Koppen v Commissioner for Community Relations
[1986] FCA 219
•02 JUNE 1986
Re: KEVIN KOPPEN
And: THE COMMISSIONER FOR COMMUNITY RELATIONS
No. QLD G52 of 1985
Administrative Law - Discrimination - Words and Phrases
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.
CATCHWORDS
Administrative law - natural Justice - Certificates issued following Compulsory Conference under Racial Discrimination Act 1975 - Alleged bias by person presiding at Conference - Whether such a person under duty to accord natural justice.
Discrimination - Conciliation - Commissioner for Community Relations - Certification that Compulsory Conference has failed to settle complaint - Receipt of such a certificate pre-condition to commencing civil proceedings under Racial Discrimination Act 1975.
Words and Phrases - "in connexion with" - Administrative Decisions (Judicial Review) Act, 1977, s.5(1)(a) - Breach of rules of natural justice by person presiding at Compulsory Conference - Decision by Commissioner for Community Relations following Conference to grant certificates - Whether breach occurred "in connexion with" decision to grant certificates.
Racial Discrimination Act 1975
Administrative Decisions (Judicial Review) Act 1977
Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321
Testro Bros. Pty. Ltd. v. Tait (1963) 109 CLR 353
Mahon v. Air New Zealand Ltd. (1983) 50 ALR 193
In Re Pergamon Press Ltd. (1971) Ch 388
National Companies and Securities Commission v. News Corporation (1984) 52 ALR 417
Selvarajan v. Race Relations Board (1976) 1 All ER 12
HEARING
BRISBANE
#DATE 2:6:1986
ORDER
THE COURT DECLARES that the certificates given on 24 February 1984 are of no effect.
THE COURT ORDERS that the respondent pay the applicant's costs of and incidential to the application, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an application under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") to review a decision of the Commissioner for Community Relations given on 24 February, 1984. On 24 February 1984, the Commissioner issued certificates that a person appointed by him had presided over a conference directed to be held under s.22 of the Racial Discrimination Act 1975 ("the Act") and had endeavoured to settle certain matters in dispute and that, as at that date, the matters had not been settled. The receipt of such a certificate is a pre-condition to the commencement of civil proceedings under the Act s.24(3).
The basis of the application is that the person who presided at the conference was affected by bias.
No submission was made that the decision sought to be reviewed in this application was not amenable to review under the Judicial Review Act. So far as is relevant, s.3(2)(b) of the Judicial Review Act provides:-
"(2) In this Act, a reference to the making of a decision includes a reference to - ...
(b) giving ... a certificate".
One of the grounds of review in the Judicial Review Act is that contained in s.5(1)(a), namely that "a breach of the rules of natural justice occurred in connexion with the making of the decision".
The applicant is the defendant in proceedings in the Supreme Court of Queensland, which were commenced by six plaintiffs on 11 May 1984. The plaintiffs in that action seek a declaration, damages and an injunction in respect of alleged racial discrimination by the applicant and his staff at premises known as The Playpen International Nightclub, in Cairns. The plaintiffs, who are of Aboriginal and/or Islander origin, claim to have been refused access to the applicant's premises by reason of their race, colour or ethnic origin. This conduct, if made out, is made unlawful by s.11 of the Act, and grounds civil proceedings under s.24 of the Act, if a certificate of the kind earlier referred to has been given.
Paragraph 15 of the Statement of Claim recites:-
"Prior to the institution of these proceedings, the Plaintiffs each received a certificate pursuant to Section 24(3) of the Act dated the 24th day of February, 1984 signed by the Commissioner for Community Relations stating that a person appointed by the delegate of the Commissioner for Community Relations had presided over a conference directed to be held under Section 22 of the Act in relation to the refusals and had endeavoured to settle the matters and that at the date of the certificate the matters had not been settled."
The Defence, which was delivered on 4th December, 1984, denied the allegations of unlawful conduct. Paragraph 7 of the Defence was in these terms:
"The Defendant further says that the Certificates referred to in paragraph 15 of the Statement of Claim are null and void, and that as a consequence therefrom the Plaintiffs are not entitled to bring the proceedings that they have commenced against the Defendant."
In February, 1985, Thomas J., in the Supreme Court of Queensland at Cairns, ruled that the question of the validity of the certificates was a matter which could be determined only by the Federal Court of Australia. Section 44 of the Act confers federal jurisdiction on state courts to hear and determine proceedings instituted in those courts under s.24 of the Act. However, s.22(5) effectively prevents any inquiry in such proceedings with respect to anything said or done at a conference and, in particular, any alleged bias demonstrated by the person presiding at a conference.
On 21 June, 1985, an application was filed in the Federal Court for an extension of time to file and serve an Application for an Order of Review, seeking to review the decision to issue the certificates. There were good and sufficient reasons for the delay in filing that application. The solicitor acting then for the Human Rights Commission (which was then the respondent) did not oppose the granting of the extension of time. On 1 August, I gave leave to extend the time and gave certain directions. On 16 September, 1985, further directions were given by Pincus J. The matter was reviewed by me on 15 November, 1985, and set down for trial in Townsville at the end of March, 1986. Some of the delays since the institution of Federal Court proceedings has been occasioned by the serious illness of the applicant's wife, necessitating his presence in the United States of America.
The trial of the application was heard on affidavit. Neither party sought to cross-examine the deponents of the other side. In fact, it appears that no dispute as to the facts emerges from the affidavit material. That material establishes that on 9 and 10 February, 1984, a compulsory conference was convened pursuant to the provisions of s.22 of the Act at the Court House in Cairns. Mr. Christopher Fuller has been a delegate of the Commissioner for Community Relations under s.40(2) of the Act since 16 November, 1982. He attended that compulsory conference, which was in relation to complaints made under the Act against Mr. Koppen by seven complainants. His account appears accurately to reflect what occurred at that conference. The affidavits of Mr. Koppen and Mrs. Scott are not in any material respect in conflict with his version.
He says that the chairperson presiding at the conference was Evelyn Ruth Scott. The material shows that Mrs. Scott is a person of Aboriginal or Islander extraction. No submission was made that Mrs. Scott was not properly appointed to preside at the conference.
Mr. Fuller swears in his affidavit:-
"The purpose of such conferences is to endeavour to resolve those matters which are the subject of complaint. The functions of the Conciliator and, in this instance the Chairperson, include facilitating the process of negotiation between the parties, proffering suggestions or assisting participants where necessary and generally endeavouring to keep negotiations ongoing where there is the prospect of settlement."
The conference commenced early in the afternoon of Thursday, 9 February, 1984 was adjourned late that afternoon, and resumed on Friday morning. Insofar as is presently material, Mr. Fuller's account of what occurred is to this effect:-
"I recall that during the conference there were ongoing discussions betwen the complainants and Kevin Koppen regarding the various allegations of the complainants. Allegations were made by the complainants of the existence of a general ban on Aboriginal and Islander people being permitted to enter certain premises referred to in the complaint. These allegations were denied by Mr. Koppen. I recall that this topic comprised a substantial part of the discussions between the respective participants.
To the best of my recollection it was within the context of these discussions that Evelyn Scott uttered words to the effect that her daughters had been refused entry to the premises in question. ... At this juncture Mr. Koppen sought to confer with his legal advisors. The meeting then resumed.
The following morning, after it became apparent that a settlement was unlikely, the meeting was addressed by Mr. Koppen's legal advisor. He submitted, inter alia, that the conference was a nullity as a matter of law because of what he described as bias allegedly displayed by Evelyn Scott in making certain comments.
The conference was then adjourned to a date to be fixed. I subsequently reported to the Commissioner for Community Relations that a conference had been convened pursuant to Section 22 of the Act in an endeavour to settle the matter in question and that the matter had not been settled."
Mr. Jeremy Long, the Commissioner for Community Relations, confirms that he was informed by Mr. Fuller that a compulsory conference pursuant to s.22 had been held and that the chairperson presiding at the conference was Ruth Evelyn Scott and that the conference failed to resolve the issues in dispute between the complainants and the respondent. On 24 February, 1984, he issued certificates pursuant to s.24(3) of the Act in respect of each of the seven complainants certifying that a conference had been convened under s.21(1) in an endeavour to settle the matter but that, as at that date, the matter had not been settled.
Six of the seven complainants commenced the Supreme Court proceedings to which I have referred. None of the complainants is a daughter of Mrs. Scott.
On the morning of the hearing of this matter, significant amendments were made to the application for review. Leave was granted to substitute as the proper respondent the Commissioner for Community Relations, in place of the Human Rights Commission. The original application sought to review "the decision of the Human Rights Commission constituted by Evelyn Scott". This was amended to seek to review "the decision of the Commissioner for Community Relations".
The decision under review is that the respondent "decided that a person appointed by the Commission had presided over a conference directed to be held under s.22 of the Act, and had endeavoured to settle the matters and, at the date of the certificate(s) the matters had not been settled". The sole ground of the application is "that a breach of the rules of natural justice occurred in that the person appointed by the Commissioner for Community Relations to preside over the conference demonstrated bias." The applicant did not seek to challenge the Commissioner's decision to grant the certificates on the ground that, for example, the Commissioner failed to take into account a relevant matter, namely, Mrs. Scott's conduct in presiding at the Compulsory Conference. The sole ground of challenge is based on s.5(1)(a) of the Judicial Review Act.
Three issues arise for determination:
1. Whether a breach of the rules of natural justice occurred "in connexion with" the making of the decision to give the certificates.
2. Whether the duty to accord natural justice applies to a compulsory conference under the Act.
3. Whether or not a breach of any such duty occurred.
The applicant does not put his case on the basis that before giving the certificates, the Commissioner ought to have given him the opportunity to be heard on whether the certificates ought to be issued. The applicant's case is that the alleged bias of Mrs. Scott occurred "in connexion with" the giving of the certificates.
The respondent argues that there is insufficient connexion between the conference presided over by Mrs. Scott and the giving of the certificates, in that there is no evidence to establish that Mr. Fuller told the Commissioner what had occurred at the conference and the submissions that had been made. The applicant made no request for the Commissioner's reasons for his decision, and the respondent argues that there is no material upon which to call into question the conduct of the Commissioner in giving the certificates.
I accept that there is no evidence that Mr. Fuller did any more than tell the Commissioner that a conference had been held and that a settlement had not been reached. However, in my opinion, that does not mean that the alleged bias of Mrs. Scott did not occur "in connexion with" the giving of the certificates.
As an ordinary expression, "in connexion with" means a relation between one thing and another. The words "in connexion with" can be used to describe a relation with a contemplated future event: (Johnson v. Johnson (1952) P 47, at p 50). Accordingly, the alleged bias at the conference may be described as occurring "in connexion with" the Commissioner's decision to issue the certificates in respect of the conference.
In principle, there is much to be said for this view. The statutory duty of the Commissioner is to endeavour to effect a settlement of complaints of racial discrimination (s.20, s.20A). A failure to accord natural justice by a person that the Commissioner appoints in the discharge of that obligation, in truth is the Commissioner's failure. A compulsory conference which is presided over in a manner which manifests partisanship cannot be regarded as a conference held to settle a complaint.
In my opinion, if it be established that the rules of natural justice apply to a compulsory conference under the Act, and if it be established that a breach of those principles occurred, then that breach may be said to have occurred "in connexion with" the giving of the certificates.
The second issue for determination is whether the rules of natural justice must be observed by a person presiding at a compulsory conference.
The respondent denies that the duty to accord natural justice applies to the conduct of the conference under the Act. It acknowledges that the person presiding at the conference is under a duty to endeavour to settle the matter, but argues that the duty to accord natural justice applies only to decisions which affect the rights of a person. The compulsory conference is said not to make any such decision, since the question of whether unlawful discrimination occurred remains to be determined in court proceedings under s.24.
In Kioa v. The Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, at p 346, Mason J. stated:-
"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention."
Many judicial formulations of the doctrine of natural justice suggest that the duty is only attracted if the exercise of a statutory power culminates in a decision which affects the rights, interests or legitimate expectations of an individual. However, many of these formulations occur in cases which do not involve the threshold question of whether the principles of natural justice apply. As Mason J. observed in Kioa at p.347:-
"The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"
The cases which involve the threshold question of whether the rules apply are often concerned with exploring the concept of "legitimate expectation" or arguments that a statute displaces the duty to accord natural justice. The fact that these cases formulate the rule in terms of "decisions which affect rights, interests and legitimate expectations" is not determinative of the application of the rule to other cases. The question remains whether the dictates of procedural fairness apply to the exercise of statutory powers which do not culminate in a decision which affects rights, interests or legitimate expectations.
De Smith's Judicial Review of Administrative Action, 4th ed. (1980), p.233, describes this as "one of the most troublesome problems in the whole of administrative law". The problem usually arises in the context of statutory bodies which are merely advisory or investigatory. A parallel problem arises in relation to obtaining prerogative relief against such bodies. In Australia, the position has been influenced by Testro Bros. Pty. Ltd. v. Tait (1963) 109 CLR 353, which concerned the investigatory and reporting functions of an inspector under the Companies Act, 1961 (Vict.) Two observations should be made about that decision. First, in the light of later authorities, it should not be taken as authority for the broad proposition that the rules of natural justice apply only to bodies whose decisions directly affect rights. Secondly, to the extent that Testro Bros. v. Tait is authority for the view that the rules of natural justice do not apply to certain investigatory bodies, it does not determine the application of these rules to conciliatory bodies.
In that case, a majority of the High Court (McTiernan, Taylor and Owen JJ.) ruled that the company inspector was not required to accord natural justice for two reasons. First, the act imposed no obligation upon the inspector to act judicially or to conduct his investigations by a process analogous to the judicial process. Secondly, the inspector's report did not "of its own force prejudicially affect the rights of the company, the affairs of which were the subject of the investigation" (at p.363).
Kitto J. delivered a dissenting judgment, which was based upon a different interpretation of the legislation from that adopted by the majority (see in this respect his Honour's later remarks in Banks v. Transport Regulation Board (Victoria) (1968) 119 CLR 222 at p 243). In relation to the inspector's report, Kitto J. observed at 366:-
"If, like the report of a Royal Commission, it is a report and nothing more, so that whatever its terms it cannot affect the legal situation of the company to the affairs of which it relates, the inspector is not engaged upon a proceeding to which the principle here invoked applies."
His Honour went on to consider certain provisions of the Companies Act, 1961, which gave legal consequences to the inspector's report, including the fact that it could be made the basis upon which to petition for the winding-up of the company. Kitto J. concluded that notwithstanding that an adverse report did no more than expose the company to the possibility of adverse legal consequences, this was enough to attract the duty to accord natural justice. His reason was that "the report itself prejudices the rights by placing them in a new jeopardy; it involves 'civil consequences' to an individual." (p.368). A statutory authority would prima facie be under a duty to accord natural justice if it affected an individual "either by directly curtailing or destroying rights of his or by subjecting them to a new hazard" (p.370).
The other dissenting judgment of Menzies J. was similarly concerned with whether an analysis of the Act suggested that the inspector was under an obligation "to act judicially". According to his Honour, a statutory investigation which merely was established to obtain information for a Minister upon which to base his decisions and actions, is not subject to the rules of natural justice, but once its findings or opinions are given legal consequences and are made the foundation in law for further proceedings in relation to the company, then the duty to accord natural justice arises.
The judgments in Testro Bros.Pty.Ltd. v. Tait reflect different views about the legal consequences of the company inspector's report. The judgment of the majority was not prepared to depart from earlier authority because of the fact that the 1961 Act made the inspector's report an additional ground for making a winding-up order. This was said not to change the nature of his investigation. The minority judgments emphasise the fact that the report created a basis for winding up proceedings and, in the words of Kitto J., subjected the company's rights to "a new hazard". At p.368, Kitto J. observed:-
"It is not as great a prejudice, of course, as the actual making of a winding-up order would be, but it is nonetheless a real prejudice in a legal respect, and that in my opinion is enough."
More recent company legislation deals specifically with the duty to accord natural justice and was considered by the High Court in National Companies and Securities Commission v. News Corporation Ltd. (1984) 52 ALR 417.
In the United Kingdom, the duty of inspectors investigating and reporting upon the affairs of a company was considered in In Re Pergamon Press Ltd. (1971) Ch 388. In that case the company inspectors argued that they were not bound by the rules of natural justice. The Court of Appeal rejected that submission. Lord Denning M.R. accepted that the inspectors did not have quasi-judicial functions, but only investigated and reported, and did not even decide whether there was a prima facie case. But Lord Denning M.R. noted that the company inspector's report may have wide repercussions. It may affect reputations, lead to judicial proceedings, both criminal and civil, and bring about the winding-up of the company. In these circumstances he concluded that the inspectors "must act fairly". At p.399, he ruled:-
"This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial, but only administrative: see R. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida (1970) 2 QB 417."
Sachs L.J. at p.402 was of a similar opinion that, in the light of recent decisions, it was inappropriate to attempt to label the inspector's function as judicial, quasi-judicial, administrative, or investigatory.
Buckley L.J. at p.407 observed that the function of the inspector was not a judicial function, but they were still required to act fairly. His Lordship noted that the inspector's report may prompt a company to institute proceedings against a director and that, accordingly, a director "should not be exposed to the risk of such proceedings without being given a fair opportunity by the inspectors to forestall an adverse report".
The most authoritative decision since Testro Bros.Pty.Ltd. v. Tait to consider the application of the rules of natural justice in respect of inquiries, is the Privy Council decision in Mahon v. Air New Zealand Ltd. (1983) 50 ALR 193. That decision establishes that the rules of natural justice apply to the investigative and reporting functions of a Royal Commission (c.f. R. v. Collins; Ex parte A.C.T.U. Solo Enterprises Pty. Ltd. (1975) 8 ALR 691 on the question of review by prerogative writ of the report of a Royal Commission).
I observe that these decisions concern bodies which make a report and findings of fact, whereas I am concerned with a body which makes no such findings. In National Companies and Securities Commission v. News Corporation Ltd. (1984) 52 ALR 417, at p 430, Gibbs C.J. said that the principle in Mahon v. Air New Zealand Ltd. was not applicable in the case of a body which makes no findings or report. Brennan J. agreed with the judgment of the Chief Justice and at p.439 expressly left open for consideration in an appropriate case the question of what the rules of natural justice require in the case of a body which publishes findings, conclusions or evidence after a hearing. The other members of the High Court (Mason, Wilson and Dawson JJ.) did not consider the general question of whether the rules of natural justice apply to a body which makes no finding after a hearing. This question did not arise for decision, since the Commission was required by statute to observe the rules of natural justice.
Authorities since Testro Bros Pty.Ltd. v. Tait suggest that the activities of statutory bodies which do not make decisions directly affecting rights may be subject to the requirements of natural justice. A statutory body whose report does not directly affect rights but which may be acted upon by another body, is not necessarily immune from the rules of natural justice. Barwick C.J. observed in Brettingham-Moore v. St.Leonards Municipality (1969) 121 CLR 509 at p 522:-
"...I would not regard the fact that the report is not self-executing or that the discretion of the Executive is interposed between it and any actual consequence to the person in the situation of the respondent as necessarily preventing the making of the appropriate order at the instance of such a person."
See also Canterbury Building Society Ltd. v. Baker (1979) 2 NSWLR 265 at 275-8 per Sheppard J., where Testro Bros. v. Tait was distinguished.
The fact that certain bodies which do not directly affect rights must accord procedural fairness must be understood in the context of observations, such as that of Lord Diplock in Bushell v. Secretary of State for the Environment (1981) AC 75 at 95, where he said:-
"What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter."
To the extent that Testro Bros.Pty.Ltd. v. Tait establishes that certain investigators are not required to accord natural justice, that holding is not applicable to conciliation proceedings of the kind in this case. The fact that certain investigators are not required to accord natural justice may be justified because the efficient conduct of public affairs requires that these bodies not be unduly burdened or delayed, or because procedural fairness will be accorded at a later stage when the investigator's report comes to be acted upon. These considerations find no place in the present case of a compulsory conciliation body. The conciliation proceeding by its nature is concerned with allowing an individual to know the nature of the complaint made against him and to have an opportunity to place its version of events before an unbiased conciliator. No justification of administrative convenience supplants the duty to act fairly. Further, the conciliation proceeding does not result in a recommendation which must be acted upon by another before it affects an individual, and which permits procedural fairness to be accorded at that later stage. The occurrence of the compulsory conference, and the certification of its occurrence and unsuccessful outcome itself exposes an individual to the legal hazard of civil proceedings.
Unlike certain advisory bodies, the compulsory conference does not culminate in a report or determination that may be acted upon by another, so as to expose a person to a new legal hazard. But this does not mean that the case for according procedural fairness is weaker than in the case of advisory bodies, whose recommendation is a pre-condition to further action. Apart from the Commissioner's certification of its occurrence and result, no official determination is required after the conference before an individual is exposed to the possibility of civil liability.
For these reasons, in my opinion, the person presiding at the compulsory conference is required to accord natural justice or "procedural fairness", despite the fact that the compulsory conference itself makes no finding about whether a person engaged in any conduct, nor does it determine the legality of that conduct.
The compulsory conference is a pre-condition to civil proceedings under Part III of the Act, and if such a conference is vitiated by bias, then a person may be said to be aggrieved in having lost the opportunity to have a dispute resolved without resort to litigation. The respondent submits that the applicant is not thereby exposed to any penalty. The right of the applicant to engage in certain conduct is unaffected by the issuing of the certificate. Further, if the applicant is found by a court not to have engaged in unlawful discrimination, he will be protected by an order for costs. This argument poses the question of whether the decision to issue a certificate after a compulsory conference affects the so-called right to engage in discriminatory conduct.
This submission, in my view, mistakes the right or interest in question. The right in question is the right not to be sued in civil proceedings until a properly conducted compulsory conference has endeavoured to settle a matter.
If the conference in this case is found to be vitiated by bias, then the applicant shall have lost his opportunity to have the complaints conciliated at a compulsory conference and shall be exposed to the hazard of civil liability and costs. In some contexts the law must operate upon the imperfect assumption that a successful party to litigation will recover its costs. However, in this context it is proper, in assessing whether the applicant's interests have been affected, to acknowledge that in defending a civil action, the applicant will be inconvenienced and will incur legal costs which may not be recovered even if he is successful.
I have addressed at considerable length the respondent's submission that the duty to accord natural justice does not apply in the present case because the concilition conference made no decision which affected the applicant's rights. The thrust of that submission is based upon cases involving investigators, whose reports did not affect rights or subject them to a new hazard and, accordingly, were not obliged to accord natural justice. The respondent's submission cannot be rejected simply on the basis that I am concerned with a conciliator rather than an investigator. The cases on investigators and inquiries to some extent help elucidate the relevant principles.
Reference to the Act shows that the compulsory conference is an integral part of the resolution of racial discrimination, such that certification of its occurrence is a pre-condition to civil proceedings. The holding of the conference without resolution of the complaint produces the result that the applicant is subject to the hazard of civil proceedings. In that sense, the holding of the conference bears a close analogy with the report in Brettingham-Moore (supra) which, although not self-executing, was a condition precedent to the power of another to affect legal rights.
Reference should be made to two recent decisions involving conciliators, which were relied upon by counsel for the respondent. The first is R. v. Equal Opportunity Board; Ex parte Burns (1985) VR 317, which concerned the Equal Opportunity Act 1977 (Vict.). Under that Act, the Commissioner for Equal Opportunity once seized of a complaint, was obliged to attempt to negotiate a settlement or conciliate the dispute between the parties. If the dispute was not settled, the Commissioner was obliged to refer the complaint to the Equal Opportunity Board for adjudication. At this hearing the Board was obliged to accord natural justice and was empowered to award damages and to direct a person to refrain from acting further in the manner complained of.
Nathan J. ruled that, in the event of conciliation
failing, and the Commissioner becoming an informant by way of referring the matter to the Board, the Commissioner was obliged to inform the Board of the nature of the complaint with sufficient particularity to allow the person complained against to know the charge which he or she faced. At p.319, Nathan J. observed:-
"In such circumstances the Commissioner, when proceeding under the terms of the Act, bears the character of an informant and her obligations become separate and distinct from those obligations with which she must comply as a conciliator."
Nathan J. was not there concerned to discuss the nature of the Commissioner's obligations as a conciliator, and the passage does not support the respondent's submission that a conciliator need not accord natural justice.
The second case cited by the respondent is the unreported decision of the Equal Opportunity Tribunal given by her Honour, Judge Mathews, on 3 March 1986 in Nos.1, 2 and 4 of 1985. In that case the President of the New South Wales Anti-Discrimination Board referred to the Equal Opportunity Tribunal certain complaints of corporal punishment against male school students. Judge Mathews ruled that, although obliged to investigate a complaint, the President of the Anti-Discrimination Board is not obliged to attempt to conciliate a complaint unless "he is of the opinion that the complaint may be resolved by conciliation". In deciding to refer a complaint to the Tribunal and in forming an opinion as to whether a complaint is capable of resolution by conciliation, Judge Mathews stated that the President's decisions did not have any effect on the respondent's rights.
"The respondent does not thereby suffer any detriment, nor is he or she liable to any penalty or loss of property. They are quite obviously, in my view, decisions which the President is perfectly entitled to make, and no doubt would very frequently make, without recourse to either party."(p.19)
These observations appear in the context of a discussion of the President's investigatory power in which Judge Mathews concluded that:-
"The rules of natural justice, fundamental as they are in many of our administrative tribunals, do not apply to investigations conducted by the Anti-Discrimination Board." (p.17)
In the cases of the particular complaints, no attempt was made at conciliation. Judge Mathews was not concerned with the President's conciliation function. Certain passages in her judgment, in which she distinguishes between the President's investigatory and conciliatory functions may be thought to leave open the question of whether the President is obliged to accord natural justice in conciliation proceedings. However, other passages lend support to the respondent's submission that the duty to accord natural justice applies only to statutory authorities with power, by their decisions, to affect the rights of persons and, accordingly, does not apply to the conciliatory function.
The two decisions therefore leave open the question of the obligation of a person presiding at a conciliation proceeding under anti-discrimination legislation. Nathan J. in Burns was not required to decide the issue. Judge Mathews was concerned with the investigatory, rather than the conciliatory function of the Anti-Discrimination Board. Her ruling that the Board is not obliged to accord conciliation proceedings to a party does not address the obligation of the Board in a case where conciliation is undertaken, or a case such as the present, in which compulsory conciliation is a condition precedent to further proceedings.
Considering the application of the rules of natural justice to conciliatory bodies under anti-discrimination legislation, I have had reference to a decision which was not cited in argument, Selvarajan v. Race Relations Board (1976) 1 All ER 12. That case considered the duty of the Race Relations Board under the Race Relations Act 1968 (U.K.). That legislation differs in some respects from the Act with which I am concerned. However, the observations of the Court of Appeal provide some assistance. Under the 1968 Act, complaints of racial discrimination were referred to a conciliation committee of the Board, which was under a duty to investigate. In investigating a complaint, the Board was required to make certain inquiries and to form an opinion whether any person had done any unlawful act. If the conciliation committee formed an opinion that an unlawful act had been done, civil proceedings may have been brought. If they formed an opinion that no unlawful act had been done, the complainant was left without a remedy.
As under the Act with which I am concerned, it was the duty of the conciliation committee to use their best endeavours to secure a settlement of any complainant. If the committee failed to secure a settlement, it was required to make a report to that effect to the Race Relations Board.
I need not refer to the particular facts of Selvarajan, suffice to say that a conciliation committee investigated and attempted to settle a complaint made by a lecturer employed by the Inner London Education Authority. The conciliation committee was of the opinion that unlawful discrimination had occurred and made a report that it had failed to secure a settlement. The Race Relations Board thereupon caused its employment committee to reinvestigate the complaint and, after some delay, came to the conclusion that no unlawful discrimination had occurred. The complainant sought prerogative relief to quash that decision.
For present purposes it is important to observe that, before the Court of Appeal, the Race Relations Board argued that in investigating complaints of discrimination, it was not under a duty to act judicially and/or fairly. The Court of Appeal rejected the submission. Lord Denning M.R., at p.19 followed earlier decisions in ruling that:-
"...the investigating body is under a duty to act fairly; but that which fairness requires depends upon the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it."
These principles were said to apply both to the employment committee of the Board and the conciliation committee.
Lawton L.J. also ruled that the Race Relations Board was under a duty to act fairly. At p.21, he outlined the various functions of the Race Relations Board, including its function to form an opinion whether there had been any unlawful discrimination. This function may be thought to distinguish the Race Relations Board from the respondent in this case. However, his Lordship observed:-
"Forming an opinion that there has been no discrimination, as the Board did in this case, is not a definitive determination of an issue: it is a preliminary to a decision whether the proceeding should be initiated."
This remark suggests that in terms of its legal consequences, the forming of an opinion whether there had been unlawful discrimination stands in the same category as the function of the committee to report that conciliation was unsuccessful. Neither finally determines rights, but both are a pre-condition to further proceedings. In this sense, the opinion-forming function of the Race Relations Board does not distinguish it from the respondent in the present case, who is under no duty to form such an opinion. What is important in both cases is that the investigatory and conciliatory functions are a pre-condition to further civil proceedings.
As Scarman L.J. observed at p.24, of the Race Relations Board:-
"The board is an administrative agency charged with a number of critically important functions in the administration of the law; but it is not a judicial institution - nor is it the apex of a heirarchy of judicial institutions. The procedures are not adversarial but conciliatory; settlement, not litigation, is the business of the Board, and it is left to the board to decide how best to perform the functions which the Act requires it to perform, namely, investigation, the formation of an opinion, conciliation, and, if all else fails, the taking of legal proceedings in the county court. ...
The board is, of course, subject to the supervisory powers of the High Court. If it fails to perform a statutory function, mandamus will lie. If it fails to act fairly, the High Court can intervene by certiorari, prohibition or mandamus to ensure that it does."
The judgments of Lawton and Scarman L.JJ. in Selvarajan indicate that superior courts should be slow to interfere with the functions of an anti-discrimination authority on the basis that it has acted unfairly. However, the case establishes that such a body is required to act fairly. Importantly, that holding was based not upon the fact that the Race Relations Board in that case made determinations on the rights of the parties investigated, but because its opinion that there had been unlawful discrimination was a pre-condition to the institution of civil proceedings. In the case with which I am concerned, the respondent forms no opinion that unlawful discrimination has occurred. However, the holding of a compulsory conference to endeavour to settle a complaint is a pre-condition to the applicant's being exposed to civil proceedings. In these circumstances, I am persuaded that the person presiding at the compulsory conference likewise is obliged to act fairly.
The requirement to "act fairly" should not be taken to import some duty less than the duty to accord natural justice: see Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Mason J. at 347, per Wilson J. at 359, per Deane J. at 381. de Smith's Review of Administrative Action, 4th ed. (1980), p.239 notes of the emergence of the phrase "duty to act fairly":-
"Its value has lain in assisting the extension of implied procedural obligations to the discharge of functions that are not analytically judicial, and in emphasising that acting in accordance with natural justice does not mean forcing administrative procedures into a straitjacket."
Finally, on whether conciliators under anti-discrimination legislation have a duty to act fairly, I have referred to cases about the conciliation and arbitration of industrial disputes. It is clear that the Conciliation and Arbitration Commission, in its arbitral function, is required to accord natural justice: R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 522; R. v. Moore; Ex parte Victoria (1977) 140 CLR 92 at 101-2; Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417 at 421, 428; Re Alley; Ex parte The Australian Building Construction Employees' and Builders Labourers' Federation (1985) 60 ALJR 181. Wilson J. observed in Re Baird and Australian Theatrical and Amusement Employees Association; Ex parte Aitco Pty.Ltd. (1986) 62 ALR 244 at 245:-
"It must be recognized that the jurisdiction is one which tends to bring the presiding Commissioner and the parties into a closer, more informal, relationship than that which exists in ordinary judicial proceedings. There may be nothing wrong with a Commissioner advising a party in relation to matters of procedure with a view to facilitating the operation of the Act and regulations, bearing in mind what I have said about the importance of a judicial approach to a finding under s.24(1). But ordinarily that should only be done when both the parties are present and it is of fundamental importance that, as in any tribunal whose proceedings are conducted according to law, proceedings in the Commission be conducted properly and in accordance with the Act and regulations, and that at all times a Commissioner should strive to behave with complete impartiality and objectivity and give no cause for any reasonable apprehension to the contrary."
These cases, however, are not of direct assistance on the question of whether in its conciliatory function, there is the requirement of natural justice.
The third and final issue for determination is whether a breach of the rules of natural justice occurred in this case, in that the person appointed by the respondent to preside over the conference demonstrated bias.
A person charged with the duty of endeavouring to effect a settlement between persons, particularly settlements of disputes involving allegations of racial discrimination, having the capacity of being very emotionally charged and bitter, is placed in a difficult position. Nonetheless, that very circumstance requires the most scrupulous even-handedness in the discharge of that role. The confidence of the disputing parties in the person charged by statute to preside at the attempted resolution of their conflict, cannot long survive if it can be reasonably apprehended that the person presiding is partisan and has so prejudged the matter that people might genuinely feel that they have not had, in the venacular, "a fair go".
The issue is whether the statements admittedly made by Mrs. Scott, namely, "My daughters were refused entry", in the context of a discussion as to whether there was a total ban and a denial of the existence of that total ban, would lead a reasonably minded person to conclude that Mrs. Scott was of the opinion that there had been in fact a general ban, corroborated and exemplified by her own daughters' experience, and that the applicant's denials of any such general ban were untrue.
I accept that s.22 does not exclude the right of a person presiding at the conference to bring her own knowledge and experience to bear in the discharge of her statutory duty: (see Minister for Health v. Thomson (1985) 60 ALR 701). However, in my opinion, the statements by Mrs. Scott in their context go much further, and would lead to a reasonable apprehension that she was, in the correct sense of the word, biased. The policy of the respondent to involve in the conciliation process respected members of the community who are familiar with local conditions and with the nature of racial discrimination is a commendable one. However, it is a policy which carries a risk that, on some occasions, the person presiding will actively enter the controversy between the parties, rather than conciliate it. In such a case the parties or the public might reasonably suspect that the person presiding was not unprejudiced and impartial. Unfortunately, this is such a case.
In my opinion the conference convened in an attempt to resolve the allegations of racial discrimination gives to the person against whom such an allegation is made, the entitlement to have the attempt at resolution of the dispute presided over by an impartial conciliator. That right was denied to the applicant and, as a consequence, it can not truly be said that a conference was held which endeavoured to settle the matter. The purport of the conference was a nullity. In my opinion the Court should declare that the certificates given by the respondent on 24 February, 1984 are of no effect.
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