had received from consultations with representatives of television, film and internet industries and from people with a vision or hearing impairment and their representative bodies. It asserted that the Department had carefully considered this material;
c)stated that the Department did not consider that the Commonwealth had breached the Applicant’s human rights;
d)stated that the fact that the Commonwealth had not legislated minimum targets for AD on television did not in the Department’s view amount to any breach by Australia of articles 4, 9 or 30 of the CRPD; and
e)submitted that existing measures to undertake research into AD through trials, in addition to other measures such as legislated requirements to provide captioning, were consistent with the CRPD.
On 15 September 2015 the Commission forwarded the Response to the Applicant.
By email of 15 January 2016 the Commission advised that the Applicant could provide further submissions in reply to the Response.
By letter of 9 February 2016 the Applicant made “further brief submissions” in relation to the Department’s Response, otherwise relied on the Applicant’s previous submissions of 20 July 2015 and advised that she looked “forward to the Commission’s further investigation of this complaint”. She did not indicate the nature, scope or content of the “further investigation” which she expected the Commission to conduct.
However, by the closure letter of 14 March 2016 the President under the general heading of “Closure of Complaint”:-
a)summarised the submissions of the Applicant, the Response and the Applicant’s subsequent submissions of 9 February 2016;
b)outlined the terms of the CRPD;
c)outlined other legislative remedies potentially available to the Applicant; and
d)stated her conclusion as follows:
d) Conclusion
While I appreciate that Ms Henley remains dissatisfied with the action taken by the Commonwealth to date, the information before me indicates that the Commonwealth is taking appropriate measures with a view to achieving progressively the rights of people who are blind or vision impaired to access television programs in accessible formats.
On the basis of the information before me, I am satisfied that Ms Henley has not provided sufficient information to support her claim that the Commonwealth has done acts or engaged in practices that are inconsistent with, or contrary to, the rights contained in the CRPD. I have therefore decided not to continue to inquire into this aspect of her complaint under section 20(2)(c)(ii) of the AHRCA as I am of the opinion it is lacking in substance.
In these circumstances the Applicant contends that the President erred and that it was not legally open to her to dismiss the complaint under s.20(2)(c)(ii) on the basis that it was “lacking in substance”.
For the reasons which follow, I consider that the decision of the President not to continue to inquire into the Applicant’s complaint was lawful and legally open to her and the Amended Originating Application for Judicial Relief must be dismissed.
Identification of the Grounds Relied Upon by the President to Dismiss Complaint
Introductory Comments
I first observe that when the President refers to “information” as appearing in the two paragraphs of her Conclusion extracted at [23] above, I consider that she is using the word as the equivalent of “evidence”.
This is because in a legal or administrative law context, “information” is a synonym for evidence. The Oxford English Dictionary (2nd ed, online) defines the noun “evidence” in its legal use in paragraph 6(a) as:
Information, whether in the form of personal testimony, the language of documents, or the production of material objects, that is given in a legal investigation, to establish the fact or point in question.
Further, the following passage from the judgment of Isaacs and Gavan Duffy JJ in Cheney v Spooner (1929) 41 CLR 532 at 537 confirms that “evidence” and “information” are synonymous in this context:
As to the second point, it seems to rest on the view that the term “evidence” is appropriate only where some issue of fact is raised for judicial or quasi-judicial determination. That is too narrow a limitation of the term. “Evidence,” says Best (12th ed., p. 6) practically repeating Bentham, is “any matter of fact, the effect, tendency, or design of which is, to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact.” In this case, the law places on the liquidator, in a voluntary winding-up, the responsibility of working out the affairs of the company. It affords him the means of obtaining information, that is evidentiary facts, enabling him to come to a conclusion as to ultimate facts. The information obtained as prescribed through the instrumentality of the Court and on oath is properly described as “evidence.” It is “evidence” for the purpose intended by the law.
(emphasis supplied.)
Second, the task of statutory interpretation must begin with a consideration of the text itself, in its context, which includes the general statutory purpose and policy under consideration. In this instance s.20(2) grants to the President a source of power both to decide not to inquire into an act or practice after a complaint has been made under s.11(1)(f) or, after having commenced to inquire into an act or practice under that provision, to subsequently decide not to continue the inquiry. In this case it is common ground that the Commission accepted the complaint and commenced an inquiry.
Any rational system of law ought to provide for the ending of a claim which has no foundation or which in general terms has such insufficient prospects for success that the time and costs associated with the preparation, hearing and determination of the claim are not justifiable. For many years, both in England and Australia, courts have granted summary judgment where a high threshold is reached, as discussed in authorities such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
In the Federal Court of Australia that bar has been somewhat lowered by the introduction in 2005 of s.31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
Section 20(2) as extracted at [12] above has the statutory purpose in an administrative law context somewhat analogous to the summary judgment procedure made available in proceedings commenced in courts of law. It empowers the President, pursuant to defined conditions, to decide not to inquire at all into an act or practice or at any time after the commencement of an inquiry, to decide not to continue to inquire into the relevant act or practice.
Two Grounds
Contrary to the submissions of Ms Sathanapally, who appeared as Counsel for the Applicant, I consider that the President relied upon two grounds in deciding not to continue to inquire into the Applicant’s complaint. These were first, the ground provided by s.20(2)(a) and second, the ground provided by s.20(2)(c)(ii), notwithstanding that the President did not expressly identify and refer to the former ground comprised in s.20(2)(a) by its enumerated statutory source.
The President’s reliance on s.20(2)(a) can be illustrated from the below table, which compares the statutory text with the President’s closure letter:
Text of s.20(2)(a)
President
…the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;
…I am satisfied that Ms Henley has not provided sufficient information to support her claim that the Commonwealth has done acts or engaged in practices that are inconsistent with, or contrary to, the rights comprised in the CRPD.
Without referring specifically to s.20(2)(a), the President has set out in full the substance of that provision. In my view the President sufficiently invoked the ground provided by s.20(2)(a) by setting out its textual substance. There is no statutory or general law requirement that she specifically identify and enumerate s.20(2)(a) in order for reliance on that ground to be valid and effective.
This is illustrated by the decision of the Full Court of the Federal Court of Australia in Re Mercantile Mutual Life Insurance Co Limited and Roy Moore v Australian Securities Commission & Ors [1993] FCA 61. That case confirmed the principle that even a mistaken assertion of the source of a relevant power or an incorrect assumption about that source does not necessarily invalidate an administrative decision. The Australian Securities Commission had mistaken the source of its power in authorising persons to make an application for an order pursuant to s.597 of the Corporations Law: Black CJ at [7] stated the position of the Australian Securities Commission as follows:
It was under no statutory obligation to specify the source of the power under which it was acting and no consequence attached to the specification of a source of power that did not in fact exist.
Judges regularly make substantive orders without referring to the relevant source of power. A recent illustration is the case of Deputy Commissioner of Taxation v Leaver [2015] FCA 1454, where Pagone J heard and determined a claim by the Deputy Commissioner for summary judgment in reliance upon certain taxation assessments and certificates. His Honour found in favour of the Deputy Commissioner and in his dispositive order gave judgment in the specific sums of $15,342,976.79 and $15,213,916.14 without specifying or identifying that the judgments were of a summary nature or pursuant to either s.31A of the FCA Act or Part 26 of the Federal Court Rules 2011 (Cth).
Further, the Full Court of the Federal Court of Australia on hearing the appeal in Gould v Deputy Commissioner of Taxation [2017] FCAFC 1 from the decision of Pagone J dismissed it, but again without any reference to the statutory source of power comprised in s.28 of the FCA Act.
In my view the President first grounded her decision not to further inquire into the complaint under s.20(2)(a) of the AHRC Act. She also then relied upon s.20(2)(c)(ii) of the AHRC Act. Her reliance on s.20(2)(c)(ii) was independent from her reliance on s.20(2)(a) but also, in a sense, cumulative and pendent upon it because she was in the first instance satisfied that the Commonwealth had not done acts or engaged in practices that were inconsistent with or contrary to the rights contained in the CRPD and logically therefore also satisfied that the complaint at that point was lacking in substance.
In the factual circumstances of this case the President is entitled to seek to support her decision not to continue to inquire into the Applicant’s complaint on the two grounds expressed respectively in s.20(2)(a) and s.20(2)(c)(ii), either cumulatively or independently.
Further, even if, as submitted for the Applicant, the President were not entitled in the circumstances to rely on s.20(2)(c)(ii) and, contrary to my opinion expressed above, she had not sufficiently identified or specified reliance on s.20(2)(a) in the closure letter as a ground for not continuing the inquiry, the President would still be entitled to support her decision not to continue with the inquiry upon the basis of s.20(2)(a) and would have made no error of law in doing so. This is because of the principle recently confirmed by French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at 16-17 [34]:
… A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):
“If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.”
(citation omitted.)
In the circumstances of this case there were no conditions antecedent to the valid exercise of the ground comprised in s.20(2)(a) different from those applicable to the ground comprised in s.20(2)(c)(ii). In other words, if the President were in error and not entitled to rely on s.20(2)(c)(ii), she could still rely on s.20(2)(a) and the position would be as described by McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 (Johns) at 469:
The A.S.C. was authorized to give the transcripts to the Royal commission by the power conferred by s.127(4)(b). Its mistaken intention to act under s. 25(3) does not invalidate the release of the transcripts. To adopt words of Starke J., written in an analogous context: “The question is not one of intention but of power, from whatever source derived.”
(citation omitted.)
In Johns at 426 Brennan J stated as follows:
When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed.
(citation omitted.)
Meaning of “Lacking in Substance” under s.20(2)(c)(ii) of the AHRC Act
There was considerable debate at the hearing concerning the meaning of the expression “lacking in substance” as it appears in s.20(2)(c)(ii) of the AHRC Act. The words are plain English and it usually more profitable to pay attention to the actual statutory text in preference to judicial or other glosses. As Windeyer J pointed out in Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 519-520:-
There are often risks in paraphrasing the words in which Parliament has expressed its meaning. And those risks are not removed by selecting as the paraphrase words which courts have used in other cases to explain the application of other statutory language in a different context.
Likewise, the High Court in considering the expression “no reasonable prospect” in s.31A of the FCA Act in Spencer v The Commonwealth (2010) 241 CLR 118 (Spencer) stated at 141 [58] per Hayne, Crennan, Kiefel and Bell JJ:-
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided.
Nevertheless, the parties referred to numerous cases said to be relevant to understanding the expression, and in particular to the statement of Sir Roland Wilson as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 (Assal) where he stated at 78,899 as follows:
However, in order to survive this preliminary hearing, it will be sufficient for the complainant to persuade me that his complaint is not misconceived or not lacking in substance. It is probably unwise to attempt to define the phrase “lacking in substance”. Like the concept of “reasonable doubt” in criminal proceedings the words should be allowed to speak for themselves… A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.
However, in this passage Sir Roland Wilson was not attempting to comprehensively express the meaning of “lacking in substance” but rather was giving an example of a claim which would clearly be found lacking in substance. If it were necessary to give a gloss upon and meaning to the expression “lacking in substance” I would adopt “not reasonably arguable” from the judgment of Ipp JA, with whom Beazley JA and Bryson JA agreed, in Owners Corporation of Strata Plan 4521 v Zouk (2007) 69 NSWLR 61. His Honour was considering s.192 of the Strata Schemes Management Act 1996 which contained the same words of “frivolous, vexatious, misconceived or lacking in substance” as found in s.20(2)(c)(ii) and he stated at 70 [45]:
The powers of the Tribunal to dismiss an application by way of an informal investigation are far-reaching. It is in this context that the phrase “lacking in substance” must be understood. It would be inappropriate, given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than “not reasonably arguable”. That is, a meaning not dissimilar to “frivolous, vexatious, misconceived”, the words which precede the phrase.
On any basis, the nature of the power given to the President under s.20(2) is such that it “is not to be exercised lightly”: Spencer at 141 [60].
Whilst the grounds granted to the President by s.20(2)(c)(ii) for not continuing to inquire into an act or practice are somewhat and superficially similar, as mentioned at [32] above, to the grounds and bases found in provisions permitting the entry of summary judgment in courts of law, their application in the factual circumstances of this case are quite different to the circumstances and nature of summary judgment.
This is so for at least two reasons, namely:-
a)a successful summary dismissal application prevents a plaintiff from submitting his or her case for determination by the Court in the conventional manner “according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case”: O’Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 and cited by Dixon J in Dey at 91. This is because the Court has come to a certain and concluded view that the relevant proceeding would necessarily fail. In other words there is usually no factual inquiry or investigation and the term “summary judgment” is used to distinguish it from judgment given after a full hearing: Prior v Wood [2017] FCA 193 at [16] per Dowsett J;
b)an application for summary dismissal, like an application for summary judgment, ought to be brought early in any proceeding. Delay by a party seeking summary dismissal will in an appropriate case justify a discretionary refusal of such relief: Bell v Clare (1989) 23 FCR 274 at 280 per von Doussa J; Tomlinson v Cut Price Deli Pty Ltd (1992) 112 ALR 122 at 125 per Drummond J and Australian Competition & Consumer Commission v Billbusters Pty Ltd [2003] FCA 423 at [89] per Kenny J.
However, there was no early dismissal of the complaint in the circumstances here. The Commission accepted the complaint and did not dismiss it at its inception. Whilst it did give its preliminary adverse view in its letter of 24 June 2015, it nevertheless invited the Applicant to submit additional information in support of her complaint if she wished to continue with it. The Applicant did this by her letter of 20 July 2015 and then further by the letter of 9 February 2016 in answer to the Department’s Response. In other words, she appears to have been allowed to fully present and develop her complaint to the Commission.
By that letter of 9 February 2016 the Applicant made clear to the Commission that she had made at that point all the submissions she wanted to make. She did not indicate any line for the “further investigation” to which she said she looked forward.
At that point the inquiry which the Commission had commenced under s.11(1)(f) pursuant to the Applicant’s complaint was still on foot. However, the inquiry was not at its inception but rather had progressed to the point where the Applicant appeared to have no further submissions to make against the Commonwealth’s position as set out in the Department’s Response.
In Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 294 Sackville J said of the meaning of “inquiry” as follows:-
The dictionary definition of “inquiry” is:
“1. an investigation, as to a matter.
2.the act of inquiring, or seeking information by questioning, interrogation” (Macquarie Dictionary).
“Investigation” means:
“1. the act or process of investigating.
2.a searching inquiry in order to ascertain facts; a detailed and careful examination” (Macquarie Dictionary).
In my view, after consideration of the Applicant’s final submission of 9 February 2016 it was open to the President to consider that the Commission had conducted an inquiry into and an examination of all reasonably available facts: People v One 1941 Chevrolet Coupe (1952) 113 Cal App 2d 578 at [6] and cited with evident approval by Finkelstein J in Freeman v Health Insurance Commission (2000) 97 FCR 249 at 255-256 [20].
In those circumstances I consider that as a matter of law it was reasonably open to the President to make a decision under s.20(2) of the AHRC Act whether to continue to inquire into the Applicant’s complaint. I have found that the President first decided under s.20(2)(a) that she was not satisfied, based on all the information/evidence before her, that the Commonwealth had done acts or engaged in practices that were inconsistent with or contrary to the human rights asserted by the Applicant appearing in the CRPD.
I do not consider that in so deciding, the President committed any error of law or that the decision suffered from any legal unreasonableness or lacked an evident and unintelligible justification, nor was it irrational, illogical or capricious: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 647-648 [41].
Further, in my view it was open to the President and legally reasonable and not an error of law to come to the opinion under s.20(2)(c)(ii) that having regard to the inquiry conducted to date by the Commission, the complaint was lacking in substance. Obviously it was the case that at the commencement of the Commission’s inquiry the complaint could not be categorised as “lacking in substance”. However, an inquiry had been conducted and the information and evidence had been evaluated by the Commission. At the point in time of the closure letter of 14 March 2016 it was open to the President to take the view that in the circumstances the complaint then lacked substance. In my view this was a legitimate course open to the President and similar to the course taken by Sir Ronald Wilson in Assal.
In Assal the complainant had alleged that he had been discriminated against in the terms and conditions of his employment and in the termination of his employment on the ground of his race. When Sir Ronald became seized of the matter, he commenced to conduct his inquiry to an interim stage, by which he had received almost 10 hours of oral testimony from the complainant, including cross-examination and all the documentary evidence which either party wished to tender. It was at this point, before finishing a full inquiry, that Sir Ronald acceded to the respondent’s application that the complaint was misconceived and lacking in substance, whereupon he dismissed it.
Conclusion
Accordingly, I am of the opinion that:-
a)the President relied in her closure letter on both s.20(2)(a) and s.20(2)(c)(ii);
b)in the circumstances at the date of the closure letter it was legally open to her to dismiss the complaint under either or both of s.20(2)(a) and s.20(2)(c)(ii) of the AHRC Act;
c)I am not involved in this proceeding with a merits review of the decision of the President to close the complaint and not to further inquire into it. This Court is not entitled to substitute its view for that of the President’s;
d)it would have been open to the President, instead of deciding not to continue to inquire into the Applicant’s complaint, to continue the inquiry to a conclusion and give a report setting out her findings and the reasons for those findings to the Applicant to the effect that the relevant acts or practices of the Commonwealth were not inconsistent with or contrary to any human right under s.29(3) of the AHRC Act (see [13] above). That is in fact what the Applicant asserts should have been done by the President. That would mean that the report under s.29(3) would have needed to be more expansive than the closure letter, because in a s.29(3) report the Commission is required to set out its findings and the reason for its findings;
e)however, as long as the conditions for the exercise of the power to decide not to continue to inquire under s.20(2) of the AHRC Act were engaged the discretion of electing to proceed under that section or under s.29(3) was reposed in the President. She made no legal error in deciding under s.20(2) not to continue to inquire into the Applicant’s complaint. Her decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [105] per Gageler J citing Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47] per McLachlin CJ, Bastarache, LeBel, Fish and Abella JJ.
Discretionary Refusal to Grant Relief
At the close of his oral and written Submissions, Mr Lenehan of Counsel, who appeared for the Department, posited that relief should be refused on a discretionary basis as the alleged error of law was of a trivial nature and any relief would be unlikely to produce a different outcome: Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 733 [56]-[60]. I am unpersuaded by this submission. Had I found in the Applicant’s favour, I would not have refused to grant her the relief which she sought.
First, I do not regard a wrongful exercise of power under s.20(2) of the AHRC Act to be an error of a trivial nature. I consider that there is a public interest in the Commission and its President correctly construing their statutory powers in relation to the Commission’s role as a body of inquiry and that it is usually appropriate to remit a decision to it when it has fallen into error.
Second, there is no futility of relief in circumstances where a different outcome would be possible upon remittal of the decision. If remitted, the President might have concluded a subsequent inquiry by providing the Applicant with a report under s.29(3) of the AHRC Act. As I have found, this course would have been open to her.
Dispositive Order
In the result, the Amended Originating Application for Judicial Review filed in this Court on 6 June 2016 must be dismissed for the reasons given above.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 10 April 2017
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