Mackie v Tay
[2001] FCA 1207
•4 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Mackie v Tay & Ors [2001] FCA 1207
HUMAN RIGHTS – anti-discrimination law – application for an order of review in respect of a decision of a delegate of the President of the Human Rights and Equal Opportunity Commission to terminate applicant’s complaint – complaint alleged unlawful discrimination on the ground of sex by psychologist appointed to prepare family assessment report by Family Court of Australia under Order 30A of the Family Court Rules 1984 (Cth) – whether complaint alleged unlawful discrimination – whether psychologist performing a function under a Commonwealth law – whether psychologist was acting in direct compliance with an order of a court under s 40(i) of Sex Discrimination Act 1984 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)
Sex Discrimination Act 1984 (Cth) ss 4, 26, 40(1), 105, 106
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PF(1), 46PH, 46PO
Family Law Act 1975 (Cth) ss 21, 31, 38(1), 64B, 65C, 65D(1), 123
Family Law Rules 1984 (Cth) O 30AWaters v Public Transport Corporation (1991) 173 CLR 349, cited
ALASDAIR ROBERT MACKIE v ALICE TAY AM, PRESIDENT, HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION; ROSS JEFFREY BOLLARD; TIMOTHY STEPHEN ADEY; FAMILY COURT OF AUSTRALIA; COMMONWEALTH OF AUSTRALIA
BRANSON J
ADELAIDE
4 SEPTEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIADISTRICT REGISTRY
S 15 of 2001
BETWEEN:
ALASDAIR ROBERT MACKIE
APPLICANTAND:
ALICE TAY AM, PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTROSS JEFFREY BOLLARD
SECOND RESPONDENTTIMOTHY STEPHEN ADEY
THIRD RESPONDENTFAMILY COURT OF AUSTRALIA
FOURTH RESPONDENTCOMMONWEALTH OF AUSTRALIA
FIFTH RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
4 SEPTEMBER 2001
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIADISTRICT REGISTRY
S 15 of 2001
BETWEEN:
ALASDAIR ROBERT MACKIE
APPLICANTAND:
ALICE TAY AM, PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTROSS JEFFREY BOLLARD
SECOND RESPONDENTTIMOTHY STEPHEN ADEY
THIRD RESPONDENTFAMILY COURT OF AUSTRALIA
FOURTH RESPONDENTCOMMONWEALTH OF AUSTRALIA
FIFTH RESPONDENT
JUDGE:
BRANSON J
DATE:
4 SEPTEMBER 2001
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Mr Mackie”) has applied to the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for an order of review in respect of a decision of the first respondent (“the President”), made by a delegate, to terminate a complaint lodged by Mr Mackie with the Human Rights and Equal Opportunity Commission (“the Commission”) alleging unlawful discrimination by Dr Ross Jeffrey Bollard (“Dr Bollard”) and the Family Court of Australia.
The complaint which Mr Mackie lodged with the Commission alleged that he had been discriminated against because of his sex during interviews leading to the preparation of a family assessment report. The family assessment report was prepared by Dr Bollard, a psychologist, pursuant to an order of the Family Court of Australia which appointed Dr Bollard as a court expert under Order 30A of the Family Court Rules. In the family assessment report prepared by him, Dr Bollard expressed the view that “… the finer points of child care … are generally better provided in young children by mothers as opposed to fathers”.
By letter dated 3 January 2001 a delegate of the President advised Mr Mackie, in effect, that she had formed the view that the relationship between him and Dr Bollard was such that his allegations concerning Dr Bollard did not fall within the ambit of the Sex Discrimination Act 1984 (Cth) (“the SDA”). The delegate, by her letter, further advised Mr Mackie that the Commission was not able to inquire into the actions or decisions of judges so that the Commission could not inquire into the manner in which the Family Court had exercised its judicial powers. The delegate informed Mr Mackie that his complaint against Dr Bollard and his complaint against the Family Court had been terminated under s 46PH(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOCA”) on the ground that the alleged discrimination was not unlawful discrimination.
For the reasons set out below, I have concluded that Mr Mackie’s application to this Court must fail.
SUBMISSIONS OF THE PARTIES
Mr Mackie appeared without legal representation and argued his case with considerable ability. He submitted that, in determining that the alleged discrimination of which he complained was not unlawful discrimination, the delegate overlooked the fact that Dr Bollard was, at the relevant time, performing a function under a Commonwealth law, namely under the Family Law Act 1975 (Cth) (“the Family Law Act”) and Order 30A of the Family Law Rules 1984. Mr Mackie further submitted that, at the relevant time, Dr Bollard was a Commonwealth employee within the meaning of the SDA.
Mr Mackie explained that his complaint had been misconstrued by the delegate of the President insofar as it referred to the Family Court. He had not intended to complain about an exercise of judicial power. He had intended to hold the Family Court vicariously liable for the conduct of Dr Bollard relying on s 105 of the SDA or alternatively on s 106 of the SDA.
Before the Court Mr Mackie argued that the Family Court, or in the alternative the Commonwealth, was vicariously liable for the conduct of Dr Bollard or alternatively liable for having instructed, induced, aided or permitted Dr Bollard to engage in the conduct of which Mr Mackie made complaint.
Mr Mellows, counsel for Dr Bollard, submitted first, that the decision of the President, made by her delegate, to terminate Mr Mackie’s complaint was not attended by any error, and secondly, even if it was, as a matter of discretion the Court ought not to grant relief to Mr Mackie.
Mr Mellows referred to the fact that the proceedings in the Family Court for which the family assessment report of Dr Bollard had been obtained had been completed and suggested that no useful purpose would be served by the matter proceeding further. Mr Mellows did not rely upon s 46PO of the HREOCA as matter going to the Court’s discretion to grant relief under the ADJR Act. Section 46PO of the HREOCA authorises a person whose complaint has been terminated by the President to make an application to this Court, or to the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
STATUTORY PROVISIONS
Administrative Decisions (Judicial Review) Act 1977
Section 5(1) of the ADJR Act relevantly provides:
“A person who is aggrieved by a decision to which this Act applies … may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)…
…
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
…
(j) that the decision was otherwise contrary to law.”It was common ground that the decision of the President, made by her delegate is a decision to which the ADJR Act applies.
Sex Discrimination Act 1984
The SDA does not contain a general proscription of discrimination on the ground of sex. It renders discrimination on the ground of sex unlawful in particular circumstances. Mr Mackie placed reliance on s 26 of the SDA which is to be found in Division 2 of Part II of the SDA. Section 26 relevantly provides:
“26(1)It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person’s sex, … in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
26(2) …”
Section 4 of the SDA contains the following definitions which are relevant to s 26(1) of the Act:
“‘Commonwealth law’ means:
(a)an Act, or regulation, rule, by-law or determination made under or pursuant to an Act;
(b)an Ordinance of a Territory, or a regulation, rule, by-law or determination made under or pursuant to an Ordinance of a Territory; or
(c)an order or award made under or pursuant to a law referred to in paragraph (a) or (b);
‘Commonwealth program’ means a program conducted by or on behalf of the Commonwealth government.”
Division 4 of Part II of the SDA is concerned to identify certain circumstances in which discrimination on the ground of sex is not unlawful. Section 40(1) which forms part of Division 4 of Part II, relevantly provides:
“40(1)Nothing in Division 1 or 2 affects anything done by a person in direct compliance with:
(a)(now omitted)
(b)(now omitted)
(c)…
(d)an order of a court; or
(e)…
(f)….”
Sections 105 and 106 of the SDA respectively provide:
“105A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.
106(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as agent:
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II ;
this Act applies in relation to that person as if that person had also done the act.
106(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.”
Human Rights and Equal Opportunity Commission Act 1986
Section 46P of the HREOCA authorises a person aggrieved by alleged unlawful discrimination to lodge a written complaint with the Commission alleging unlawful discrimination. A complaint made to the Commission under s 46P of the HREOCA must be referred by the Commission to the President. Subsection 46PF(1) requires the President to inquire into, and attempt to conciliate, a complaint referred to the President.
Section 46PH of the HREOCA relevantly provides:
“46PH(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;
…
46PH(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.
46PH(3) …
46PH(4) ….”
Family Law Act 1975
Section 21 of the Family Law Act creates the Family Court as a superior court of record. The original jurisdiction of the Family Court is defined by s 31 of the Family Law Act. The original jurisdiction of the Family Court extends to matters with respect to which proceedings may be instituted in the Family Court. Section 38(1) of the Family Law Act provides that, subject to the Act, the practices and procedures of the Court shall be in accordance with the Family Law Regulations and the Family Law Rules.
Division 6 of Part VII of the Family Law Act, which is comprised of ss 65A-65ZD, is concerned with parenting orders other than child maintenance orders. Section 64B defines a “parenting order”. A “parenting order” made by the Family Court may deal with one or more of the following:
“(a) the person or persons with whom a child is to live;
(b) contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child.”Section 65C authorises, amongst others, a parent of a child to apply for a parenting order in respect of that child. Subsection 65D(1) provides that, in proceedings for a parenting order, the court may, subject to Division 6 make such parenting order as it thinks proper.
Family Law Rules 1984
Section 123 of the Family Law Act gives the Judges of the Family Court, or a majority of them, wide power to make Rules of Court not inconsistent with the Family Law Act, providing for or in relation to the practice and procedure to be followed in the Family Court, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in the court.
Order 30A of the Family Law Rules is concerned with expert evidence. Order 30A rule 3(1) provides:
“The court may, at any stage of proceedings, on application by a party or of its own motion:
(a)appoint an expert as court expert to inquire into and report on any issue of fact or opinion, other than an issue involving questions of law or construction, arising in the proceedings; and
(b)give directions to extend or supplement, or otherwise in relation to, any such inquiry or report.”
REASONS FOR DECISION OF THE PRESIDENT
The letter dated 3 January 2001, which was signed by the delegate of the President, outlined the reasons for the termination of Mr Mackie’s complaint in the following way:
“I note that you claim that you have been discriminated against on the basis of your sex. For your information, the Sex Discrimination Act 1984 (Cth) (the SDA) covers complaints of sex discrimination on the basis of sex if, and only if, it occurs in certain areas of public life. These areas include the following:
·employment;
·education;
·goods and services;
·accommodation;
·land;
·clubs; and
·The administration of Commonwealth laws and programs.
…
I have carefully considered your allegations against Dr Bollard. I wish to advise that I am of the view that there is not a requisite relationship between you and Dr Bollard that would bring your allegation into an area of public life covered by the SDA. For the purposes of your complaint, the most relevant area under the SDA would appear to be the provision of a service. However, Dr Bollard was engaged by the Family Court to assist the Court to make appropriate orders in relation to the custody of your son. Dr Bollard was therefore providing a service to the Court and not to you.
For this reason, I have no option but to terminate your complaint against Dr Bollard under section 46PH(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 on the ground that the alleged discrimination is not unlawful.
Regarding your complaint against the Family Court of Australia, I wish to advise that the Commission is not able to inquire into the actions or decisions of judges. This is because The Australian constitution provides for a separation of powers between the legislative, executive and judicial functions and powers of the Commonwealth. … Therefore, the Commission cannot address your concerns about the manner in which the Court has exercised its judicial powers. The constitution states that the executive cannot interfere with the judiciary. If you are dissatisfied with a decision of the Family Court, review is provided through a process of appeal. For these reasons, I must terminate your complaint against the Family Court of Australia under section 46PH(1)(a) of the HRCOCA on the ground that the alleged unlawful discrimination is not unlawful.”
CONSIDERATION
Mr Mackie did not challenge the correctness of the view expressed by the delegate of the President that the Commission was not authorised to inquire into the exercise by the Family Court of its judicial powers. His complaint concerned the failure of the delegate of the President to give consideration to ss 26,105 and 106 of the SDA.
The role of the Court on an application under s 5 of the ADJR Act is to review the decision the subject of the application. Where reasons for the decision are available, they may reveal the existence of a ground for review. They may show, for example, that the making of the decision was an improper exercise of the relevant power because the decision maker took irrelevant considerations into account in reaching the decision. They might show, by way of further example, that the decision maker based the decision on the existence of a particular fact, and that fact did not exist. Nonetheless the role of the Court remains that of reviewing the decision to which the ADJR Act applies and not the reasons for the decision.
In this case the decision of the President, made by her delegate, was to terminate Mr Mackie’s complaint of sexual discrimination on the ground that no unlawful discrimination was alleged by the complainant. That is, she terminated Mr Mackie’s complaint because she formed the view that, on the proper construction of the SDA, Mr Mackie’s complaint did not contain allegations which fell within the terms of the Act. The President did not herself, or by her delegate, consider the factual merits of Mr Mackie’s allegations. She did not, for example, consider the probability of the existence of any fact upon which he relied. She did not consider any issue touching on the credibility of Mr Mackie or any other person. She did not exercise any relevant discretion in respect of Mr Mackie’s complaint. It is not necessary for present purposes to give consideration to whether s 46PH of the HREOCA gives the President a discretion to terminate a complaint where he or she is satisfied that the alleged unlawful discrimination is not unlawful discrimination or whether it imposes on the President a duty to terminate the complaint in such circumstances.
The decision here under review is a legal decision. Either the alleged conduct of which Mr Mackie complained was capable of constituting unlawful discrimination under the Act or it was not. As no relevant ambiguity attended the allegations made by Mr Mackie, the question of whether they amounted to allegations of unlawful discrimination within the meaning of the SDA depended upon the proper construction of the SDA. It did not involve the President, by her delegate, considering the merits, as opposed to the legal sustainability of Mr Mackie’s complaint. The Court will not improperly engage in a review of the merits of the decision of the President, as I think that Mr Mackie suggested that it would, by considering all relevant provisions of the SDA for the purpose of determining whether the conduct of which Mr Mackie complained amounted to unlawful discrimination under the Act.
The President, by her delegate, in advising Mr Mackie of the decision to terminate his complaint, did not expressly refer to ss 26, 105 and s 6 of the SDA. In the circumstances it cannot be known whether the sections were overlooked by the delegate or regarded by her as so obviously unhelpful to Mr Mackie that it was unnecessary to make reference to them. Her letter made it clear, however, that, in her view, the conduct of which Mr Mackie complained was not covered by the SDA.
Mr Mackie contended that the discrimination of which he complained was unlawful discrimination. He argued that, when Dr Bollard interviewed him for the purpose of preparing his report, Dr Bollard was performing a function under a “Commonwealth law” as that expression is defined by s 4 of the SDA, namely under the Family Law Act and the Family Law Rules. It seems to me that this contention is correct.
It is for this reason not necessary for me to determine whether Mr Mackie’s alternative contention that Dr Bollard was performing a function or exercising a power for the purposes of a Commonwealth program is also correct. In deference to Mr Mackie’s careful submissions, however, I observe that it is likely that a program conducted by or on behalf of the Commonwealth government within the meaning of the statutory definition of “Commonwealth program” is a program conducted by or on behalf of the executive arm of the Commonwealth government. It seems to me that there is reason to doubt that Dr Bollard, in interviewing Mr Mackie for the purpose of preparing an expert report to assist the Family Court in the exercise of its jurisdiction under Division 6 of Part VII of the Family Law Act, was performing a function or exercising a power for the purposes of a program conducted on behalf of the executive arm of the Commonwealth government. It may be, although it is unnecessary to decide, that certain aspects of the administration of the Family Court constitute a program, or part of a program, conducted by or on behalf of the Commonwealth government. However, I am inclined to doubt that, when it is exercising the judicial power of the Commonwealth, the Family Court is performing a function or exercising a power for the purposes of a program conducted by or on behalf of the executive arm of the Commonwealth government.
The acceptance of Mr Mackie’s contention that Dr Bollard was relevantly performing a function under a Commonwealth law means that, prima facie, the complaint that Mr Mackie lodged with the Commission contained allegations of conduct rendered unlawful by s 26 of the SDA. However, s 40(1) of the SDA has the effect that s 26 does not render unlawful anything done by a person in direct compliance with an order of a Court. It is therefore necessary to determine whether Dr Bollard, by interviewing Mr Mackie and preparing his family assessment report, was acting in direct compliance with an order of the Family Court.
It is not in dispute that Dr Bollard is an expert who was appointed by an order of the Family Court, made under O 30A of the Family Law Rules, to prepare a family assessment report. The family assessment report was relevant to the Family Court’s consideration of an application for a “parenting order” made in respect of Mr Mackie’s child. An aspect of the “parenting orders” sought was an order as to the person or persons with whom the child was to live. It may be assumed that a purpose of the appointment of Dr Bollard under O 30A of the Family Law Rules was for him to interview, amongst others, Mr Mackie for the purpose of forming an expert opinion as to the person or persons with whom it would be in the best interests of the child for the child to live. In interviewing Mr Mackie, and expressing his opinion in his family assessment report, Dr Bollard was, in my view, acting in direct compliance with the order of the Family Court made under O 30A of the Family Law Rules. This conclusion is, in my view, inevitable whether s 40(1) of the SDA is given a narrow or a wide construction (see Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 368-369).
There is no other basis upon which Mr Mackie contended that his complaint lodged with the Commission contained allegations of unlawful discrimination by Dr Bollard. All other allegations and claims for relief made by Mr Mackie were dependent upon the validity of his complaint against Dr Bollard. They necessarily stand or fall with the allegations made against Dr Bollard.
For the above reasons Mr Mackie has failed to establish that the decision of the President, made by her delegate, to terminate Mr Mackie’s complaint on the ground that she was satisfied that the alleged unlawful discrimination was not unlawful discrimination was erroneous.
CONCLUSION
The application will be dismissed. I will hear the parties on the issue of costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 29 August 2001
Counsel for the Applicant: The Applicant appeared in person Counsel for the Second Respondent: Mr Mellows Solicitor for the Second Respondent: Foreman Mead McGinn Date of Hearing: 12 July 2001 Date of Judgment: 4 September 2001
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