Keller v Prof. Tay - [2004] FMCA 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELLER v PROF. TAY & ANOR

[2004] FMCA 182

HUMAN RIGHTS – Summary dismissal – complaint against President and Commissioner of HREOC for terminating complaint against Centrelink – termination of complaint correct.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46 PO(1), 46PH(2)
Sex Discrimination Act 1984, ss.40(2)(h), 5
Social Security Act 1991, s.92F
Racial Discrimination Act 1975, s.9
Disability Discrimination Act 1992, s.5

Applicant:

LECH KELLER

First Respondent:

PROFESSOR ALICE TAY

Second Respondent:

DR SEV OZDOWSKI

File No:

MZ 781 of 2001

Delivered on:

31 March 2004

Delivered at:

Melbourne

Hearing Date:

20 March 2002

Judgment of:

Phipps FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent’s:

Ms C Sedpell

Solicitors for the Respondent’s:

Australian Government Solicitors

ORDERS

That the Application is dismissed.
That the Applicant pay the Respondents’ costs fixed at $3982.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 781 of 2001

LECH KELLER

Applicant

And

PROFESSOR ALICE TAY

First Respondent

And

DR SEV OZDOWSKI

Second Respondent

REASONS FOR JUDGMENT

Introduction

This application, is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act1986 (Cth) (the Act) following determination by the first respondent, who was the President of the Human Rights and Equal Opportunity Commission (HREOC) of a complaint made against the first respondent under the Act by the applicant on 30 August 2001. The respondents have applied for summary dismissal.
By letter dated 2 February 2001 the applicant made a complaint against Centrelink, Box Hill, Victoria to HREOC of unlawful and discriminatory practices based on race, ethnic origin, sex, sexual preferences, marital status and disability. The applicant receives a disability support pension. By a letter dated 29 January 2001 Centrelink advised the applicant that his rent assistance had been cancelled because he had not given Centrelink proof of rent payments. This led to the applicant making his complaint against Centrelink. His complaint was that he had received from Centrelink a request for further information form accompanied by a living arrangement form which contained the question “Do you live with other people”. He claimed that this was discrimination based on the basis of sex because the living arrangements form asked for particulars of persons of the opposite sex with whom the applicant lived. In his submissions, it was apparent that this was the basis of the applicant’s complaint. His letter of complaint of 2 February 2001 also alleged discrimination on the basis of race, ethnic origin, marital status and disability.
On 11 May 2001 the first respondent determined the complaint by Notice of Termination issued pursuant to s.46 PH (2) of HREOC Act. The Notice of Termination stated as follows:
“The Racial and Disability discrimination aspects of the complaint against the respondent have been terminated pursuant to Section 46 PH (1) (c) of HREOCA on the ground that I am satisfied that these aspects of the complaint are lacking in substance”. Pursuant to Section 46 PH (1) (a) of the HREOCA, the sex discrimination aspect of the complaint is also terminated on the grounds that the alleged unlawful discrimination is not unlawful discrimination.
A letter dated 11 May 2001 attached to the Notice of Termination outlined the reasons for the first respondent’s decision.
By letter dated 30 August 2001 to HREOC the applicant complained that the first respondent, by terminating the complaint against Centrelink on 11 May 2001 had unlawfully discriminated against him because of his sex, sexual orientation, ethnicity and disability.
By notice dated 25 September 2001 the first respondent issued a Notice of Termination pursuant to s.46 PH (2) of HREOC Act. The Notice stated:
“The complaint of racial, sex and disability discrimination against the respondent has been terminated pursuant to Section 46 PH (1) (c) of the HREOCA on the ground that I am satisfied that the complaint is lacking in substance”.
In relation to the applicant’s complaint dated 2 February 2001 the first respondent said this:
“In relation to rent assistance, information regarding policy and procedures concerning the payment obtained by the Commission indicates that proof of rent payment is required for the assessment of the eligibility of rent assistance. The amount of rent being paid by the rent assistance customers can be verified by using their current lease, the tenancy agreement or rent certificate.
The information before the Commission indicates that on

22 January 2001 Centrelink received your rent certificate dated 17 January 2001 in which you stated that you paid $70.00 per week to Mrs Maria Keller. Centrelink wrote to you on 25 January 2001 requesting further information and on 29 January 2001, you provided Centrelink with a “Living arrangements” form in response to Centrelink’s request for further information. On 29 January 2001, Centrelink advised you that your rent assistance had been cancelled because you did not give Centrelink proof of your rent payments.
The Commission contacted the Box Hill’s Centrelink office to verify the surrounding circumstances of the cancellation of the rent assistance and the current status of your rent assistance payment. The Commission was advised because you did not answer question 1 of the “Living Arrangements” form concerning the listing of “Persons of the opposite sex that live at your current address” and duty or statement in the rent certificate that you were paying $70.00 per week rent to Mrs Maria Keller, your former wife, Centrelink decided to temporarily cancel your rent assistance payment pending an investigation into the matter to ascertain your continued eligibility for rent assistance.
The Commission was further advised that following investigation into the matter in which Mrs Maria Keller was spoken to, details of your living arrangements were verified, Centrelink was satisfied that you continue to meet the eligibility criteria for rent assistance. Centrelink confirmed that, currently, you are being paid rent assistance and that payment was backdated to

29 January 2001.
The information indicates that your rent assistance was cancelled because you provided Centrelink with insufficient information to support your claim for the payment. There is no objective evidence before the Commission to indicate that your race or disability were a factor in the cancellation of the payment on

29 January 2001.
To substantiate a complaint of racial and disability discrimination under Section 13 of the RDA in Section 24 of DEA, it is not sufficient for a person to show that he or she has a disability and is of a different race, colour, decent, or national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, wholly or partly, or sufficiently connected to his or her race, colour, decent or national or ethnic background and disability.
Under the circumstances, I am satisfied that the race and disability discrimination aspects of your complaint are lacking in substance. Accordingly, pursuant to Section 46 PH (1) (c) of the HREOCA, I have decided to terminate these aspects of your complaint on that basis.
You also claim that you were discriminated against by Centrelink on the basis of your sex. Section 40 (2) (h) of the SDA states that:
“nothing in Division 1 or 2 affects anything done by a person in direct compliance with any of the following as in force on

1 August 1994;
“(h) Social Security Act 1947”
The information before the Commission shows that Centrelink’s payment of your rent assistance was made under the Social Security Act 1991 (The Act) and the decision to temporarily cancel your payment due to the lack of information to clarify your eligibility at the time appears to be in direct compliance with The Act. Under the circumstances, I am satisfied that the alleged discrimination in not unlawful discrimination pursuant to Section 46PH (1)(a) HREOCA.
You also claim that Centrelink discriminated against you because of sexual preference by asking you a question about your living arrangements with persons of the opposite sex.
I note the information before the Commission indicates that under the Social Security (Administration) Act 1999, Centrelink has a wide range of powers to obtain information or require documents to be produced which are relevant to decisions made under Social Security Law. The information to be provided by the claimants or recipients may include information such as sex, marital status, address etc to verify claims of payment. Failure to comply with these requirements may result in cancellation or suspension of the payment.
The HREOCA only covers discrimination on the basis of sexual preference in the area of employment as proscribed in Article 1 of the Convention concerning Discrimination in Respect of Employment and Occupation scheduled to the HREOCA. I note that as you are recipient of Centrelink’s service and you are not employed by Centrelink, the Commission is not able to enquire into this aspect of your complaint as the conduct complained about does not constitute a breach of human rights as defined by HREOCA. Accordingly, pursuant to Section 32 (3) (a) of the HREOCA, I have decided not to enquire into the Human Rights aspect of your complaint for that reason. This aspect of your complaint is now finalised and closed”.
Nothing in the evidence of the applicant shows that the first respondent’s determination, that she was satisfied that the race and disability discrimination aspects of the complaint were lacking in substance was wrong. There is nothing to show that the actions of Centrelink were based in any way or connected in any way with the applicant’s race, colour, decent or national or ethnic background and disability.
Section 40 (2) (h) of the Sex Discrimination Act 1984 provides, as already set out in the first respondent’s decision;
Nothing in division 1 or 2 affects anything done by a person in direct compliance with any of the following as in force on 1 August 1984;
(h)The Social Security Act 1947.
Section 92F of the Social Security Act 1991 provides:
(1)An approved form may require the applicant to provide relevant information.
(2)The secretary may, by written notice given to the applicant, require the applicant to give the secretary, in a specified period, further relevant information. The secretary may refuse to register the applicant until the applicant gives the secretary the information.
Sub-section 4 then sets out a definition of relevant information.
The first respondent’s decision that s.40 (2) (h) excluded Centrelink from the operation of Division 1 and 2 of the Sexual Discrimination Act was plainly correct.
Section 32 (3) (a) of the Act provides:
The Commission may decide not to enquire into an Act or Practice or, if the Commission has commenced to enquire into an Act or Practice, may decide not to continue to enquire into the Act or Practice if –
(a) the Commission is satisfied that the Act or Practice does not constitute discrimination;
The first respondent’s decision that she could not enquire into the complaint of discrimination on the basis of sexual preference because the Act only discovers discrimination on the basis of sexual preference in the area of employment as prescribed in Article 1 of the Convention is also plainly correct.
In the reasons for her decision for terminating the complaint against her made on 30 August 2001, the first respondent first of all set out s.9 of the Racial Discrimination Act 1975, s.5 of the Sex Discrimination Act 1984, and s.5 of the Disability Discrimination Act 1992 and then said:
“I have considered the issue you have raised and I am satisfied that my decision was based on documentary evidence provided by Centrelink and the assessment that you provided the Commission with no or insufficient objective evidence to sustain your claims of discrimination. I can clearly state that in reaching the decision, your race, sex or disability was not a factor. The enquiry was conducted in accordance with the usual procedures and the decision was made pursuant to my legal authority.
As previously advised, the information before the Commission indicated that your rent assistance was cancelled because you provided Centrelink with insufficient information to support your claim for the payment. There is no objective evidence before the Commission to indicate a link between your race, sex or disability and the decision to cancel the payment on 29 January 2001.
I note the Commission was advised that because you did not answer question 1 of the “Living arrangements” form concerning the listing of persons of the opposite sex that live at your current address” and duty or statement in the rent certificate that you were paying $70 per week to Mrs Maria Keller, your former wife, Centrelink decided to temporarily cancel your rent assistance payment pending an investigate into the matter to ascertain your continued eligibility for rent assistance. The Commission was further advised that following investigate into the matter where Mrs Maria Keller, details of your living arrangements were verified, Centrelink was satisfied that you continued to meet the eligibility criteria for rent assistance, and therefore, rent assistance payment was paid and back dated to 29 January 2001.
Furthermore, I note the Commission accepted your complaint for investigate and obtained copies of documents from Centrelink to verify your claims. In relation to the cancellation of your rent assistance, I am satisfied that the decision to terminate your complaint under RDA and DDA was based on objective evidence before the Commission at the time.
In relation to your claim of discrimination on the basis of your sexual preference in the provision of goods and services is not an unlawful Act under HREOCA. Therefore the decision not to enquire into your complaint of sexual preference discrimination was made pursuant to Section 46 PA (1) (a) of the HREOCA.
In the circumstances, I am of the view that your complaint against me as President of the Commission is lacking in substance. Pursuant to Section 46 PH (1) (c) of the HREOCA, I have decided to terminate your complaint on that basis”.
The applicant argued that it was wrong that the first respondent should be investigating a complaint against herself. Whether, as a matter of policy, there should be some means of complaint against HREOC or its president is not a matter of relevance in this application. The applicant made a complaint to HREOC and the first respondent was obliged to deal with it in accordance with the provisions of the Act.
When it was pointed out to him that matters under the Social Security Act were exempted from the Sex Discrimination Act the applicant argued the inconsistency with other discrimination legislation. What the applicant was putting was a question of policy, not the effect of the legislation and so not a matter of relevance to this application.
The evidence shows that the first respondent had no choice but to deal with the complaint of 2 February 2001 as she did. There is no basis for saying that the first respondent’s decision to terminate the applicant’s complaint of 2 February 2001 was in any way based on or in any way connected with the applicant’s race, ethnic background, sex or disability. The application against the first respondent must be dismissed.
The second respondent, by a response filed on 31 January 2002 sought that the application against him be dismissed because it disclosed no reasonable cause of action.
Foundation of jurisdiction of the court is a complaint to HREOC. Section 46 PO (1) of the Act provides –
If:
(a) a complaint has been terminated by the President under Section 46 PE or 46 PH;
(b) the President has given a notice to any person under Sub Section 46 PH (2) in relation to the termination;
(c) any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
No complaint against the second respondent was made to HREOC. Therefore there is no basis for jurisdiction in the court. The application against the second respondent must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: