Kienle v Commonwealth of Australia
[2011] FMCA 210
•1 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIENLE & ORS v COMMONWEALTH OF AUSTRALIA | [2011] FMCA 210 |
| HUMAN RIGHTS – Alleged unlawful discrimination that the Respondent has breached the Racial Discrimination Act 1975 (Cth) under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) – by refusing to provide financial assistance by way of a payment under the General Employment & Entitlements Redundancy Scheme (GEERS), on the basis that the Applicants are not entitled to permanent residency in Australia – GEERS is administered by an Executive Scheme and is not reviewable by this Court under the provisions of the Racial Discrimination Act 1975 (Cth) – application dismissed. |
| Australian Human Rights Commission Act 1986 (Cth) ss.11(1)(o), 46PH(1)(i), 46PV, 46PO International Convention on the Elimination of all Forms of Racial Discrimination Article 1(3) Judiciary Act 1903 ss.39B, 78B(1) Racial Discrimination Act 1975 (Cth) ss.3, 5(a) 9(1), 9(1A), 10(1), 13(a) The Constitution ss.51(xxiv), 51(xxvii), 61 Social Security Act 1991 (Cth) s.7 |
| AB v NSW Minister for Education and Training [2003] FMCA 16 AB v NSW Minister for Education and Training (2005) 226 ALR 322 Australian Medical Council v Wilson, Hastings & Morgan (Constituting the HREOC) (1996) 68 FCR 46 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 Ebber & Anor v Human Rights and Equal Opportunity Commission & Ors (1995) 129 ALR 455 Elmaraazey v University of NSW [1996] HREOCA 17 Griggs v Duke Power Co (1971) 401 US 424 Re MIMA; Ex parte Te (2002) 212 CLR 162 Waters & Ors v Public Transport Corporation [1991] HCA 49 |
| First Applicant: | SABINA KIENLE |
| Second Applicant: | LUISE WIEGAND |
| Third Applicant: | ISABELL BECK |
| Fourth Applicant: | FRANK BUSS |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 281 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. M. Neil (SC) appearing with V. McWilliam |
| Solicitors for the Applicant: | Ms A. Tindle of Public Interest Law Clearing House |
| Counsel for the Respondent: | Ms S. Pritchard |
| Solicitors for the Respondent: | Mr N. Gouliaditis of Australian Government Solicitor |
| Amicus Curiae for the Race Discrimination Commissioner: | Mr C. Lenahan |
| Solicitor for the Race Discrimination Commissioner: | Mr B. Akers of Australian Human Rights Commission |
ORDERS
The Application filed on 12 February 2010 be dismissed.
The Applicants’ are to pay the Respondent’s costs, as agreed or assessed under Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 281 of 2010
| SABINA KIENLE |
First Applicant
| LUISE WIEGAND |
Second Applicant
| ISABELL BECK |
Third Applicant
| FRANK BUSS |
Fourth Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with orders made on 9 August 2010, the parties were required to deliver to my Associate, an agreed folder which was to be indexed, labelled and paginated containing all of the documents filed or tendered by the parties which may be relevant to the hearing. This order was complied with and the volume is identified as the Court Book (“CB”).
Background
The four Applicants are German architects who have worked for at least one year in a Sydney architectural practice while holding temporary business long stay 457 visas under a sponsorship arrangement. The employer, Ian Moore Architects Pty Ltd (ABN 79 074 699 648), went into liquidation in October 2008. All staff were made redundant and an insolvency practitioner (Jamieson Loutitt & Associates) was appointed. As the company was operating under the technical services – Architects Award 2000 code AW801194, the Applicants were entitled to retrieve outstanding entitlements of around 12 weeks salary each. Moreover entitlements for annual leave, severance pay and pay in lieu of notice of termination. As the debts could not be recovered from the company, the Applicants were subject to the General Employment Entitlements & Redundancy Scheme (“GEERS”) and the insolvency practitioner lodged for all the employees the GEERS claim form to the Department in November 2008.
On about 17 November 2008, on behalf of the First, Second and Third Applicants, a claim was submitted for payment under GEERS in an amount of $31,216.64, $29,412.72 and $20,971.98 respectively, in respect of owed entitlements. On or about 15 December 2008, on behalf of the Fourth Applicant, a claim was submitted under GEERS for payment of an amount of $25,965.38 in respect of owed entitlements. At the end of January 2009, the GEERS department informed the four Applicants that as they were all 457 visa holders, they were refused recovery by GEERS whereas other employees with permanent residency status recovered their entitlements. The decision to refuse the payment was based on the GEERS Operational Arrangements.
GEERS introduced into their Operational Arrangements on
1 November 2006 and 15 December 2008, new terms. Both additions are in identical form and are as follows:
A claimant has to be entitled permanently in Australia (OA Part 2(6)(d)) thus excluding 457 visa holders as temporary residents from right for recovery of their legitimate entitlements by GEERS.
The four Applicants claim that they had worked legally in Australia and had contributed their skills for the Australian economic welfare, paid taxes and are considered Australian residents for taxation purposes. They state that they have contributed as much quality and dedication to their work as their colleagues who are Australian citizens or permanent residents. Having legitimate outstanding entitlements but being refused the protection of their rights because they were 457 visa holders, they claim that were subject to discrimination on grounds of their residential status and experienced hardship and financial exploitation due to employment in Australia.
The Applicants’ claim that the Australian government takes advantage of the economic contribution of skilled migrant workers but excludes them, at the same time, from protection of legitimate work rights. The Applicants’ claim that the introduction of cl.6(d) into the operational arrangement of GEERS in November 2006 to exclude 457 visa holders from being eligible to GEERS contradicts the Australian government’s efforts towards equality and fair treatment in government services and is not compatible with the Department of Immigration & Australian Citizenship’s Strategic Plan 2008-2011. The GEERS clause fails to protect the rights of temporary overseas workers. Further it does not take into consideration the fact that the 457 visa constitutes a pathway to permanent residency with a majority of 457 visa holders applying for permanent residency status.
Each Applicant lodged a complaint with the Australian Human Rights Commission against the Department of Education, Employment & Workplace Relations (DEEWR). On 15 December 2009, the Commission advised each of the Applicants that their individual complaints alleging discrimination under the Racial Discrimination Act 1975 (Cth) had been terminated under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) on the ground that the Commissioner was satisfied that there was no reasonable prospect of the matter being settled by conciliation. Each Applicant was advised that a copy of their complaint was sent to DEEWR on 1 June 2009. The Commission received replies from DEEWR on 6 July and
3 August 2009. Copies of these replies were sent to each Applicant on 13 August 2009. In its responses, DEEWR advised that GEERS is administered in accordance with the GEERS Operational Arrangements (OAs). It confirms that cl.6(d) of the GEERS OAs require that claimants be entitled to reside permanently in Australia to be eligible to receive GEERS payments.
DEEWR submits that the basis for distinction under cl.6(d) of the GEERS OAs is the claimant’s citizenship/residency status which they claim is not prohibited under the Racial Discrimination Act. Further they submit that DEEWR does not provide goods and services within the meaning of s.13 of the Racial Discrimination Act. In correspondence from the commission it indicated that under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (“AHRC Act”), the President may decide to terminate a complaint if she is satisfied that there is no reasonable prospect of the matter being settled by conciliation.
It was noted that the parties attended a conciliation conference in Sydney on 8 December 2009 and did not reach an agreement to resolve the matter. In those circumstances the Commissioner was satisfied that there was no reasonable prospect of the matter being settled by conciliation and therefore terminated their complaints under s.46PH(1)(i) of the AHRC Act.
Each Applicant was advised that they may apply to the Federal Magistrates Court or the Federal Court of Australia to have the allegations decided by the Court and that application must be made within 60 days of the date of the Notice of termination. Four Applicants filed a joint application in this Court on 12 February 2010.
Procedural background
In setting out the following material I have either paraphrased or quoted directly from the written submissions of the Commonwealth.
I have not made further direct attribution as this would make the summary unwieldy. This information is provided to assist in the understanding of the nature of the Application and not to establish any evidentiary point.
a)On 13 May 2010, the Applicants filed points of claim.
b)The Applicants seek relief under s.46PO of Australian Human Rights Commission Act 1986 in the form of a declaration and orders that DEEWR pay to each of them an amount of their eligible entitlements under GEERS.
c)In the points of claim, the Applicants allege that the refusal to of their claims for payment under GEERS was by reason of their “national origin” and/or by reason of their “immigration status”. They further allege that such refusal constituted indirect discrimination under s.9(1A). In particular, they allege that refusal of the claim was, relevantly, a refusal to supply services under the meaning of s.13. Further, they allege that cl.6(d) of the OAs is inoperative by reason of the guarantee of the equality before the law in s.10(1) of the RDA.
d)On 28 May 2010, the Commonwealth filed a Response to the Points of Claim.
e)On 7 July 2010 the Human Rights Commission filed an Application seeking leave to appear as Amicus Curiae in the hearing of the matter and to make written and oral submissions. In an affidavit in support of the Application, the Race Discrimination Commissioner deposes, inter alia, that:
i)as far as he is aware, there is no authority on the definition of “immigrant” under s.5 of the RDA and this would be the first case considering its meaning; and
ii)leave is sought to make submissions on two points of legal principle raised by the proceedings: first, interpretation of the term “immigrant” in s.5 of the RDA; and second, the interpretation of the application of the term “services” in s.13.
f)On 3 July 2010, affidavits were filed on behalf of each of the Applicants, deposing to the facts of their claims for payment under GEERS and the refusal thereof by DEEWR.
g)On 2 August 2010, submissions were filed on behalf of the Race Discrimination Commissioner.
h)On 23 August 2010, an outline of the Applicants’ submissions together with proposed Amended Points of Claim were filed. The principle amendment is that the Applicants no longer press a claim for direct discrimination under s.9(1) and secondly, they no longer press a claim of contravention of s.9(1A) and s.10(1) based on national origin, but instead base their claim under those provisions on their race.
i)Previously there was no factual dispute that the Applicants are of German national origin. In their affidavits, they depose that they were born in Germany and are of German national origin. The same was admitted by the Commonwealth.
j)The Commonwealth accepts that “race” is not a term of art, and that the words “people of any race” have a wide and non technical meaning: for example, Commonwealth v Tasmania (1983) 158 CLR 1 per Brennan J at 243 (also at 244), Deane J at 273 – 274 in relation to race power in s.51(XXIV) of the Constitution. Accordingly, the Applicants have not deposed that they are of the German race, the Commonwealth accepts that for the purposes of these claims the Applicants are of the German race.
Race Discrimination Commissioner appearing as Amicus Curiae
Mr Lenahan informed the Court that he appeared for the Race Discrimination Commissioner and sought leave to appear as amicus curiae in accordance within the provisions of s.46 PV of AHRC Act which states:
Amicus curiae function of Commission members
(1) A special purpose Commissioner has the function of assisting the Federal Court and the Federal Magistrates Court, as amicus curiae, in the following proceedings under this Division:
(a) proceedings in which the special purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;
(b) proceedings that, in the opinion of the special purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;
(c) proceedings that involve special circumstances that satisfy the special purpose Commissioner that it would be in the public interest for the special purpose Commissioner to assist the Court concerned as amicus curiae .
(2) The function may only be exercised with the leave of the Court concerned.
(3) In this section, special purpose Commissioner means:
(a) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
(b) the Disability Discrimination Commissioner; and
(c) the Human Rights Commissioner; and
(d) the Race Discrimination Commissioner; and
(e) the Sex Discrimination Commissioner.
The parties to the proceedings accepted the Race Discrimination Commissioner and the Commission have a statutory function to assist the Court in matters in which human rights issues arise. Section 11(1)(o) of the AHRC Act provides
(1) The functions of the Commission are:
(o) where the Commission considers it appropriate to do so, with leave of the Court hearing the proceedings and subject to any conditions imposed by the Court, to intervene in proceedings that involve human rights issues;
Ms Pritchard, appearing for the Commonwealth, requested the Court to impose conditions on the basis that the day before the hearing, the Race Discrimination Commissioner served a list of authorities which include cases not referred to for the subject of discussion in the written submissions filed on behalf of the Race Discrimination Commissioner. In order for the Commonwealth to address on issues relating to constitutional law, relevant directions require consultation and instructions in relation to constitutional matters to be obtained from the Constitutional Policy Unit and the Constitutional Litigation Unit in the Attorney-Generals Department. Due to the late revelation of these authorities, there had been no opportunity to seek instructions on these issues. Consequently, it is submitted that if leave is granted it should be subject to the imposition of a condition that the Race Discrimination Commissioner confine himself to matters addressed in his written submissions filed on 2 August 2010 and not address any case not referred to in those submissions.
Apprehension arises from the case Re MIMA; Ex parte Te (2002) 212 CLR 162 which addresses the relationship between the alien powers and the migration power. Ms Pritchard contends that is a matter which has not been addressed by any party in these proceedings and the Commonwealth would simply not be in a position to make any submission in relation to that matter today.
I note the requirement under the Judiciary Act1903, that when matters arise that require notification under s.78B, it requires the adjournment of the proceedings to cause further notices to be given. However, on the understanding that Mr Lenahan’s submissions will be confined to the parameters of the existing notices, I granted leave for the amicus curiae to appear and noted the constraint that the particular case referred to above, is noted.
Mr Lenahan advised the Court that the submissions the Commission proposed to make do not step outside of the s.78B notice and although some of the cases in the list of authorities were not referred to in the written submissions, they directly relate to the s.78B notice.
Constitutional issues
Ms Pritchard referred the Court to the requirements of the Judiciary Act 1903 s.78B(1) which states:
Notice to Attorneys-General
(1) Where a cause pending in a federal Court including the High Court or in a Court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is a duty of the Court not to proceed in the cause unless and until the Court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
Ms Pritchard advised the Court that such notices were served and sought to read the affidavit of Nick Gouliaditis, affirmed 27 October 2010. As there was no objection to the affidavit, it was read. Ms Pritchard indicated that the affidavit revealed that each of the Attorneys – General on whom the notice was served had advised that they did not wish to intervene in the matter. Accordingly, the requirements of s.78B of the Judiciary Act1903 have been complied with and the Court could be satisfied that reasonable notice has been served.
The application
Mr Neil appearing for the four Applicants moved on the application filed in this Court on 12 February 2010 (CB, tab 1) subject to two amendments which he sought leave to make. The first appears in section 5 of the application and Mr Neil advised the Court that the Applicants no longer press a claim that relies on ss.9(1) or 10(1) of the Racial Discrimination Act 1975. As no objection arose, leave was granted.
The second application relates to the First Applicant, Ms Kienle, who wishes to make a claim for damages under s.46PO(4)(d) of the AHRC Act. The damages that she wishes to claim are for injury to feeling and are subject to an affidavit that is proposed to be read.
Points of claim
On 13 May 2010, Counsel for the Applicants filed their Points of Claim (CB, tab 2) and an Amended Points of Claim was later filed on
23 August 2010 (CB, tab 15). At the hearing, Mr Neil indicated that he sought to amend the Points of Claim to take into account that ss.9(1) and 10(1) of the Act were no longer pressed. Further amendments were required to make it clear that the Applicants claim under s.9(1A) of the Act concerned the allegation of discrimination on the ground of race rather than national origin. Also to make exclusive the Applicants’ reliance on their immigration status being relevant to the extended operation of s.13 of the Act.
Ms Pritchard indicated that the Commonwealth had no objection to the amendments which follow from the application no longer pressing reliance on ss.9(1) and 10(1) of the Act.
The Amended Points of Claim relied upon during the hearing were as follows:
1. The Applicant’s are of German nationality and race.
2. The First Applicant commenced work as an employee of Ian Moore Architects Pty Ltd on 14 May 2007.
3. The Second Applicant commenced work as an employee of Ian Moore Architects Pty Ltd on 23 April 2007.
4. The Third Applicant commenced work as an employee of Ian Moore Architects Pty Ltd on 26 February 2007.
5. The Fourth Applicant commenced work as an employee of Ian Moore Architects Pty Ltd on 10 May 2007.
6. By reason of the Applicants’ race and/or by reason that the Applicants were immigrants, they were not at any material time entitled to reside permanently in Australia.
7. The Respondent established and administered the General Employee Entitlements and Redundancy Scheme (GEERS) as a scheme for paying certain entitlements (Eligible Entitlements) of certain employees (Eligible Employees) when their employer was the subject of an insolvency event within the meaning of GEERS and there were no or insufficient funds available to the employer or otherwise to pay the employees’ Eligible Entitlements.
8. The making of payments under GEERS constituted a service that the Respondent made to a section of the public, being Eligible Employees, within the meaning of subsection 13(a) of the Racial Discrimination Act 1975 (Cth) (the Relevant Act).
9. The Respondent promulgated Operational Arrangements by which GEERS was at all material times and is administered.
10. By clause 6(d) of the Operational Arrangements, the Respondent stipulated that claimants under GEERS must be entitled to reside permanently in Australia.
11. In or about October 2008, Ian Moore Architects Pty Ltd was wound up, and was thereby the subject of an insolvency event within the meaning of GEERS.
12. On or about 17 November 2008, each of the Applicants, as Eligible Employees, made claims to the Respondent for payment of their Eligible Entitlements under (GEERS) (Claims).
Particulars
a. The First Applicant claimed $31,216.64
b. The Second Applicant claimed $29,412.72
c. The Third Applicant claimed $20,971.98
d. The Fourth Applicant claimed $25,965.30
13. On or about 31 January 2009, the Respondent refused each of the Claims, and thereby refused to supply payments under GEERS to any of the Applicants (Relevant Conduct).
14. The only ground on which each of the Claims was refused was that, although each of the Applicants otherwise qualified for the payment of their Eligible Entitlements under GEERS, the Applicants did not satisfy the Requirement that they be entitled to reside permanently in Australia imposed by clause 6(d) of the Operational Arrangements (the Operative Ground).
15. In the premises set out in paragraphs 6 and 14, the Respondent engaged in the Relevant Conduct by reason of the race or immigrant status of each of the Applicants.
16. Further, or in the alternative to paragraph 15, the Respondent is taken by the operation of subsection 9(1A) of the Act to have engaged in the Relevant Conduct by reason of the race of each of the Applicants, in that:
a. By paragraph 6(d) of the Operational Arrangements, the Respondent required each of the Applicants to comply with the term, condition or requirement within the meaning of paragraph 9(1A)(a) of the Act that was not reasonable, having regard to the circumstances of the case.
b. Each of the Applicants does not comply with that term, condition or requirement.
c. The Respondent’s requirement that each of the Applicants comply with the term, condition or requirement has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing by persons of, inter alia, German race or the rights to favourable conditions of work, equal pay for equal work and/or just and favourable remuneration referred to in Article 5(e)(i) of the Convention referred to in paragraph 9(2) of the Act (the Relevant Rights).
Claim under section 13(a) of the Relevant Act
17. In the premises set out in paragraph 15 and/or 16, the Relevant Conduct was unlawful by operation of section 13(a) of the Act.
18. In the premises set out in paragraph 17, the Applicants are entitled to a declaration under paragraph 46PO(4)(a) of the Australian Human Rights Commission Act 1986 (the AHRC Act) that the Respondent has committed unlawful discrimination, and an order under paragraph 46PO(4)(b) and/or (c) of the AHRC Act requiring the Respondent to pay each of the Applicants the amount of their Eligible Entitlements under GEERS.
Claim under subsection 9(1) of the Relevant Act
19. The facts, matters and circumstances that are set out in paragraphs 20 to 25 are pleaded further, or in the alternative to, the facts, matters and claims set out in the following paragraphs.
20. The Relevant Conduct constituted an act of the Respondent within the meaning of subsection 9(1) of the Relevant Act.
21. In the premises set out in paragraphs 6 and 14, the Relevant Act involved a distinction, exclusion or restriction within the meaning of subsection 9(1) of the Act based on the Applicants’ race.
22. Further, or in the alternative to, paragraph 21, in the premises set out in paragraph 16, the Relevant Act is to be treated as an act involving a distinction, exclusion or restriction within the meaning of subsection 9(1) of the Act based on the Applicants’ race.
23. The Relevant Act had the effect of nullifying the recognition, enjoyment or exercise, on an equal footing, of the Relevant Rights.
24. In the premises set out in paragraphs 20 to 23, the Relevant Act was unlawful by the operation of subsection 9(1) of the Act.
25. In the premises set out in paragraph 24, the Applicants are entitled to the relief set out in paragraph 18.
Claim under subsection 10(1) of the Relevant Act
26. The facts, matters and circumstances that are set out in paragraphs 27 to 30 are pleaded further, or in the alternative to, the facts, matters and claims set out in the foregoing paragraphs.
27. Paragraph 6(d) of the Operational Arrangements constitutes a provision of a law of the Commonwealth within the meaning of subsection 10(1) of the Act.
28. By reason of paragraph 6(d) of the Operational Arrangements the Applicants as persons of German race, did not enjoy a right that is enjoyed by persons of Australian race, whether at all or to the same extend, being the Relevant Rights.
29. In the premises set out in paragraph 28, by force of subsection 10(1) of the Act, the Applicants enjoy the Relevant Rights to the same extent as persons of Australian race.
30. In the premises set out in paragraph 29, the Applicants are entitled to a declaration under subsection 46PO(4) of the AHRC Act to the effect set out in paragraph 29, and an order under paragraph 46PO(4)(b) and/or (c) of the AHRC Act requiring the Respondent to pay each of the Applicants the amount of their Eligible Entitlements under GEERS.
Applicants’ evidence
Mr Neil indicated that the Applicants relied on the following affidavits which had been filed in the proceedings and he sought to read:
a)Affidavit of Sabine Kienle sworn 9 July 2010 (CB, tab 8). As there was no objection this affidavit was read.
b)Affidavit of Louise Wiegand sworn 12 July 2010 (CB, tab 9). As there was no objection, this affidavit was read.
c)Affidavit of Frank Buss affirmed 12 July 2010. Ms Pritchard objected to para. 8 of the affidavit on the basis of relevance. I note the submission made by Mr Neil that a late application to permanent residency is capable of bearing on an assessment of this Applicant’s intention as at an earlier material time. The s.13 claim concerns the issue as to how one defines an ‘immigrant’ for the purposes of the Act and in particular about whether the relevant person’s subjective intention to settle in Australia, is a criterion for the status of an immigrant for the purposes of the Act. Mr Neil contends, as did the amicus, that the relevant person’s subjective intention to settle in Australia is a relevant criterion of that status. Paragraph 8 was admitted noting the objection and leaving that issue to be determined when the full evidence and submissions had been made.
d)Affidavit of Isabell Gabriele Beck sworn 12 July 2010 (CB, tab 11). The same objection was raised as above with the affidavit being read into evidence with a notation of the objection.
e)
Second affidavit of Louise Wiegand sworn 25 October 2010 which was filed in Court and sought to be read. Ms Pritchard raised objection on the basis of lateness and the contents of
para. 5 which related to the grant of permanent residency to this Applicant. The affidavit was admitted and read.
f)Second affidavit of Frank Buss sworn 25 October 2010 which was filed in Court and sought to be read. Ms Pritchard raised objection to para. 4. The affidavit was admitted and read and the objection noted.
g)Second affidavit of Isabell Gabriele Beck sworn 25 October 2010, which was filed in Court and sought to be read Ms Pritchard objected to para. 4. The affidavit was admitted and read and the objection noted.
h)Second affidavit of Sabine Kienle, sworn 28 October 2010, which was filed in Court and was sought to be read. Ms Pritchard objected to the affidavit primarily on the basis of lateness and that the evidence in Ms Kienle’s affidavit is prejudicial to the Commonwealth because it is too late for the Commonwealth to be able to meet the issue. Mr Neil submitted that the evidence in question is evidence of the First Applicant’s subjective state of mind. Her feelings of injury as a consequence of conduct which alleges to be discriminatory. No enquiry could have been made by the Commonwealth at any time is capable of bearing on an assessment of that matter. Ms Kienle was present and available to be cross-examined about her assertions of injured feelings. Ms Pritchard indicated that the Commonwealth would not, if leave were granted, propose to seek to cross-examine. However, the Commonwealth would seek to file supplementary submission in the event that the claim was found to be substantiated and upheld in relation to what flows from the evidence concerning compensation. The affidavit was read.
i)Mr Neil indicated to the Court that if there was a question of the Applicants’ German nationality then he would call evidence on that issue. However, Ms Pritchard informed the Court that the question of nationality is not an issue and confirmed that the Commonwealth accepted that at all material times, each Applicant was a German national, that is, a person of German nationality.
j)Mr Neil informed the Court that there was no evidence in reply.
The above material forms the Applicants’ case.
Respondent’s evidence
Ms Pritchard indicated that the Commonwealth relied upon the following evidence:
a)Affidavit of Nick Gouliaditis affirmed 27 October 2010. As there was no objection this affidavit was read. Attached to the affidavit are the Notice of a Constitutional Matter to the State and Territories Attorney General and responses.
b)
Affidavit of Mr Shane Maundrell sworn 23 July 2010 (CB tab 12). As there was no objection, this affidavit was read. Exhibit SM-1, Tab 1 GEERS Operational Arrangements issued
1 November 2006 (applicable to Ms Kienle, Ms Wiegand and
Ms Beck). Tab 2 GEERS Operational Arrangements issued
15 December 2008 (applicable to Mr Buss). Both operational arrangements are in identical form.
c)Exhibit R1 – letter from the Australian Government, Department of Education, Employment and Workplace Relations, Employee Entitlements Branch dated 9 June 2009 addressed to Ms Sabine Kienle.
The above material forms the case for the Commonwealth.
Legislative framework
Mr Lindley has provided a convenient summary of the legislative history of the Racial Discrimination Act 1975 (Cth) (“RD Act”), relevantly:
a)The RD Act was enacted to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).
b)The CERD aims to eliminate discrimination and achieve equality without distinction as to race, colour, decent or national or ethnic origin. These aims reflect long standing and widely recognised international human rights of non-discrimination and equality.
c)Section 9 of the RD Act contains a general provision rendering any direct or indirect race discrimination unlawful.
d)Sections 11 – 15 of the RD Act prescribe race discrimination in specific areas of public life, including employment, access to places and facilities and the provision of goods and services.
e)Section 13 of the RD Act provides that it is unlawful for a person who supplies goods and services to the public to refuse or fail on demand to supply those goods and services to another person by reason of the race, colour or national or ethnic origin of that other person, or of any relative or associate of that other person.
f)CERD does not refer to discrimination on grounds of immigration status. In order to enact s.5 of the RD Act, Parliament relied on the “immigration and emigration” power contained in s.51(xxvii) of the Constitution of the Commonwealth.
g)Section 13 of the RD Act, read together with s.5(a) of the RD Act, provides that it is unlawful for a person who supplies goods or services to the public or to any section of the public, to refuse or fail on demand to supply those goods or services to another person, by reason that the other person, or any relative or associate of that other person, is or has been an immigrant.
h)Section 13 is a provision that binds the Crown in right of the Commonwealth.
The RD Act s.9 states:
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.
(1A) Where:
(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)the other person does not or cannot comply with the term, condition or requirement; and
(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
Section 13 of the RD Act states:
Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
Mr Neil informed the Court that the although the Applicants did not rely on s.9(1), it does require a qualification. Subsection 9(1) deals with direct discrimination whereas s.9(1A) deals with indirect discrimination. It has been authoritatively held that those two concepts are separate and distinct. However, s.9(1A) operates by deeming the conduct to which it refers be conduct which falls within s.9(1) so to that extent they are not separate. It is s.9(1) which declares the conduct that falls within it to be unlawful. Consequently, to that extent, it is necessary for the Applicants to rely on s.9(1).
The General Employee Entitlements and Redundancy Scheme (GEERS) is a basic payments scheme for employees unpaid entitlements established by the Australian Government and is administered by the Department of Education, Employment and Workplace Relations (DEEWR). GEERS is administered in accordance with the operational arrangements. The two most recent versions of the Operational Arrangements commenced on 1 November 2006 and 15 December 2008. Each version of the OAs contain relevantly identical clauses. GEERS provides for the payment of employees’ unpaid Eligible Entitlements (being entitlements identified in cl.8 of the OAs) when:
a)Their employer (as defined in cl.23 of the OAs) has been subject to an insolvency event (being an event referred to in cl.6a of the OAs);
b)There are insufficient funds or assets available to the employer to pay those entitlements; and
c)No other source of funds is available.
Clause 6(b) of the OAs provides relevantly that in order to be entitled to a payment under GEERS, a complainant must be entitled to reside permanently in Australia. It is not in dispute that it was the Applicants’ inability to comply with that requirement that was the only reason why they did not receive a payment under GEERS.
Claim pursuant to s.9(1A) – applicants’ submissions
Mr Neil submits that there are four elements of a cause of action invoking s.9(1A) of the RD Act. The Applicant must show that:
a)The Respondents required the Applicant to comply with a term, condition or requirement (separately or together, a requirement);
b)The requirement was not reasonable having regard to the circumstances of the case;
c)The Applicants do not or cannot comply with the terms, conditions, or requirement;
d)The requirement has a purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race as the Applicants of any human rights or fundamental freedoms in the economic field of public life.
Mr Neil submits that the framework of the Applicants’ case is that:
a)the Respondent requires them to comply with the requirements that they be permanent residents of Australia or Australian citizens (the Relevant Requirement);
b)the relevant requirement was not reasonable in the circumstances of the case as there was no objectively reasonable connection between the relevant requirement on one hand, and the purposes or objects of clause 4 of the operational arrangements of GEERS on the other hand. The Applicants adopt the test of reasonableness: Catholic Education Office v Clark (2004) 138 FCR 121 at [115];
c)the Applicants did not comply with the Relevant Requirement;
d)the Relevant Requirement has the effect of nullifying the recognition or enjoyment on an equal footing by persons who were not of Australian race of the right to favourable conditions of work, equal pay for equal work and/or just and favourable remuneration referred to in article 5(e)(i) of the Convention as defined in s.3 of the Act.
In Catholic Education Office v Clarke [2004] FCAFC 197 per Sackville and Stone JJ at [115], their Honours state the principles to be applied when determining whether a requirement or condition is not reasonable:
[115] The appellants did not submit that the primary Judge had erred in stating the principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case (DD Act, s 6(b)). As his Honour remarked, the principles are now well settled: see State of Victoria v Schou [2004] VSCA 71, at [25], per Phillips JA (with whom Buchanan JA agreed). They include the following:
(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there.
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, at 395–396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82–83, per Lockhart J.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson, Hastings & Morgan (Constituting the HREOC) (1996) 68 FCR 46, at 61–62, per Heerey J; Commonwealth Bank v HREOC, at 112–113, per Sackville J.
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383–384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.
Mr Neil submits that of particular significance to the matter before this Court is the criterion set out in sub-paragraph (ii) which directs attention to the nature and extent of the discriminatory effect of the conduct on one hand, and the reason advanced in favour of the condition requirement on the other. Mr Neil argues that in this matter, the former manifestly outweighs the latter. The Applicants qualify in every respect for a payment under GEERS, but for the fact that they did not at the relevant time have permanent residency. The result was that as a consequence of that single fact, the Applicants were denied payment which would have made up just and reasonable remuneration for work that they had performed.
The Operational Arrangements that pertain to GEERS set out its objectives in cl.4:
Objects of GEERS
a) GEERS is intended to:
(i) provide a basic payment scheme for Employees’ unpaid Eligible Entitlements when their Employer has been subject to an Insolvency Event, there are insufficient funds or assets available to the Employer, and no other source of funds is available to pay the Eligible Entitlements; and
(ii) recover any Advance if and when funds become available.
Note: clause 8 sets out the basic payments which may be an Eligible Entitlement.
(b) In administering GEERS we apply the following principles:
(i) Employers retain the prime responsibility for the payment of Employee entitlements;
(ii) as a publicly funded basic payment scheme, GEERS is only intended to cover Eligible Entitlements up to the standards defined in Clause 8;
(iii) GEERS is only intended for situations when the Employer is unable to fulfil their obligations in relation to outstanding entitlements because they are subject to an Insolvency Event;
(iv) we will not advance GEERS funds if our ability to recover the Advance has been diminished, is uncertain, or is inadequately protected;
(v) GEERS is not intended to supplement any form of business restructuring; and
Note: Part 3 of the OAs sets out how we will give effect to this principle.
(vi) we will usually make a GEERS Advance through Insolvency Practitioners, who are responsible for making payments to Employees for their unpaid Eligible Entitlements.
Note: see Part 4 for further information about Insolvency Practitioners.
Mr Neil submits that those objectives do not identify any reason why an employee, who would otherwise qualify for a payment under GEERS, should be disqualified by reason only of the fact that they are not entitled to permanent residency given that, in every material respect, their entitlement would otherwise be the same as any other employee, and the justification for payment, having regard to the objects of GEERS, would be identical. In the absence of any reason in support of the imposition of that condition or requirement, there can be no doubt of the nature and effect of that consequence of the discriminatory conduct on the Applicants. It does not appear from the Operational Arrangements, nor can it rationally be defined from those arrangements. There is no rational connection between the object of GEERS and the requirement that was imposed on the Applicants.
In Waters & Ors v Public Transport Corporation [1991] HCA 49 per Brennan J at [378] his Honour states:
Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction.
Mr Neil submits that his Honour, in the above passage, identifies a need for a rational connection between the conditional requirement on the one hand, and the purpose of, in this case GEERS, on the other hand. In the case before this Court, there is no such connection. The imposition of the requirement is, so far as it appears, wholly extraneous to the objects of GEERS, which is no doubt why the requirement has produced what, on the face of it, is an irrational result. Namely, that people who perform the same work as other employees entitled to permanent residency, who suffer the same loss as those employees, who have made the same contribution to their employer and to the economic life of this country were, nevertheless, denied a payment on the sole ground that they were not entitled to permanent residency. It is having regard to those considerations, that the requirements imposed on the Applicants in this case were not reasonable. Mr Neil made those submissions on behalf of his clients in respect of s.9(1A)(a).
Mr Neil submits that in respect of s.9(1A)(c) that the concept of “race” is not defined in the Act and contends that by its proper construction, the Act includes nationality within the concept of race. Such a construction accords with the ordinary and natural meaning of the concept of race because the Act is beneficial legislation, the statutory concept of “race” should be given a literal construction. Moreover, the In pari materia legislation of every other Australian jurisdiction adopts the same construction. Although the definition acted for the purposes of the legislation of a state, it does not control the interpretation of a federal statute In pari materia legislation should receive a consistent interpretation. This is a particular case where an Act provides that it is to be read together with another Act.
Mr Neil advanced two considerations. The first is that nationality is capable of falling within the ordinary and natural meaning of “the concept of race”. In that regard, the dictionary definition of the word “race” in the Second Edition of the Oxford English Dictionary at point 1(b) states:
A tribe, nation, or people, regarded as of common stock. In early use freq. with modified adjective, as British race, Roman race, etc.
Mr Neil submits that nationality is capable of falling within the ordinary and natural meaning of the word “race” when it is used, as it is in the Act, as a noun in the context in which it appears in the Act. The second consideration in comparable legislation enacted in every state, the concept of race is defined to include nationality as an element.
Mr Neil acknowledged that it was important to the success of his clients’ claim under s.9(1A) that the Court is persuaded that the concept of race encompass nationality within the meaning and for the purposes of the RD Act. Mr Neil further acknowledges if the Court is not persuaded in that respect, his clients will not succeed and indicated that all subsequent submissions made on behalf of his clients depend upon that premise.
In support of the resolution of this issue, Mr Neil referred the Court to the decision in Australian Medical Council v Wilson, Hastings & Morgan (Constituting the HREOC) (1996) 68 FCR 46 where his Honour Black CJ at [47] stated:
I have had the advantage of reading the reasons for judgment prepared by Heerey J and by Sackville J. I agree that orders should be made in the terms proposed by Heerey J and except in relation to one aspect of the construction of s 9(1A)(c) of the Racial Discrimination Act 1975 (Cth) (the Act), which does not affect the outcome, I agree generally with his Honour's reasons.
As to s 9(1A)(c), I am of the view that in the application of the provision the comparison that has to be undertaken can and should extend beyond groups that are subject to the same term, condition or requirement.
His Honour Heerey J, in his judgment, addressed the issue of s.9(1A)(c) – “equal footing”. At [63]:
The decision of the commission, and the argument of all counsel before this Court, proceeded on the assumption that s 9(1A)(c) invited comparison between a group to which Dr Siddiqui belonged, whether that group be defined as OTDs or OTDs of Indian national origin, and Applicants for registration who, being graduates of accredited medical schools, did not have to sit the AMC examinations.
In my opinion, s 9(1A)(c) does not, in the circumstances of this case, mandate or permit such a comparison. The provision speaks of ``equal footing'’ so necessarily some comparison is required. However, the two groups compared have to be subject to the same term, condition or requirement. Graduates of Australian and New Zealand medical schools are not required to pass the AMC examinations, with or without quota.
The legislative history of s 9(1A) shows that it was designed to deal not with direct discrimination but with the imposition of terms, conditions or requirements which impacted in a disproportionately adverse way on members of the complainant's protected group as defined by race, colour etc.
…
However, and notwithstanding the approach of United States Courts referred to above, it is understandable that Australian legislators might have thought that the imposition of a term, condition or requirement which on its face applied to all who had to meet it, regardless of race, colour, etc, could not be an act involving a distinction etc ``based on'’ race, colour etc. Accordingly, s 9(1A) was introduced. The problem of a term, condition or requirement not having any apparent connection with race, colour, etc is overcome because the law can now look at how the complainant and his or her group fare in facing the term, condition or requirement compared with others not of that group who also face it. It seems to me that such a comparison is essential. If the term, condition or requirement is in truth ``based on'’ race, colour etc then no comparison is required and we need go no further — s 9(1) applies. If it is not, then only by the comparison suggested can it be ascertained whether the term, condition or requirement has the purpose or effect proscribed by s 9(1A)(c). I might add that the comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a sub-group (the complainant's group) within a larger group (all who face the same term, condition or requirement).
This reading is supported by the mutual exclusivity approach and the legislative intention emerging from the explicit reliance on Banovic in the parliamentary debates.
His Honour Sackville J addresses the same issue at [80]:
As Heerey J has noted, s 9(1A)(c) of the RD Act speaks, as does s 9(1), of the enjoyment or exercise ``on an equal footing'’ of any human right or fundamental freedom. It does so in the context of a subsection which deems certain acts requiring a person to comply with a term, condition or requirement to be acts involving a distinction based on the person's race, colour, descent or national or ethnic origin. Plainly s 9(1A)(c), by the use of the phrase ``on an equal footing'’, contemplates a comparison of some kind. The comparison must involve the group to which the complainant belongs. That group, depending on the circumstances, must be defined by reference to race, colour, descent or national or ethnic origin. The question is with what other group must the comparison be made.
It must be said that the wording of s 9(1A) gives no clear indication as to the nature of the comparison that must be undertaken. The language used is elliptical, reflecting the terms of the Convention from which s 9(1A)(c) is (at least in part) derived. Given the obscurity of the language, I do not think that s 9(1A)(c) compels a conclusion that the comparison to be made is between two (or more) groups, each of which is subject to the same term, condition or requirement. Nor do I think that the decision of the High Court in Banovic provides support for such a conclusion in relation to s 9(1A)(c).
In my opinion, the language used in s 9(1A)(c) is satisfied if the effect of a requirement to comply with a particular condition is to impair the exercise of a human right by persons of the same group as the complainant, on an equal footing with members of other groups, regardless of whether or not those other groups are required to comply with the same condition. Of course, the usual case of alleged discrimination involves the disparate impact of a particular requirement or condition upon two or more groups, each of which is identified by reference to race, colour, descent or national or ethnic origin. But there may well be cases in which members of a group are impaired in the exercise of a human right precisely because they must comply with a condition to which members of other groups are not subject.
Mr Neil submits that the purpose and effect of sub-section 9(1A) is that everyone should have equal recognition, enjoyment or exercise of human rights in the economic fields of public life, regardless, of their nationality. While put in another way, every nationality and thus every race, should have equal recognition, enjoyment or exercise of those human rights. Paragraph (c) is satisfied if a term, condition or requirement within paragraph (a) and (b) has the purpose or effect of nullifying or impairing any nationalities of recognition, enjoyment or exercise of those human rights, on an equal footing with any other.
Mr Neil argues that if one nationality is required to comply with a relevant term, condition or requirement, and every other nationality is required to do so, then the latter nationality have unequal recognition in enjoyment or exercise of their relevant human rights in comparison to the former nationality. If that position contained the imposition of the term, condition or requirement constitutes indirect discrimination within the scope of s.9(1A) and is therefore made unlawful of the operation of s.9(1).
In the case before this Court, the term, condition or requirement that was imposed on every claimant under GEERS was that they be entitled to permanent residency if they were to receive a payment under GEERS. That is a requirement which is facially neutral. On its face it has nothing to do with any claimant’s nationality, but as the authorities refer to above, make clear facial neutrality is not decisive. Section 9(1A) requires that one look behind the facial neutrality at the effect that the imposition of a term, condition or requirement has on, relevantly, particular nationalities. Persons of Australian nationality can comply with the requirement of eligibility under GEERS as a right. No other nationality can do so, including persons of German nationality. If a person of German nationality, or indeed any nationality other than Australian in order to comply with the requirement, they must comply with additional requirements.
Claims pursuant to s.9(1A) – respondent’s submissions
Ms Pritchard submits that the Commonwealth accepts that the Applicants are of German nationality and there is no question from the Commonwealth’s point of view in relation to that. The Commonwealth has also accepted, for the purposes of these proceedings, that the Applicants are of German race, in the broad sense, however, the Commonwealth does not accept that because the Applicants are of German nationality, they therefore, are of German race. Consequently, the Commonwealth does not accept that it flows from the fact of nationality that the Applicants are of German race. The concept of ‘nationality’, which is accepted in relevant jurisprudence in the Federal Court, the Full Court and the High Court, that nationality is one synonymous with citizenship. That is the basis upon which the Commonwealth accepts that the Applicants are of German nationality, however the Commonwealth does not accept that it flows from ‘citizenship’ that one is of a particular race. The status of citizenship is one that is conferred by statute. The concept of ‘race’ is a much broader one which has national ethnic connotations.
Ms Pritchard submits that in relation to this claim of indirect discrimination, the Applicants have not identified any relevant group for the purposes of the comparative exercise which is required to be undertaken. The Commonwealth says that for the purposes of the claim, the relevant comparison is one between persons of the German race, broadly understood, and persons in Australia of other than the German race. If those groups are accepted as the relevant one for the purpose of comparison, then the question that follows is whether a higher proportion of the persons of the German race are unable to comply with the requirements that they be entitled to reside in Australia permanently. Ms Pritchard argues that the Applicants have not filed any evidence capable of supporting a finding to that effect. In support of this contention, Ms Pritchard referred the Court to the decision in Ebber & Anor v Human Rights and Equal Opportunity Commission & Ors (1995) 129 ALR 455 per Drummond J, where his Honour at 482 held that the claim of indirect discrimination within s.9(1A) of the RD Act failed because the Applicants had made no attempt to produce any evidence to suggest that they may have such a case.
In AB v NSW Minister for Education and Training [2003] FMCA 16 per his Honour Raphael ACFM, the issue before the Court was whether the requirement in the entrance test for selective high schools in New South Wales, that a student be an Australian citizen or permanent resident of Australia, a citizen of New Zealand, or a permanent resident of New Zealand, contravened the prohibition of direct discrimination in s.9(1) or the prohibition of indirect discrimination in s.9(1A). The Applicant, AB, was an intellectually gifted boy who was the holder of a Bridging E visa, granted to persons awaiting the outcome of a substantive visa application that would give him permanent residency in Australia. Dismissing AB’s application, his Honour Raphael ACFM stated at [13] – [14]
[13] Merkel J’s judgment was upheld by a Full Bench of the Federal Court in De Silva v Minister for Immigration (1998) 159 ALR 355. Their Honours accepted the distinction between nationality and national origin and confirmed the right of the state to make laws or enact policy which differed between persons who were its citizens and persons who were not. The policy decision made by the New South Wales Department of Education was a decision made on that latter basis. It seems to me that the diverse multicultural society found in New South Wales and in particular in Sydney militates against the possibility that requiring a person to comply with the condition of citizenship or residence would have the effect of nullifying or impairing that person’s recognition, enjoyment or exercise, on an equal footing, by persons of the same national or ethnic origin as the other person of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
[14] Whilst not denying the ability of a properly instructed and skilful Counsel to make an argument that the actions of the department constituted indirect discrimination against the Applicant, I would have to say that on the basis of current authority it is an argument that is most unlikely to succeed.
In AB v NSW Minister for Education (2005) 226 ALR 322, AB brought a second claim against the state of New South Wales, alleging that his exclusion from the selective New South Wales high school on the basis that he was not an Australian or New Zealand citizen, or an Australian permanent resident, indirectly discriminated against persons of Romanian national origin. His Honour, Driver FM dismissed the application holding that the Applicant failed to prove the higher proportion of persons of Romanian national origin could not comply with the requirement. His Honour observed at [55] – [56]:
[55] The Applicant assumes that virtually all persons of Australian or New Zealand national origin would be able to satisfy the requirement that they be citizens or permanent residents in order to attend a selective school in New South Wales. The available statistical evidence, although somewhat general, indicates that the overwhelming majority of persons of Romanian national origin in Australia could also satisfy the requirement. The Applicant contends that the requirement of citizenship or permanent residence operates in an indirectly discriminatory fashion against person of Romanian national origin because they must apply for permanent residence or citizenship, and some do not qualify for it, whereas persons of Australian or New Zealand national origin generally acquire citizenship or residence automatically without application.
[56] In my view, that contention falls into the trap of confusing national origin with citizenship. New Zealanders acquire the right to reside indefinitely in Australia by reason of their New Zealand citizenship, not because they are persons of New Zealand national origin. Persons of Australian national origin are not necessarily entitled to Australian citizenship or even permanent residence. If the Applicant had been born in Australia he might arguably be considered a person of Australian national origin but he would be in no better position to that which he is now in as a person of Romanian national origin. There are probably many thousands, and possibly hundreds of thousands, of persons born in Australia who might be accepted as persons of Australian national origin who are not entitled to Australian citizenship or permanent residence. That is most likely because their parents are not Australian citizens or permanent residents. They may, nevertheless, have lived in Australia for many years and have formed a connection to Australia sufficient for their children to be considered persons of Australian national origin. There is no evidence that such persons are in any better position than persons of Romanian national origin. The Applicant cannot limit the comparison to persons of Australian national origin who acquire citizenship at birth. That would be a comparison between persons of Romanian national origin and Australian citizens. There is nothing before me to persuade me that the broad class of persons born in Australia who might be considered persons of Australian national origin are better able to comply with the Respondent’s requirement for citizenship or permanent residence than persons of Romanian national origin, whether they were born in Romania or in Australia.
Ms Pritchard submits that applying the analysis of his Honour Driver FM in AB v NSW Minister for Education (2005) (supra) to the matter before this Court, that in the absence of evidence, the Court could not conclude that persons other than German race are better able to comply with the requirements of citizenship or permanent residency than persons of the German race. Both groups will necessarily include persons who had become Australian citizens or permanent residents. Absent such evidence, the Court would assume, as did Driver FM, that the statistical evidence, if available, would indicate that the overwhelming majority of persons could also satisfy the requirement. Ms Pritchard also referred the Court to the comments of his Honour Sackville J in Australian Medical Council v Wilson, Hastings & Morgan (Constituting the HREOC) (supra) at [82] – [83] (which is reproduced [46] above). Ms Pritchard further contends that if the relevant group (and again, the Applicants do not descend to the level of particularity in their analysis) for the purpose of comparative exercise, are persons of the German race and persons who might be described as being of the ‘Australian race’. Applying by analogy the analysis of Driver FM (that there was probably many thousands and possibly hundreds of thousands of persons born in Australia who might be accepted as persons of Australian national origin who are not entitled to Australian citizenship or permanent residency), the Court would resist concluding persons of the Australian race are better able to comply with the requirement of citizenship or permanent residence.
Finally, it is submitted, it remains to be considered whether the requirement would be found to be ‘not reasonable’ having regard to the circumstances of the case. The Commonwealth submits that the Applicants (on whom the onus lies) have not established the unreasonableness of the exclusion of non-permanent resident employees (or guest workers) from the payment of entitlements. In this regard, the Commonwealth refers in particular, to the wide spread adoption of similar criteria in Commonwealth legislation and programs, particularly in the area of social security (for example, s.7 of the Social Security Act 1991 (Cth), and to the qualitative different nature of entitlements conferred by temporary as opposed to permanent visas.
Claim pursuant to s.9(1A) – race discrimination commissioner
Mr Lenahan, appearing for the Race Discrimination Commissioner, did not file any written submissions or make oral submissions in respect of this issue.
Claim pursuant to s.9(1A) – consideration
The Applicants arrived in Australia on a temporary business long-stay 457 visa to supply a local architectural firm, Ian Moore Architects Pty Ltd with their services for approximately 1.5 years. The Applicants have contributed their skills for the economic benefit of an Australian company and have been considered as Australian residents for taxation purposes. The Applicants claim, and I have no reason to disbelieve, that they had contributed as much quality and dedication to their work as did their fellow colleagues who happened to be Australian permanent residents or citizens. On the face of this matter, it does seem an injustice not to award all employees their rightful entitlements, duly owed by their employer.
At this stage it is important to note that it has been accepted by this Court, that many German nationals are able to attain citizenship or permanent residency status in Australia. No evidence has been led to suggest that they are in any way disadvantaged in the process of applying to and satisfying the residence or citizenship requirements presently adopted by the Commonwealth. The issue then turns to whether the policy adopted by the GEERS executive scheme is contrary to the intentions of s.9(1A) of the RD Act.
The issue raised in this ground is one of governmental policy and, as I see it, whether that executive scheme policy is in direct contradiction to the enacted provisions of the RD Act, giving effect to Australia’s support of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).
The Convention itself also relevantly indicates in Article 1(3) that:
Nothing in this Convention may be interpreted as affecting in any way the legal provisions of State Parties concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality.
His Honour Raphael ACFM considered the validity of governmental policy which had an exclusionary effect determined on the basis of national origin, in AB v NSW Minister for Education [2003] (supra), at [12] – [14]:
[12] In the definition of indirect discrimination the words describing the basis of the acts complained of are repeated including that of national origin. In deciding whether or not a possible breach of s 9 has occurred, which would make the Applicant amenable to the jurisdiction conferred by the HREOC Act, consideration must be given to whether or not a policy of the department which clearly discriminates between persons who are Australian nationals or permanent residents and other persons could be, arguably, discriminating on the ground of national origins. This matter was considered by Merkel J in De Silva and Others v Ruddock (1998) unreported FCA His Honour considered both the English and Australian authorities including Ealing London Borough Council v Race Relations Board [1972] AC 342 before concluding:
Nonetheless, there is powerful independent support for the conclusion that “national origin”, as used in s 9 of the RD Act, does not simply mean citizenship. Article 1(2) of the Convention specifically provides that the Convention is not to apply to distinctions, exclusions, restrictions or preferences made by a state party between citizens and non-citizens. In my opinion, Ealing provides guidance for Australian Courts concerning the meaning of the phrase “national origin” as used in s 9 of the RDA Act.”
[13] Merkel J’s judgment was upheld by a Full Bench of the Federal Court in De Silva v Minister for Immigration (1998) 159 ALR 355. Their Honours accepted the distinction between nationality and national origin and confirmed the right of the state to make laws or enact policy which differed between persons who were its citizens and persons who were not. The policy decision made by the New South Wales Department of Education was a decision made on that latter basis. It seems to me that the diverse multicultural society found in New South Wales and in particular in Sydney militates against the possibility that requiring a person to comply with the condition of citizenship or residence would have the effect of nullifying or impairing that person’s recognition, enjoyment or exercise, on an equal footing, by persons of the same national or ethnic origin as the other person of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
[14] Whilst not denying the ability of a properly instructed and skilful Counsel to make an argument that the actions of the department constituted indirect discrimination against the Applicant, I would have to say that on the basis of current authority it is an argument that is most unlikely to succeed.
In the present case, the term, condition or requirement imposed upon the Applicants was that they were required to be an Australian or New Zealand citizen or an Australian permanent resident in order to benefit from the GEERS provisions. I am satisfied that this term, condition or requirement was reasonable in the circumstances. The benefits afforded to citizens and permanent residents, although appearing to be exclusionary on people who are not at the time considered to be in either category, does not of its self discriminate against people from a particular national origin who have not progressed their intention to be legally recognised as a citizen or permanent resident in Australia. As I have indicated above, there is no evidence and certainly no argument advanced that people of German nationality are in any way disadvantaged in the process of acquiring either permanent residency or citizenship status. The fact remains that at the time of their respective applications to GEERS, the Applicants had not satisfied the requirements of citizenship or residency status and therefore had not complied with the standard Operational Arrangements in the administration of the GEERS executive scheme.
The nature of executive schemes
It is pertinent to note that the power and capacity of the Executive Government of the Commonwealth to adopt executive schemes such as GEERS that rely on the Executive Power under s.61 of the Constitution rather than a power conferred by legislation, is not in dispute in these proceedings.
The necessity of government agencies to bear legal authority for any action they take is a critical element to the proper function of government. A large proportion of that authority is derived from legislation passed by the Parliament; however, the source of authority for administering much of the ordinary affairs of government relies on the executive power. Examples of everyday affairs may include the entering of contracts, development of policy, administering community programs, the conduct of inquiries, managing property and staff etc.
At the Commonwealth level, funding to support the exercise of the executive power is authorised by the appropriations made by the Parliament, either specifically or as part of general Commonwealth appropriation.
The GEERS scheme is administered by the Department of Education, Employment and Workplace Relations and is not administered in accordance with any legislative provisions. The GEERS scheme could be defined as a pure executive scheme and is implemented without any direct legislative backing.
In the recent Report of the Commonwealth Ombudsman, Executive Schemes Report No. 21, August 2009 the Commonwealth Ombudsman identifies some of the drawbacks of executive schemes:
1.11 The very flexibility that is the key advantage of executive schemes can pose risks to people’s rights in terms of program accountability and review of decisions. Government agencies are subject to a range of checks and balances, but the accountability framework assumes that they are exercising powers conferred by legislation. If they are not, many of the core safeguards do not apply.
1.12 Decisions made under executive schemes are not subject to review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), which covers only decisions made under an enactment (s 3). Nor are the merits of such decisions reviewable by generalist or specialist administrative tribunals. There are only very restricted rights of judicial review by the High Court or Federal Court, arising under the Constitution s 75 and the Judiciary Act 1903 s 39B. The Administrative Review Council has twice recommended that the ADJR Act be extended to include administrative decisions made under non-statutory schemes,4 but this recommendation has not been implemented.
1.13 As a result, the Ombudsman is the only administrative law agency that can review decisions made under executive schemes. Decisions within the Ombudsman’s jurisdiction include those made by private organisations that provide goods and services to the public under a contract with government (such as running immigration detention centres and the Welfare to Work program).5 The Ombudsman cannot overturn decisions, but may make recommendations to the agency and the minister.
1.14 The restricted review and appeal rights under executive schemes are of concern, since decisions made under these schemes are often just as important and can affect people’s rights and interests just as much as decisions made under legislative schemes.
The Commonwealth Ombudsman further identifies the differing accountability measures available under legislative and executive schemes in the Executive Schemes Report No. 21, August 2009:
1.19 Government schemes that are established by legislation are subject to a range of accountability measures that do not apply to executive schemes.
1.20 If the eligibility criteria for a grant or program are in an Act, they must pass through several stages of scrutiny before Parliament agrees to them. First, all bills are drafted by the Office of Parliamentary Counsel, whose officers give expert assistance to agencies to ensure allowance is made for transitional arrangements, unforeseen circumstances and protection of rights and liberties in accordance with standard drafting principles. Second, agencies preparing legislation must consult with other government agencies and, where appropriate, with other interested parties. Third, once a bill is introduced to Parliament, it is subject to scrutiny by at least one parliamentary committee. The Senate Scrutiny of Bills Committee considers and reports publicly on each bill against criteria such as whether the bill trespasses unduly on personal rights and liberties, whether it makes rights, liberties or obligations unduly dependent on insufficiently defined administrative powers or non-reviewable decisions, or whether it provides insufficient parliamentary scrutiny of how a power is exercised. In addition, many of the more complex or controversial bills are referred to standing committees for more detailed public inquiry and report before Parliament debates them.
1.21 When the criteria for a program or grant are in regulations made under an Act, there are similar although more limited measures to review their content. The
Office of Legislative Drafting and Publishing (OLDP) drafts all regulations. The Senate Regulations and Ordinances Committee considers all regulations and reports on whether they are in accordance with the parent statute, whether their provisions would be more appropriately contained in legislation and whether they trespass unduly on personal rights and liberties or make rights unduly dependent on administrative decisions whose merits cannot be independently reviewed. All bills, Acts and regulations are available to the public online.
1.22 Sometimes program criteria are not in legislation or regulations but are set out in a legislative instrument. Those too are subject to a range of safeguards: OLDP drafts some of those instruments on request by agencies; there are measures to promote high drafting standards; consultation is required where business may be affected; all instruments are published online on the Federal Register of Legislative Instruments; and all legislative instruments (with limited exceptions) are subject to disallowance by Parliament. These requirements are underpinned by the Legislative Instruments Act 2003.
1.23 By comparison, criteria for executive schemes:
· are less likely to be drafted by a person who has training and experience in legislative drafting
· require no public consultation in their development or amendment (except if they are regulatory schemes covered by the Best Practice Regulation Handbook)
· are not routinely examined by Parliament, although high profile or controversial schemes may be the subject of committee inquiries or parliamentary questions, particularly during the Senate estimates process
· are not agreed by or subject to disallowance by Parliament
· are not necessarily published as soon as they come into effect or when they are amended.
The ability of this Court to review decisions of the Executive, that take their form from executive schemes, is confined to the limited scope available under s.39B of the Judiciary Act 1903. Relevantly, s.39B states:
Original jurisdiction of Federal Court of Australia
(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
Jurisdiction for certain writs that relate to criminal prosecutions etc.
(1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a Court of a State or Territory:
(a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and
(b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter.
(1C) Subject to subsection (1D), at any time when:
(a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a Court of a State or Territory; or
(b) an appeal arising out of such a prosecution is before a Court of a State or Territory;
the following apply:
(c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;
(d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a Court is invested with, or has conferred on it, jurisdiction with respect to any such matter.
(1D) Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.
(1E) Where subsection (1D) applies, the prosecutor may apply to the Court for a permanent stay of the proceedings referred to in that subsection, and the Court may grant such a stay if the Court determines that:
(a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and
(b) a stay of proceedings will not substantially prejudice the person.
Jurisdiction for certain writs that relate to civil proceedings
(1EA) If:
(a) a civil proceeding is before the Family Court of Australia, the Federal Magistrates Court or a Court of a State or Territory; or
(b) an appeal arising out of such a proceeding is before the Family Court of Australia or a Court of a State or Territory;
the following apply:
(c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person who is or was a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related civil proceeding decision;
(d) the following Court is invested with, or has conferred on it, jurisdiction with respect to any such matter:
(i) if the civil proceeding or appeal is before the Family Court of Australia--that Court; or
(ii) if the civil proceeding is before the Federal Magistrates Court--that Court; or
(iii) if the civil proceeding or appeal is before a Court of a State or Territory--the Supreme Court of the State or Territory.
Jurisdictional rules to apply despite any other law
(1F) Subsections (1B), (1C), (1D), (1E) and (1EA) have effect despite anything in any other law. In particular:
(a) neither the Jurisdiction of Courts (Cross‑vesting) Act 1987 , nor any other law, has the effect of giving the Federal Court of Australia jurisdiction contrary to subsection (1B), (1C) or (1EA); and
(b) neither section 9 of the Administrative Decisions (Judicial Review) Act 1977 , nor any other law, has the effect of removing from the Supreme Court of a State or Territory the jurisdiction given to that Court by subsection (1B), (1C) or (1EA).
The application in the present proceedings has not addressed any ground within the Court’s limited capacity for review under s.39B of the Judiciary Act 1903. It is therefore not open to this Court to infer any grounds that may be available within the ambit of s.39B for the purposes of these proceedings.
Claims pursuant to s.9(1) and s.10(1)
At the hearing of the matter on 28 October 2010, Mr Neil for the Applicants indicated that he no longer wished to press a claim that relies on subsections 9(1) or 10(1) of the RD Act. This was not objected to by the Respondents and will not be discussed further in my reasons for judgment.
Claim pursuant to s.13 – applicants’ submissions
The Applicants claim that the Respondent refused to supply services to them by reason that they were immigrants, in contravention of s.13(A) of the RD Act. Section 13 states:
Provision of goods and services
13. It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
The term ‘immigrant’ is not defined in s.3 of the RD Act. All parties have provided extensive submissions in relation to the interpretation of this term and how it should be read in relation to s.13.
The Applicant submits that the service in question is the payment under GEERS, representing employee entitlements to individuals who become unemployed because their employer has gone into liquidation.
Section 3 of the RD Act provides that ‘services’ include services consisting of the provision of facilities by way of banking or insurance or of facilities for grants, loans, credit or finance.
Both parties make lengthy submissions on the construction and interpretation of the term ‘services’, and it is conceded by the Commonwealth that the concept of ‘services’ has been broadly construed in relevant case law. Further submissions were led in respect to the definition of ‘immigrant’ and whether the definition should be extended to include a broader interpretation, so the Applicants should relevantly fall within the proscribed meaning of s.13 of the RD Act.
I do not believe it to be the place of this Court to enter into analysis of statutory interpretation and redefinition unless the circumstances of the case give rise to a potential breach of s.13. This will be discussed further in my consideration of s.13 below.
Claim pursuant to s.13 – respondent’s submissions
In the Respondent’s written submissions it is indicated that some controversy exists as to whether s.13 is contravened where indirect discrimination can be established. In this regard, it is submitted that s.13 in its terms proscribes only direct discrimination. In Elmaraazey v University of NSW [1996] HREOCA 17, Commissioner Basten (as he then was) noted that ss.11-15 had not been drafted to include indirect discrimination, notwithstanding the apparent purpose of the drafter. In applying the decision of the US Supreme Court in Griggs v Duke Power Co (1971) 401 US 424 , the Commissioner concluded that s.13 “should be read to include requirements which, although neutral in their own terms, have a discriminatory impact”.
The Respondent indicates that it is unnecessary to resolve the controversy in the present case as the Applicants rely on the general prohibition of indirect discrimination in s.9(1A) which presents essentially the same issues for consideration.
Ms Pritchard, in her oral submissions for the Respondent, submits that the Applicants have failed to establish or address, in either their written or oral submissions, that any relevant refusal or failure to supply services was by reason of the Applicants’ status as persons who are or have been immigrants. Ms Pritchard submits that the necessary causal nexus has not been established.
Claim pursuant to s.13 – consideration
Under the circumstances, I do not believe it is necessary to make any substantive finding in relation to the definition of the term ‘immigrant’. The approach that I have taken assumes that, for the purpose of analysis of the section, the section applies to the Applicants. I have given the Applicants the benefit of analysis under the terms of the section, prior to analysis of an ambiguity in relation to definition, so that in the interests of justice, the Applicants may be satisfied that their claim under this provision has been analysed according to the law, as it stands. That being, for the reasons stated below, I am not satisfied that a claim under s.13 can be sustained.
I am inclined to agree with the Respondent’s submissions that a claim under s.13 bears the necessary evidential requirement and cannot therefore be upheld in the absence of any direct evidence. The Applicants have presented argument substantially in relation to the issues of definition, in relation to ‘services’ and ‘immigrant’. They seem to go no further in presenting evidence that the refusal to supply the Applicants with a payment under GEERS was by reason that the Applicants, if indeed they may fall within the scope of the term, were ‘immigrants’. I take the view that s.13 does necessarily require that evidence be provided to substantiate any connection between a failure to supply a service and that such a failure to supply was by reason that the potential recipient was indeed an immigrant. The nature of any other claim, in the absence of direct evidence, would necessarily fall under the definition of indirect discrimination and thus is substantially the same as the claims presented under s.9(1A) (above).
In any event, the decision not to supply the Applicants with payment under GEERS still falls under an executive scheme. As the present claims have not been framed within the Court’s only avenue for review under s.39B of the Judiciary Act 1903, I am given no choice but to dismiss the application on all grounds.
Conclusion
For the reasons stated above, the Application filed on 12 February 2010 should be dismissed, with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
1 April 2011
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