L v H.R.E.O.C.
[2006] FMCA 1291
•30 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L v H.R.E.O.C. & ANOR | [2006] FMCA 1291 |
| ADMINISTRATIVE LAW – Judicial review of decisions of the Human Rights and Equal Opportunity Commission – refusal to accept complaint – acceptance and separation of part of complaint – termination of complaint on the basis that the alleged discrimination occurred more than 12 months previously – whether the termination procedurally unfair, unreasonable or overlooked relevant considerations considered. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Disability Discrimination Act 1992 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PH Sex Discrimination Act 1984 (Cth) |
Field v Human Rights and Equal Opportunity Commission [1999] FCA 1711
L v Human Rights and Equal Opportunity Commission & Anor [2006] FCAFC 114
| Applicant: | L |
| First Respondent: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG288 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 1 September 2006 |
| Date of Last Submission: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the First Respondent: | Ms J Hemingway Human Rights and Equal Opportunity Commission |
| Solicitors for the Second Respondent: | Ms D Watson Australian Government Solicitor |
ORDERS
The decision made by HREOC on 9 January 2004 to refuse to inquire into the applicant’s complaints against the Refugee Review Tribunal, the Commonwealth Rehabilitation Service and officers is set aside, and those complaints are remitted to HREOC for investigation according to law.
The application is otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG288 of 2004
| L |
Applicant
And
| HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) seeking review of two decisions of the Human Rights and Equal Opportunity Commission (“HREOC”) made on 9 and 19 January 2004. The first respondent (HREOC) filed a submitting appearance on 2 March 2004. The second respondent (the Commonwealth of Australia) was joined by my order made on 1 August 2006 in order to provide the opportunity for any Commonwealth agency with an interest in the application to respond to it. On 25 August 2006 the Commonwealth filed a response that the application, insofar as it seeks relief in relation to the HREOC decision made on 19 January 2004 should be dismissed with costs.
On 24 August 2006 HREOC wrote to the applicant and the Court to advise that it would concede that part of the application relating to its decision made on 9 January 2004 to refuse to accept complaints in relation to the Refugee Review Tribunal, CRS Australia and others as complaints under s.46P of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). That correspondence also states that HREOC makes no concession in relation to the applicant’s complaint in relation to the SSAT or other orders sought by her.
The decision of 9 January 2004 was a decision taken by the delegate of the President of HREOC that correspondence to HREOC from the applicant dated 24 December 2003, 6 January 2004 and 7 January 2004 by which the applicant requested that HREOC investigate complaints against the Refugee Review Tribunal, and various members and employees of that Tribunal, the Commonwealth Rehabilitation Service and members of its staff, various legal and medical practitioners, Doyle and Spillane Real Estate and the Legal Practitioners Admission Board, would not be the subject of any further action taken by HREOC.
The decision of 19 January 2004 was a decision taken by the delegate to terminate the applicant’s complaint against the Social Security Appeals Tribunal, Annette O’Neill, Stephen Hodges, Amanda McDonald and others from that tribunal, in which the applicant alleged that she had been sexually harassed, discriminated against on the basis of her marital status (single) and victimised under the terms of the Sex Discrimination Act 1984 (Cth) (“the SDA”). The decision to terminate also covered the applicant’s complaint against that organisation and those persons that she had been discriminated against by having a psychiatric condition imputed to her under the terms of the Disability Discrimination Act 1992 (Cth) (“the DDA”).
The proceedings before the Federal Magistrates Court were originally commenced by the applicant pursuant to the ADJR Act on 5 February 2004, seeking relief in the following terms:
INTERIM ORDERS SOUGHT BY THE APPLICANT
1.The applicant seeks an order under s.16(1)(c) and s.16(2)(a) declaring the applicant to be a person who does not have a psychiatric disorder or disability and a person who has never been diagnosed with a psychiatric disorder or disability, and that her rights are to be respected accordingly.
2.The applicant seeks an order under s.16(1)(d) and s.16(2)(b) restraining any of the respondents to the complaint before the Human Rights and Equal Opportunity Commission and any NSW state based agency or individual from acting in relation to the applicant on the (mistaken) premise that the applicant has a psychiatric disorder or disability, and restraining the administration of treatment including that begun on 4 April 2003, and taking the necessary steps to cease immediately all treatment including that begun on 4 April 2003.
FINAL ORDERS SOUGHT BY APPLICANT
1.The applicant seeks an order under s.16(1)(a) quashing the decisions of the Human Rights and Equal Opportunity Commission of 9 January 2004 and 19 January 2004 to refuse to inquire into the practice of victimization and unlawful discrimination by employees and former employees of the Social Security Appeals Tribunal, Annette O’Neill, Stephen Hodges, Amanda MacDonald, Lyn Rogers, Angela Beckett; Mark Darras; the Commonwealth Rehabilitation Service; Bev Smith; Anne Brimson; Louise Perrottet; Centrelink; Andrea Taylor; the Refugee Review Tribunal, Jill Toohey, Sue McIlhatton, Paula Cristoffanini, Sue Zelinka, Dr Nygh; Andrea Howard, Lucinda Howe, Fiona Stiff; Margaret Freeman; Macarthur Legal Centre, Wyong Legal Centre and others.
2.The applicant seeks an order under s.16(1)(b) referring the matters back to the Human Rights and Equal Opportunity Commission for further consideration.
3.The applicant seeks an order under s16(1)(c) and s.16(2)(a) declaring the applicant to be a person who does not have a psychiatric disorder or disability and a person who has never been diagnosed with a psychiatric disorder or disability, and that her rights are to be respected accordingly.
4.The applicant seeks an order under s.16(1)(d) and s.16(2)(b) restraining any of the respondents to the complaint before the Human Rights and Equal Opportunity Commission and any NSW state based agency or individual from acting in relation to the applicant on the (mistaken) premise that the applicant has a psychiatric disorder or disability, and restraining the administration of treatment including that begun on 4 April 2003, and taking the necessary steps to cease immediately all treatment including that begun on 4 April 2003.
The proceedings were interrupted between 29 April 2004 and 12 July 2006 by interlocutory orders made by me on 29 April 2004. The effect of those orders was to stay proceedings until the applicant either obtained a litigation guardian or a psychiatric opinion that she did not need one. On 12 July 2006 the Federal Court ordered that orders 4, 6 and 7 made by me on 29 April 2004 which had that effect be set aside[1]. The proceedings then continued on the basis that the applicant was competent to conduct them.
[1] L v Human Rights and Equal Opportunity Commission & Anor [2006] FCAFC 114
The applicant now relies upon an amended application filed in court by leave on 1 August 2006. This application identifies the following decisions as being subject to review:
Application to review the decision of the first respondent dated 9 January 2004 to refuse to inquire into and attempt to conciliate the complaints made against the Refugee Review Tribunal, CRS Australia and other respondents, lodged with the Human Rights and Equal Opportunity Commission on 16 September 2003, under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
Application to review the decision of the first respondent dated 9 January 2004 to deal with the complaint against the Social Security Appeals Tribunal separately from those concerning other Commonwealth employers and agencies, under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
Application to review the decision of the first respondent dated 19 January 2004 to issue a Notice of Termination under s.46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) in relation to the Social Security Appeals Tribunal.
In relation to the decision to terminate the complaint against the SSAT and employees within that organisation (the 19 January 2004 decision), the applicant alleges the following grounds:
1.Improper exercise of power, in that the exercise of power was so unreasonable that no reasonable person could have so exercised the power.
2.In exercising the power, the decision maker failed to take into account relevant considerations.
3.There was a breach of the rules of natural justice.
The particulars provided in support of these grounds are set out in the amended application at pages 9 to 12:
1.The claims in the complaints against the SSAT are so relevant to the subject matter of the complaints against other employers, CRS, the Secretary of DFaCSIA and the State of NSW (the Director-General of the NSW Department of Health, and the Minister for Ageing, Disability and Home Care) that it is unreasonable for HREOC to separate them. HREOC is behaving unreasonably by causing multiple court proceedings to take place with the attendant risk of inconsistent decisions. The Commonwealth is liable under common law and statute for the conduct of all Commonwealth employees and agencies, and is the same defendant in all the multiple proceedings that could result from HREOC treating the SSAT separately from other agencies. There are common issues of fact and law in relation to all of the Commonwealth agencies, as well as DDLC, Millward Brown, Macarthur Legal Centre, Wyong Legal Centre and the two NSW state organisations. This is particularly relevant where a DSA programme, alleged to be unlawfully discriminatory, has been implemented, affecting several different employers. The HREOC is unreasonable in the Wednesbury sense because it is behaving in a way that is prejudicial to the applicant’s legal rights, and is causing undue expense and delay, and is impeding the proper administration of justice.
The Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41.
Henderson v Henderson [1843] 67 ER 313.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
2.(i) A relevant consideration which the HREOC failed to take into account is that the applicant does not in fact have a mental illness, disability, impairment or incapacity. This is particularly relevant to the application of the DDA, but it also affects the application of the SDA. Under the DDA, the party which alleges the existence of a disability bears the onus of proving that a disability exists. Neither the SSAT nor the HREOC has produced a medico legal report diagnosing a mental illness or disability. Yet HREOC’s conduct in separating the SSAT complaint involved it imputing to the applicant a disability.
(ii)The applicant did not know, during her SSAT employment, that she was being imputed with a disability.
(iii)The applicant’s complaint (first lodged on 27 August 2003 in the Anti-Discrimination Board of NSW and then transferred to the HREOC) is within 12 months of Stephen Hodges ringing the applicant on 13 September 2002 pretending to be John Forster, and was within 12 months of the treatment that commenced on 4 April 2003, and this was also the subject of complaint to HREOC.
(iv)Annette O’Neill, Stephen Hodges, and various witnesses, were not contacted by HREOC. It is relevant to note that Annette O’Neill, Stephen Hodges, and others, reside in Sydney, and there are no obstacles in the HREOC simply contacting them in the normal manner.
The Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41.
Minns v The State of NSW [2002] FMCA 60
Rana v Flinders University of SA [2005] FMCA 1473
3.The applicant was given no opportunity to be heard in relation to this complaint, and the aspects upon which HREOC made its decision. Russell Matthews made vague, unspecific claims about the applicant allegedly misinterpreting comments. In fact, the applicant has never misinterpreted comments. No examples of this occurring were given by Russell Matthews. This should have been the subject of clarification, and of very specific examples being asked for by HREOC, and communicated to the applicant. The HREOC did not discuss with the applicant the issue of her 1995 complaint in relation to Stephen Hodges, and who to contact to establish further information in relation to this complaint. The HREOC did not talk to the applicant about the absence of any paperwork in relation to the complaint, and who Russell Matthews, and the HREOC, should be contacting (Annette O’Neill and others). The HREOC did not talk to the applicant, and state, for example, that it did not have contact details for Annette O’Neill and others. The SSAT was, in its response of 23 December 2003, imputing to the applicant a paranoid personality disorder but provided no medical evidence to support the allegation, and no medico-legal report. This should have been the subject of discussions with the applicant, so her case could be heard.
Kioa v West (1985) 159 CLR 550
The applicant seeks the following orders:
1.Dr Moore’s report of 12 November 2001 is inadmissible under s.79 of the Evidence Act 1995 (Cth).
2.The decision of HREOC dated 19 January 2004 to terminate the complaint against the SSAT is set aside. The HREOC is to revoke the Notice of Termination dated 19 January 2004 under s.46PH() of the HREOC Act.
3.The decision of 9 January 2004 of HREOC refusing to inquire into complaints against the RRT, CRS Australia and others is set aside, and the matter is remitted to the first respondent to be dealt with in accordance with s.46PD of the HREOC Act, along with the SSAT complaint.
4.In inquiring into and attempting to conciliate the complaints against all the Commonwealth employers, CRS Australia, the Secretary of the DFaCSIA, the Disability Discrimination Legal Centre, Millward Brown, Macarthur Legal Centre, Wyong Legal Centre, and the two NSW organisations (the Director-General of the NSW Department of Health, and the Minister for Ageing, Disability and Home Care), any Notice of Termination issued in relation to one must include all the other agencies.
5.The complaints involving allegations of unlawful discrimination in the provision of goods and services, accommodation, education and related matters are to be inquired into in conjunction with the Secretary of DFaCSIA, CRS Australia, the Director-General of the NSW Department of Health, and the Minister for Ageing, Disability and Home Care. A notice of termination in relation to one provider of goods or services, accommodation or education must include all other respondents.
6.There is no order as to costs.
The effect of the concession made by HREOC is that order 3 is conceded, subject to the deletion of the words “along with the SSAT complaint”.
In relation to order 1 I ruled that the medical report of Dr Moore was not admissible under s.79 of the Evidence Act 1995 (Cth) although I would receive it on the more limited basis sought by the Commonwealth, simply as evidence of a document that was before HREOC at the time the decisions under review were made.
The evidence
The applicant relies upon each and every affidavit she has filed during the course of these proceedings. Those affidavits comprise:
a)an affidavit filed on 5 February 2004;
b)an affidavit filed on 12 February 2004;
c)an affidavit filed on 1 March 2004;
d)an affidavit filed on 22 March 2004;
e)two affidavits filed on 24 March 2004;
f)two affidavits filed on 2 April 2004;
g)two affidavits filed on 5 April 2004;
h)two affidavits filed on 6 April 2004;
i)two affidavits filed on 13 April 2004;
j)two affidavits filed on 15 April 2004;
k)two affidavits filed on 21 April 2004;
l)two affidavits filed on 23 April 2004;
m)an affidavit filed on 25 July 2006;
n)an affidavit filed on 27 July 2006;
o)an affidavit filed on 4 August 2006; and
p)an affidavit filed on 29 August 2006.
The last affidavit was relevant only to a complaint made by the applicant against a solicitor for the Commonwealth which I dealt with during the course of the hearing on 1 September 2006. I found no substance in the complaint.
The Commonwealth relies upon the affidavit of John Joseph Armstrong filed on 21 April 2004, together with four volumes of exhibits to that affidavit. Neither the applicant nor Mr Armstrong were required for cross-examination. Both the applicant and Mr Armstrong depose as to the complaints made to HREOC by the applicant and the manner in which they were dealt with. Those facts are conveniently summarised in the Commonwealth’s written submissions. Relevantly, the applicant forwarded a letter and other material to HREOC dated 16 September 2003 (ex JJA-3 to the Armstrong affidavit). The letter and material related to matters arising from the applicant’s employment with the SSAT as well as a range of other matters. HREOC wrote to the applicant on 17 September 2003 (ex JJA-9 to the Armstrong affidavit) requesting the applicant to document her allegations separately so as to allow a proper assessment of the matters raised and to indicate how the organisations and individuals were claimed to unlawfully discriminate against her. She was further advised that if complaints were being made about matters which occurred more than 12 months ago, submissions should be provided as to why HREOC should accept those allegations out of time.
In response to this letter, the applicant forwarded further correspondence over several days, which is contained in ex JJA- 4 to the Armstrong affidavit. This correspondence also related to a number of complaints, including complaints against the SSAT and colleagues of the applicant during her employment at that tribunal, together with complaints relating to other workplaces, as well as other complaints against individuals and organisations not related to employment.
Further correspondence was received from the applicant by HREOC over a number of days in November 2003. This correspondence is contained in JJA-5 to the Armstrong affidavit. The complaints lodged during this period were separated as between individuals and organisations, although there was a degree of overlap in relation to the matters raised by the applicant. Although references are made to incidents which the applicant alleged occurred during her employment at the SSAT, no such complaint against that tribunal or any of her former colleagues from that tribunal was contained in this material. The same can be said for the material contained in JJA – 6 which was material also received in November by HREOC from the applicant.
During November and early December, correspondence relating to individuals who worked at the SSAT and the SSAT were lodged by the applicant with HREOC. This correspondence is contained in JJA- 8 to the Armstrong affidavit.
On 24 November 2003, HREOC wrote to the Director of the SSAT, forwarding correspondence received by the applicant setting out the complaints made against the SSAT and former colleagues from that tribunal and inviting the SSAT to respond to a number of matters set out in that letter. This letter is contained in JJA-11 to the Armstrong affidavit.
On the same day, HREOC wrote to the applicant advising her that her complaint against the SSAT has been accepted as a complaint under the Human Rights and Equal Opportunity Commission Act 1986. A copy of this letter is at JJA-12 to the Armstrong affidavit.
The SSAT response to HREOC dated 23 December 2003 is at JJA-15 to the Armstrong affidavit. In particular, the SSAT made submissions addressing the issue raised by HREOC that the complaint had been lodged more than 12 months after the actions complained of (see p. 1239).
The decision of the delegate of the President of HREOC is at JJA-17 of the Armstrong affidavit. The delegate advised that she had decided to exercise her discretion, available under s. 46PH(1)(b) of the HREOC Act not to investigate the complaint as it was made more than 12 months after the alleged unlawful discrimination took place.
The delegate set out a number of factors which she considered would be relevant to the exercise of that discretion and provided reasons for so doing.
The legislation
Section 46PH of the HREOC Act states:
(1)The President may terminate a complaint on any of the following grounds:
(a)the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination;
(b)the complaint was lodged more than 12 months after the alleged unlawful discrimination took place;
(c)the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance;
(d)in a case where some other remedy has been sought in relation to the subject matter of the complaint–the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(e)the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;
(f)in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority–the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(g)the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;
(h)the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court;
(i)the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.
(2)If the President decides to terminate a complaint, the President must notify the complainants in writing of that decision and of the reasons for that decision.
(3)On request by an affected person who is not a complainant, the President must give the affected person a copy of the notice that was given to the complainants under subsection (2).
(4)The President may revoke the termination of a complaint, but not after an application is made to the Federal Court or the Federal Magistrates Court under section 46PO in relation to the complaint.
Submissions
Both the applicant and the Commonwealth presented both written and oral submissions. The applicant submits that she provided, at HREOC’s request, all details that it needed in order to deal with her complaints but that HREOC ignored all of her complaints, except those made against the SSAT. She submits that she was “probably” subject of a “programme” under the Disability Services Act 1986 (Cth) (“the DSA”). She submits that this programme was a common thread linking the various component parts of her complaint, at least to the extent that it related to complaints of discrimination in the course of employment.
The applicant submits that the decision made on 9 January 2004 was unreasonable in the Wednesbury sense because it was not her fault that she delayed bringing her complaint in respect of events occurring more than 12 months previously. She asserts that, prior to making her complaint, she did not know that she might be subject to a DSA programme. The applicant also submits that it was unreasonable to refuse to inquire into her complaints because she was seeking to deal with medical treatment, among other things, about which she had absolutely no information. What was required, in the applicant’s submission, was a proper investigation of her complaint so that the relevant information could be obtained. The applicant had also asserted victimisation under the SDA which she submits properly required investigation.
The applicant also submits that HREOC failed to take into account a consideration which it was bound to take into account, namely that in fact she had no disability. Her complaint was that she was discriminated against by being imputed with a disability she did not have (in particular schizophrenia). The applicant also asserts procedural unfairness in not having the opportunity to comment upon the responses received by HREOC to the complaint. Further, the applicant asserts that the decision of 9 January 2004 to separate the complaints was unreasonable in the Wednesbury sense because it would lead to undue delay, multiple proceedings, and years of litigation, all on essentially the same issue. She asserts unreasonableness in relation to the decision on 19 January 2004 for the same reason.
The applicant’s submissions also deal with the conduct of particular individuals.
Ms Watson, who appeared for the Commonwealth, relevantly submits as follows:
Section 46PH(1)(b) contains a wide discretion which is enlivened if the complaint is lodged more than 12 months after the alleged unlawful discrimination occurred. There are no matters which the section requires are mandated to be taken into account. It is submitted that the matters set out by the delegate in her decision are not irrelevant to the issue to be considered by her and that there is no basis for arguing that she has miscarried in the exercise of her discretion, such that this Court has the power to set aside her decision.
In relation to ground 1 of the amended application, the applicant alleges that the complaints relating to the SSAT are so relevant to the subject matter of the other complaints which were the subject of the 9 January 2004 decision, that it was unreasonable for HREOC to separate the complaints. It is asserted that there are common issues of fact and law in relation to all of the complaints. Reference is made to an alleged “DSA programme” which, it is asserted, has been implemented, affecting several different employers. The second respondent submits that there is nothing unreasonable in the approach that HREOC took in relation to the complaints made against the SSAT and employees of that tribunal. The fact that the applicant has asserted in her complaints that events which occurred at that tribunal are affecting other aspects of her life after leaving that tribunal does not, of itself, compel HREOC to a course whereby all complaints made by the applicant must be dealt with in a consolidated manner.
Section 46PF(2) allows for a single inquiry into multiple complaints. …
However, there is nothing in the Act to support an interpretation which compels the President to adopt that course where there are multiple complaints. The President, or his delegate in this case, has chosen to deal with the complaint relating to the SSAT and its employees separately from the other matters raised by the applicant. The complaints in relation to that tribunal essentially arose by virtue of the applicant’s employment with that organisation and, it is submitted, there is nothing unreasonable in HREOC approaching its enquiry function in the way that occurred in this case.
In relation to ground 2, the particulars are set out at pages 10-11 of the amended application. The applicant claims that HREOC failed to take into account that the applicant does not have a mental illness and that HREOC’s conduct in separating the SSAT complaint involved it imputing the applicant with a disability. The second respondent submits that there is nothing in any of the correspondence exhibited before the Court to support such a contention.
The applicant further asserts that HREOC failed to take into account her allegation that a phone call made to her on 13 September 2002 by a person claiming to be John Foster was, in fact, made by Stephen Hodges. In investigating the applicant’s complaint against the SSAT, it is clear from the terms of the letter sent to the SSAT from HREOC that it was investigating the allegations made by the applicant that she suffered unlawful discrimination and victimisation during her employment at that tribunal between 1992 and 1997. There is no reason why a complaint made that an employee of that tribunal made contact with her several years after her employment ceased necessarily must fall within the scope of that investigation. There was no error in HREOC considering the applicant’s complaints arising from her employment with the SSAT as a separate issue to any subsequent complaint which involved a person against whom a complaint had been made for actions which occurred while she was employed at that tribunal.
The applicant also claims that HREOC failed to consider or take into account her claim that she was being subjected to medical treatment on 4 April 2003. However, the link between that claim and her claims of unlawful discrimination and victimisation when employed by the SSAT, which concluded in 1997, is not apparent and there is no error in HREOC considering that the complaint which it was dealing with, being a complaint against the SSAT, had been lodged more than 12 months after the action complained of.
There was no positive obligation on HREOC to contact the witnesses identified by the applicant. A response was sought from the employing agency which advised HREOC that Ms O’Neill and Mr Hodges no longer worked at the SSAT. Submissions were made by the SSAT concerning the issue of delay. The delegate of the President determined in the circumstances that the delay in this case was such as to exercise her discretion to terminate the inquiry.
In relation to ground 3, the applicant was advised as early as 17 September 2003 that if any of the matters complained of occurred more than 12 months ago she should provide submissions as to why the Commission should accept the allegations out of time (see ex JJA-9 to Armstrong affidavit). HREOC considered the matters put forward by the applicant in her letter of 11 November 2003 (ex JJA-8 p. 991-998 to Armstrong affidavit) and also the matters advanced by Mr Matthews on behalf of the SSAT. The reasons set out in ex JJA-17 to the Armstrong affidavit do not disclose that the delegate has erred in concluding to terminate the inquiry, nor can it be said that the applicant was not afforded the opportunity to address HREOC in relation to the issue as to whether HREOC should investigate complaints about alleged actions which occurred more than 12 months ago.
The Commonwealth’s submissions were filed late and I gave the applicant the opportunity to file additional written submissions in reply by 8 September 2006. In those additional written submissions filed on 7 September 2006 the applicant relevantly submits that:
a)her complaint of 16 September 2005 identified two matters at least being incidents that had allegedly occurred within 12 months of the complaint;
b)at the time she did not know who all the necessary respondents to the complaint should be as she has only since then formed the view that she was the subject of a DSA programme;
c)a lawful dealing with the complaint required HREOC to talk to her about it and to commence an investigation, which would have ensured that anything requiring clarification could have been identified;
d)she rejects the contention that HREOC had difficulty understanding what her complaints were about and asserts that that view discloses the imputation of a disability itself;
e)her ability to formulate her complaint was inhibited as she did not understand that she had been imputed with a mental disability and in that regard she asserts that she was misled;
f)she had attempted in her 2003 complaints to identify the common thread within them of an imputed disability commencing with the SSAT and “infecting” all subsequent employers;
g)she has in fact never had a disability or an impairment or an incapacity and any disability programme in relation to her at any time in her life would have been unlawful;
h)she has also been the victim of victimisation from 1995 onwards and there are no “stale” complaints;
i)there is nothing preventing HREOC from revoking its 19 January 2004 Notice of Termination in relation to the SSAT;
j)although she has made other complaints in 2006 which also raised the issue of unlawful discrimination through imputing to her a disability which she does not have, the “core” or primary complaint raised on 16 September 2003 is different;
k)other complaints and litigation she has instituted concern unlawful discrimination by Centrelink and the Secretary of the Department of Employment and Workplace Relations and Federal Court employees;
l)those are discrete matters that can properly be dealt with separately;
m)it cannot be said that the 16 September 2003 complaint and follow up correspondence has become the subject of a later complaint that is being dealt with;
n)a substantial aspect of the 2003 complaints is her non reappointment to the SSAT and assertions of serious misconduct by nominated individuals. Those complaints also include a complaint of constructive dismissal from the RRT;
o)the employers against whom the 16 September 2003 complaint is made have been involved in a DSA programme spanning several workplaces;
p)there is no “rational or sensible” reason to separate the SSAT complaint from the complaint in respect of the other employers; and
q)
she has no intention of seeking further employment at the SSAT or the MRT or the RRT or of using her legal qualifications.
This is said to be because of the impact upon her of asserted unlawful discrimination.
The applicant also made submissions about her personal life and her hopes for the future and seeks to clarify some remarks that she made in court on 1 September 2006 about particular individuals.
Reasoning
In view of the concession made by HREOC it is unnecessary to deal in any detail with the challenge to the decision made on 9 January 2004 to refuse to accept the applicant’s complaints, except insofar as they related to the SSAT. Error in relation to that decision is conceded by HREOC and relief is not opposed by the Commonwealth. The relief sought by the applicant in relation to that decision should be granted, although I have chosen to express the order sought somewhat differently.
The remaining dispute between the applicant and the Commonwealth relates to the decision made on 9 January 2004 to deal separately with the complaint in relation to the SSAT and the resulting decision on
19 January 2004 to terminate the complaint pursuant to s.46PH(1)(b) as the complaint was lodged more than 12 months after the alleged unlawful discrimination took place. The separation of the complaint against the SSAT from the balance of the complaints which were rejected on 9 January 2004 was an inevitable consequence of that rejection. On one view, where error is conceded in the rejection of the balance of the complaints, there would be error in the separation of the complaint against the SSAT if the complaints should have been considered as a single complaint. Further, if the complaints should have been considered as a single complaint, there may well be error in the termination of the complaint against the SSAT on the basis that the relevant events occurred more than 12 months before the complaint was made, if considerations relevant to the complaint against the SSAT were overlooked in the complaints which had earlier been rejected. These possibilities require closer analysis.
The Court’s role in reviewing the HREOC decision is limited.
The Court cannot review the merits of that decision, merely its legality: Field v Human Rights and Equal Opportunity Commission [1999] FCA 1711 at [63]-[65]. In order to succeed, the applicant must establish reviewable error pursuant to s.5 of the ADJR Act.
The applicant’s complaints to HREOC commenced with her letter to the President dated 16 September 2003. That letter made clear at the outset that it was a complaint of unlawful discrimination on the grounds of sexual harassment, victimisation and being imputed with a psychiatric condition/s which the applicant said she had never had, resulting in discrimination in employment and in the provision of goods and services contrary to the SDA and the DDA. The letter also made clear, at the outset, that the complaint related to both the applicant’s then current circumstances and to a history of unlawful discrimination, commencing at the SSAT in 1995 and continuing up to the date of the letter. The letter set out in great detail the particular events over the period between 1995 and 2003 which concerned the applicant. The letter comprised 46 pages and, with its annexures, comprised over 160 pages. Nevertheless, the complaint was an intelligible complaint of sexual harassment, victimisation and sex and disability discrimination in relation to imputed psychiatric condition/s, which the applicant denied having, in relation to employment and in relation to the provision of goods and services. The complaint in relation to the SSAT was a part of the totality of the complaints but was merely the first element of them. Important complaints were also made against the RRT, named individuals with whom the applicant had worked at various times and named service providers.
The HREOC response to the applicant dated 17 September 2003 summarised the applicant’s complaints in dot point format. HREOC was concerned about the large number of allegations against numerous organisations or persons over a long period of time. The letter stated that it was “very difficult for the Commission to take any action on these matters at this stage”. The letter also noted uncertainty whether the applicant was seeking to revisit a complaint the applicant had made in 2001 against the RRT and Dr Peter Nygh. The letter continued:
Before I can properly assess and consider your matters I require you to document your allegations separately on separate sheets of paper as they relate to each individual organisation and/or persons in that organisation. You then need to outline how that organisation and/or those individuals have unlawfully discriminated against you. That is detail the specific acts you claim constitute unlawful discrimination. You also need to provide specific dates as to when these alleged acts occurred. If any of the matters have occurred over 12 months ago you should provide submissions as to why the Commission should accept the allegations out of time. Also if any matter of alleged unlawful discrimination has been previously dealt with by this or any other statutory organisation you should provide submissions as to why the Commission should inquire into those allegations. (emphasis added)
The letter concluded that a response was required by Wednesday, 1 October 2003, in default of which the HREOC file would be closed.
While the applicant’s letter of complaint was extremely lengthy and discursive it was intelligible. The salient points could be identified in it. It was reasonable to require clarification from the applicant about whether she was seeking to revisit her complaint against the RRT and Dr Nygh made in 2001, but, in my view, it was excessively formal to expect the applicant to document her allegations separately on separate sheets of paper as they related to individual organisations and/or persons in each organisation. It was also, in my view, unfair to expect the applicant to comply with the HREOC request in two weeks.
The applicant did not immediately do as she was asked. Her letter to HREOC dated 1 October 2003 was a 52 page restatement of her complaints, with annexures. Nevertheless, the complaint was, once again a discernable complaint of having been imputed falsely with a mental disability by the SSAT, by the RRT, by the Macarthur Legal Centre and others over a period of some eight years. It was possible to discern within the complaint an allegation of a common thread of such discrimination by Commonwealth employing agencies, although the link to non Commonwealth organisations appeared to be elusive.
The letter contained clear allegations of victimisation by the Commonwealth Rehabilitation Service and Centrelink.
The applicant’s letter was followed up with further correspondence from her to HREOC in which she sought to augment her complaints, particularly in relation to unlawful discrimination in the provisions of goods and services. Again, there was a unifying thread of her being falsely imputed with a mental disability. The applicant also augmented her complaints of victimisation by further correspondence in November and December 2003.
It appears that a HREOC officer, Ms R Clifford, sought orally to get to the bottom of the applicant’s complaints and, in response, the applicant wrote to HREOC by letter dated 11 November 2003 in which she sought to clarify her various complaints. This letter was a mere 10 pages long and provided a summary of the various complaints made by the applicant. Attached to that letter were separate documents making specific complaints against Mrs Annette O’Neill, Mr Stephen Hodges, Mr Russell Matthews, Ms Angela Beckett, Dr Glenda Peel, Mr Julian Millar, Dr Michael Pasfield, Ms Amanda MacDonald, Ms Suzanne Pierce, Ms Fran Rees, Ms Bridget Gilling, Ms Jenny Ciantar, Ms Hillary Kramer, Ms Jenny D’Arcy, Mr John Daniels, Mr David Williams, Mr Colin Thomson, Ms Alexis Hailstones, Ms Karen Peacock, Ms Glenda Peel, Ms Monica MacRae, Mr Alan Durie, Ms Fiona Hewson, Ms Inger Shek, Ms Carolyn Huntsman, Ms Pat Fleming, Dr Jean Edwards, Ms Totti Cohen, Mr David Dobell,
Mr Claudio Marzilli, Mr Terry Carney, Ms Lyn Rodgers and Mr Garry Richardson (all of the SSAT), and the SSAT as a body. This appears to have been an attempt to comply with the request from HREOC for the various complaints against individuals or organisations to be separately identified.
It appeared from that letter that all of the relevant complaints related to the SSAT, its staff and members and it was no doubt that letter which stimulated HREOC to seek a response to the complaints from the SSAT. HREOC accepted that letter as a complaint. However, in the same letter, HREOC purported to decline to investigate the applicant’s complaints against friends, acquaintances and family members, the RRT, its members and staff, the Macarthur Legal Centre and staff, the Commonwealth Rehabilitation Service, the New South Wales Department of Health and the Office of the Protective Commissioner, Centrelink and legal practitioners. On the same day, the applicant wrote again to HREOC stressing that she wished to pursue her complaints against all of those who she had complained against and that she wished to reactivate the complaint against the RRT she had made in 2001. Enclosed with this letter were a series of separate sheets making complaints against numerous named individuals.
By letter dated 25 November 2003 HREOC advised the applicant that it would not investigate any of those complaints. However, by letter dated 15 December 2003 Ms Clifford wrote to the applicant relevantly stating:
In the event that you submit further correspondence to the Commission about the difficulties you are experiencing with various service providers and government agencies or your concerns about the way you were treated at previous workplaces, this material will be looked at by the Commission and considered. If the events about which you complain do not have sufficient clarity for the Commission to take any action in relation to them and/or raise matters that do not constitute unlawful discrimination or victimisation, the correspondence will be placed on file and no action will be taken in relation to it.
In its submission dated 23 December 2003 the SSAT asked HREOC not to proceed further with its investigation of the complaints against the SSAT, its staff and members because:
·the applicant had made her allegations more than six years after her appointment term at the SSAT finished;
·the SSAT did not have any record of the applicant making a complaint about the conduct of another member;
·the SSAT spokesperson did not have any personal recollection of a complaint from the applicant during 1995 or 1996;
·many of the SSAT members identified by the applicant had left the SSAT; and
·much of what the applicant alleged relied upon her recollection of conversations she allegedly had when she was with the SSAT, which would be extremely problematic to verify.
In the delegate’s decision letter dated 19 January 2004, the delegate of the President accepted the SSAT submission. Relevantly, that letter stated:
Under s.46PH(1)(b) I have a discretion not to investigate a complaint if the complaint was lodged more than 12 months after the alleged discrimination took place. In deciding whether or not to exercise my discretion under s.46PH(1)(b), I have considered the submissions provided by both parties on this matter and the following factors:
· the length of the delay;
· the reasons for the delay;
· the prejudice to the respondent of proceeding;
· the prejudice to the complainant of not proceeding;
· whether the complaint raises important issues of public interest;
· the merits of the complaint; and
· the impact of the delay and the Commission’s ability to investigate the matter.
I note that your allegations of sexual harassment, marital status discrimination and victimisation under the SDA and imputed disability discrimination under the DDA relate to alleged events that took place from 1994 to 1997 when you ceased working for the SSAT. I have decided to terminate your complaint under s.46PH(1)(b) of the Act as your complaint was made to the Commission more than 12 months after the alleged unlawful discrimination took place. In reaching this decision I have given particular consideration to the length of the delay and the impact on the Commission’s ability to investigate this matter. I consider that there was a substantial delay in making your complaint to the Commission, a period of more than six years. I am of the view that at the relevant time as a member of the SSAT you would have been aware of the formal remedies available to people alleging sexual harassment, victimisation and disability discrimination and did not pursue them. I do not consider that you have provided satisfactory reasons to explain this lengthy delay in lodging your complaint with the Commission.
The letter went on to explain the particular difficulties that are experienced in investigating events that occurred a long time previously. The delegate referred in particular to problems in locating and dealing with key witnesses and dealing with the problem of diminishing memory. The delegate also noted the SSAT advice that it had no documentation that recorded any complaint about conduct that may have given rise to the applicant’s allegations. Finally, the letter advised the applicant of her right to commence proceedings in the Federal Court or this Court in relation to the terminated complaint.
In my view, the decision by the delegate of the President to terminate the investigation of the complaint against the SSAT, its employees and members pursuant to s.46PH(1)(b) was open to her on the material before her. The concerns raised by the SSAT about the consequences of delay were serious. Those concerns were properly accepted by HREOC. Although the applicant saw, and continues to see, a common thread of employment discrimination by various Commonwealth agencies on the basis of a wrongly imputed mental disability, there was no apparent factual linkage between the acts of discrimination alleged against the various agencies. They all appeared to be discrete matters, albeit with a common theme. There was nothing in the various complaints that necessitated them being considered as one set of complaints. It follows that I reject the applicant’s contentions of unreasonableness in the decisions to separate the complaint against the SSAT and to terminate it.
I accept the Commonwealth’s submissions in relation to the second ground of the application. The asserted link between the alleged phone call on 13 September 2002 by a person claiming to be John Foster and the earlier complaints in relation to the SSAT is tenuous indeed. Neither was there any apparent link between the assertions of the applicant being subjected to medical treatment on 4 April 2003 and the earlier complaints against the SSAT. Even if there had been some link between those matters and the earlier complaints, the real and serious problems relating to the investigation of those earlier complaints would have remained.
I also accept the Commonwealth’s submissions in relation to ground 3 of the application. There was extensive correspondence between the applicant and HREOC about her complaints. The applicant expressed herself in the most forthright terms about how HREOC should deal with her complaints. She was put on notice at the outset about the HREOC concern of delay in raising the complaints in relation to the SSAT and had the opportunity to deal with those concerns. She sought to do so. The delegate of the President, in her decision of 19 January 2004, claimed to have taken into account the submissions made by the applicant, and I have no reason to disbelieve that statement.
The procedure adopted by HREOC, although initially unfair both as to timing and the imposition of requirements as to the manner in which the applicant was to set out her complaints, was, viewed as a whole, fair. The applicant in fact proved capable of isolating her complaints against individuals and against organisations and HREOC did not carry out its threat to shelve investigation of the complaints if the applicant did not meet its request within the nominated period.
I find that the applicant has failed to demonstrate reviewable error in relation to the decisions of HREOC to separate its investigation of the SSAT complaints from the other complaints made by the applicant and in relation to its decision to terminate its investigation of that complaint pursuant to s.46PH(1)(b). The outcome is that the applicant is unsuccessful in her application, except in relation to that part of it which is conceded by HREOC. I will make orders reflecting that outcome.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 October 2006
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