McGlade v Human Rights & Equal Opportunity Commission

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FEDERAL COURT OF AUSTRALIA
McGlade v Human Rights and Equal Opportunity Commission [2000] FCA 1477

HUMAN RIGHTS - RACIAL DISCRIMINATION – complaint concerning statements said to be racially offensive referred by Race Discrimination Commissioner to Human Rights and Equal Opportunity Commission – Commission, having found complaint not to be frivolous, vexatious, lacking in substance or relating to an act not unlawful, summarily dismissed the complaint as “misconceived” – Commission found complaint was not misconceived when made, but became so by reason of subsequent circumstances – subsequent circumstances comprised principally the making of further similar statements in the Senate followed immediately by an apology in the Senate and matters arising out of such apology – Commission considered that it would not be “appropriate” to grant relief – at stage of summary dismissal, applicant’s evidence had not been taken – whether Commission applied the correct test for summary dismissal – whether Commission took into account irrelevant considerations.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Racial Discrimination Act 1975 (Cth), ss 18C, 24E(1)(a), 25X, 25Z(1)(b)
Human Rights Legislation Amendment Act (No. 1) 1999 (Cth), s 3 and Schedule
Equal Opportunity Act 1984 (Vic), s 44C

Assal v Department of Health, Housing and Community Services (1992) ECO 92-409 referred to
Nagasinghe v Worthington (1994) 53 FCR 175 referred to
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 referred to
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 applied
Burton v Shire of Bairnsdale (1908) 7 CLR 76 applied
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

McGLADE v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and SENATOR ROSS LIGHTFOOT

W 23 of 1999

CARR J
18 OCTOBER 2000
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 23 OF 1999

BETWEEN:

HANNAH McGLADE
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

SENATOR ROSS LIGHTFOOT
Second Respondent

JUDGE:

CARR J

DATE OF ORDER:

18 OCTOBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application be allowed.

2.The decision of the Human Rights and Equal Opportunity Commission, made on 21 January 1999, to dismiss the applicant’s complaint be set aside.

3.The applicant’s complaint be remitted to the Commission for decision in accordance with the law.

4.The second respondent pay the applicant’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 23 OF 1999

BETWEEN:

HANNAH McGLADE
Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

SENATOR ROSS LIGHTFOOT
Second Respondent

JUDGE:

CARR J

DATE:

18 OCTOBER 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an application, under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), for an order of review in respect of a decision of the Human Rights and Equal Opportunity Commission (“the Commission”), made on 21 January 1999,…

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Details
Case
[2000] FCA 1477
Decision Date

CaseChat Overview and Summary

The case of McGlade v Human Rights & Equal Opportunity Commission involves an application for judicial review of a decision by the Human Rights and Equal Opportunity Commission (HREOC) to dismiss a complaint of racial discrimination under the Racial Discrimination Act 1975 (Cth). The applicant, an Aboriginal person, lodged a complaint against the second respondent, a former member of the Legislative Council of Western Australia and later a senator, over statements he made about Aboriginal people, which the applicant considered to be racially discriminatory. The HREOC dismissed the complaint without conducting a substantive hearing. The applicant seeks to have the decision set aside and the complaint remitted for reconsideration.

The key legal issue before the court was whether the HREOC had taken into account irrelevant considerations in dismissing the complaint. The applicant argued that the HREOC had erred by considering factors such as the second respondent’s subsequent apology in Parliament, public debate about the respondent’s views, and the appropriateness of pursuing the complaint, rather than focusing solely on whether the statements constituted racial vilification under the Act. The second respondent contended that the court should only intervene if the HREOC had gone beyond the objects of the legislative scheme.

The court found that the HREOC had indeed taken into account irrelevant considerations in dismissing the complaint. It held that the primary responsibility of the HREOC under the Act was to determine whether the matters complained of amounted to racial vilification, and not to assess whether the respondent had appropriately addressed the issue through other means, such as parliamentary processes. The court held that by considering extraneous factors, the HREOC had not properly exercised its discretion under the Act. Consequently, the application was allowed, the decision of the HREOC was set aside, and the complaint was remitted for reconsideration in accordance with the law. Additionally, the court ordered the second respondent to pay the applicant’s costs of the application.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Human Rights and Equal Opportunity Commission, made on 21 January 1999, to dismiss the applicant’s complaint be set aside.

3. The applicant’s complaint be remitted to the Commission for decision in accordance with the law.

4. The second respondent pay the applicant’s costs of the application.

Note:

Background

Background to the litigation

This is an application, under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), for an order of review in respect of a decision of the Human Rights and Equal Opportunity Commission (“the Commission”), made on 21 January 1999, to dismiss a complaint made to it by the applicant against the second respondent pursuant to the provisions of the Racial Discrimination Act 1975 (Cth) (“the Act”). The Commission has, quite properly in my view, filed a submitting appearance. The second respondent opposes the application. FACTUAL AND PROCEDURAL BACKGROUND The Commission did not conduct a substantive hearing before it dismissed the applicant’s complaint. Accordingly no facts have been found. The following summary of “the facts” is taken from the assumptions made by the Commission for the purposes of its decision. The applicant is an Aboriginal person. The second respondent was at all material times until 26 May 1997 a member of the Legislative Council of Western Australia. On 26 May 1997 he was sworn in as a senator of the Commonwealth Parliament. On about 9 May 1997 the second respondent granted an interview to a Mr Damon Kitney, a journalist working on behalf of the “Australian Financial Review” (“the Financial Review”) which is published daily. The interview was conducted in the second respondent’s (State) parliamentary office in Perth. During the course of that interview the second respondent made statements which were reported in the Financial Review on 9 May 1997 as follows:“Aboriginal people in their native state are the most primitive people on earth.If you want to pick up some aspects of Aboriginal culture which are valid in the 21st Century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I would be happy to listen to those.” On 16 May 1997, the applicant lodged a complaint with the Commission against the second respondent. The complaint was that his statements, made on about 9 May 1997, as reported in “The West Australian” on 13 May 1997 contravened s 18C of the Act. In an outline of her complaint, enclosed in a letter dated 16 December 1998 from the applicant to the Commission, the applicant stated:“Senator Lightfoot then proceeded to make these same comments to the Commonwealth Parliament within the fortnight. These statements were reported on widely by the media (including the front page of The West 29/5/97).” The applicant was, in the above paragraph, referring to a statement made by the second respondent in the Senate on 28 May 1997. The precise terms of that statement are not in evidence. Later on 28 May 1997 the second respondent delivered an apology in the Senate in the following terms:“I refer to a statement I made earlier today. I wish to unreservedly apologise to any Australians who may have been given offence by the remarks I made. I regard all Australians, irrespective of their race or ethnic background, as being completely equal and entitled to equality of treatment without discrimination of any kind. Any views to the contrary which I may have expressed in the past I no longer hold. I respect the Aboriginal people of Australia and strongly support practical measures to address their disadvantage. I wish to make it clear that I did not intentionally wish to give offence to anyone.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J
The second respondent did not submit that the Commission would lack jurisdiction if its decision were set aside and the complaint were remitted to it.CONCLUSION For the above reasons, the application will be allowed, the Commission’s decision of 21 January 1999 will be set aside and the matter will be remitted to the Commission for further consideration according to law.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

I think that a complaint should properly be regarded as a continuing thing. It comes into existence when it is made, but until it is withdrawn or dismissed, it should be regarded as being continuously made to the court or tribunal in which it is instituted. If, in the present context, it was sufficiently clear that events had transpired since the complaint was initiated which demonstrated a factual situation in which there was no doubt that the complainant would be denied relief, then at that stage I think that a complaint would relevantly be regarded as “misconceived”. However, that was not the test which was applied in this matter. GROUND 2 – IRRELEVANT CONSIDERATIONSTHE APPLICANT’S CONTENTIONS The applicant listed what she submitted were the irrelevant considerations taken into account by the Commission as follows:(i)the second respondent’s subsequent apology in Parliament in relation to a statement that was not the subject of the complaint; (ii)public debate concerning the subsequent similar views expressed by the second respondent; (iii)the fact that the second respondent was a member of Parliament answerable to the electors through Parliament;(iv)the Commission’s opinion that the second respondent had not subsequently made any public statement similar in nature to those complained of; (v)the appropriateness, in the Commission’s view of the circumstances, including the status of the second respondent, of pursuing the complaint; and (vi)the Commission’s assessment on the material before it that the second respondent had repudiated his views, as expressed in the statement complained of, by means of a statement concerning another statement, both of which were made subsequently to and without regard to, the statement complained of. The applicant contended that those considerations were inconsistent with the primary responsibility conferred on the Commission under the Act, namely, to determine whether matters complained of amounted to racial vilification under ss 18C and 25Z of the Act. The applicant submitted that, by having regard to the above matters, the Commission had applied s 25X in a manner not intended by the Parliament. Section 25X did not allow or leave it open to, the Commission to attempt to determine whether a matter had been “appropriately dealt with under the (non legislative) processes of Parliament”. THE SECOND RESPONDENT’S CONTENTIONS The second respondent submitted that in determining whether or not a decision-maker had taken into account an irrelevant consideration, the Court had to have regard to the scope and objects of the legislative scheme as a whole: Mudginberri Station Pty Ltd v Kerin (Federal Court of Australia, unreported, Neaves J 14 August 1985, Application NTG 16 of 1985); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The Court’s role in such circumstances was only to ensure that in selecting criteria, the decision-maker had not gone beyond “any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363 at 375.