Otti v Commonwealth of Australia
[2012] FMCA 1022
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OTTI v COMMONWEALTH OF AUSTRALIA | [2012] FMCA 1022 |
| HUMAN RIGHTS – Racial discrimination – Racial Discrimination Act 1995 (Cth) – alleged discrimination by Australian diplomatic officials in Kenya – extraterritorial operation of the Act – no jurisdiction – no substantive basis for discrimination claim – application dismissed. PRACTICE & PROCEDURE – Judgment – summary judgment – no reasonable prospect of success – unnecessary expenditure – risk of more significant costs order if matter were allowed to proceed – prejudice as to evidence – lengthy delay in bringing proceedings – no arguable case – summary judgment allowed – originating application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.2B Commonwealth Constitution, s.122 Disability Discrimination Act1992 (Cth) Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth), r.13.10 Racial Discrimination Act 1995 (Cth), ss.4, 9 Sex Discrimination Act 1984 (Cth) International Convention on the Elimination of All Forms of Racial Discrimination 1966 |
| Brannigan v Commonwealth of Australia (2000) 110 FCR 566 Seers v Australia Post [2011] FMCA 659 White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another (2007) 160 FCR 298 |
| Applicant: | EMMANUEL OTTI |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | BRG 563 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr D. Pratt |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application in a case filed 17 September 2012 be allowed.
That the application filed 26 June 2012 be dismissed.
That the applicant in the proceeding pay the respondents’ costs of and incidental to the proceeding calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
No. BRG 563 of 2012
| EMMANUEL OTTI |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The applicant commenced his application against the Commonwealth for an apology and compensation for alleged racial discrimination. By application in a case the Commonwealth now seeks orders for the principal application to be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth), together with costs.
By way of background, the applicant, Mr Otti, is an Australian citizen, originally born in Kenya. He has been an Australian citizen for some years. In December 1997 he sought to travel to Kenya to visit his ailing mother. On the evening of 24 December 1997, he arrived by commercial flight at Nairobi Airport. Once at the immigration point at the airport he experienced difficulties. He had travelled expecting to obtain a visa at the border point. There was nothing to suggest that this expectation was unreasonable. However, an issue arose concerning his passport. Possibly this was because of reported use and abuse of stolen Australian passports at border points in Kenya at about that time.
That matter itself is not critical to the determination of this application. The fact is that he was challenged at the border point and was refused entry into Kenya. He requested Consular assistance and an officer from the Australian High Commission attended at the airport and spoke with him and provided some assistance. The following exchange of cables between the Australian High Commission in Kenya and the Department of Foreign Affairs and Trade (DFAT) in Canberra reveals the position. A cable was sent from Kenya to Canberra at approximately 02:52 on 24 December 1997. It read:
“… NAIROBI CANBERRA HARARE PORT LOUIS PRETORIA … UNC FIRST TO. PP CANBERRA … UNCLASSIFIED OTTI, EMMANUEL – PPT NO K1354452 FOR DFAT FOR PASSPORTS POLICY / FOR DIMA FOR INFOMRATION KENYAN IMMIGRATION AUTHORITIES CALLED HIGH COMMISSION TODAY AND ASKED SENIOR MIGRATION OFFICER TO COME TO THE AIRPORT TO VERIFY INDENTITY OF AN AUSTRALIAN AND POSSIBLE FRAUDULENT USE OF AUSTRALIAN PASSPORT. 2 COUNSUL ACCOMPANIED SMO AND WHILE AT THE AIRPORT AUTHORITIES ASKED US TO INTERVIEW A SECOND AUSTRALIAN MR. EMMANUEL OTTI. SMO AND CONSUL MET OTTI IN THE CUSTOMS ENCLOSURE AND FOUND THAT MR OTTI WAS INCAPABLE OF ANSWERING ANY QUESTIONS AND APPEARED TO BE UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS. WE WERE UNABLE TO VERIFY THAT A/N[1] WAS IN FACT THE OWNER OF THE PASSPORT. EVEN THOUGH THE PASSPORT SHOWED NO IMMEDIATE SIGNS OF TAMPERING, AND THERE WAS A DEFENSIBLE LIKENESS BETWEEN THE INDIVIDUAL AND THE PASSPORT PHOTOGRAPH, IT WAS STILL NOT POSSIBLE FOR US TO CONFIRM THAT THE PERSON BEING DETAINED BY THE POLICE AND THE PASSPORT HOLDER WERE ONE AND THE SAME. 3 IN VIEW OF THIS, AIRPORT POLICE DECIDED THAT THEY WOULD RETAIN A/N IN A HOLDING AREA OVER NIGHT AND THAT WE COULD INTERVIEW HIM A.M. ON 24.12.97. TO ASSIST US IN OUR INTERVIEW, GRATEFUL YOU CONFIRM WITH ANSETT AIRLINES BRISBANE OFFICE THAT A/N IS AN EMPLOYEE OF THEIRS,. THAT HE IS EMPLOYED AS A HUMAN RESOURCE MANAGER AT BRISBANE AIRPORT,. THAT HE IS ON LEAVE FROM THE COMPANY AND THAT HE HAS NOT IN THE PAST 48 HOURS REPORTED HIS PASSPORT LOST OR STOLEN. 4 IN REGARD TO THIS LATTER POINT WE HAVE CHECKED WITH PRETORIA AND THEY HAVE ADVISED THAT THERE HAS BEEN NO REPORT OF A LOST PASSPORT IN THE NAME OF OTTI. 5 TO ENABLE US TO ASSIST MR OTTI YOUR REPLY BY COB CANBERRA TIME 24 DECEMBER WOULD BE APPRECIATED …”
[1] Australian national.
A response by cable followed on 24 December at 12:46. Relevantly, it provided:
“… OTTI, EMMANUEL ANSETT BRISBANE CONFIRM THAT THEY DO HAVE AN EMPLOYEE BY THE NAME OF EMMANUEL OTTI,.HE WORKS IN THE IN FLIGHT CATERING SERVICE AND IS CURRENTLY ON LEAVE UNTIL 14/01/1998. THEY ALSO CONFIRM THAT OTTI BOOKED TRAVEL
JOHANNESBURG/NAIROBI/JOHANNESBURG THROUGH THEIR COMPANY. PASSPORT K1354452 HAS NOT BEEN REPORTED LOST OR STOLEN. ADDITIONAL INFORMATION HELD ON PICS WHICH MAY HELP YOU TO DETERMINE OTTI’S BONA FIDES FOLLOWS: NAME AT BIRTH AND AT CITIZENSHIP OTIENO (F/N), EMMANUEL MOTHER’S NAME AT BIRTH – JAROMO (F/N) NOK LISTED AS – REEVES (F/N) – SPOUSE …”
In response to that message, Nairobi further cabled on 24 December at 17:24 in these terms:
“… UNCLASSIFIED OTTI, EMMANUEL FOR ALAN WATSON PASSPORTS THANKS YOUR REF TEL AND SUPPLEMENTARY INFORMATION PROVIDED THEREIN. 2. CONSUL INTERVIEWED A/N AT AIRPORT A.M. 24.12.97 AND WAS ABLE TO CONFIRM IDENTITY. KENYAN IMMIGRATION AUTHORITIES HAVE NOW RELEASED A/N FOR ONWARD TRAVEL. WE HAVE COUNSELLED A/N ON THE DANGERS OF TRAVEL IN KENYA …”
To that point it appears that the Australian officials believed that the applicant had been granted a visa and permitted through immigration and released. In fact, that was not the case, as a subsequent cable revealed. The cable sent from Nairobi on 29 December 1997 at 17:57 noted:
“… UNCLASSIFIED OTTI, EMMANUEL FOR ALAN WATSON PASSPORTS FOLLOWING OUR REF TEL DATED 24.12.97. 2. MR. OTTI WAS NOT RELEASED AS THOUGHT ON 24.12.97. CONSUL WAS INFORMED TODAY BY SENIOR IMMIGRATION OFFICER AT JOMO KENYATTA INT’L AIRPORT THAT MR. OTTI NEVER LEFT THE AIRPORT BUT BOARDED A FLIGHT BACK TO JOHANNESBURG ON 28.12.97. 3. IT WOULD APPEAR THAT MR. OTTI’S BEHAVIOUR ON ARRIVAL DID NOT WARRANT ENTRY INTO KENYA …”
The applicant’s construction of these events is explained in his amended application as follows.
“I strongly feel & believe that the AUSTRALIAN HIGH COMMISSION projected a high prejudice and discriminative attitude of my race(BLACK AFRICAN) towards my release, freedom in their presence, upon my identity to clarifying my Australian citizenship( passport) there and then rather than walking away which was seen as CARELESS, NEGLIGENCE, dehumanising and a violation of my human rights from my REPRESENTATIVE.
· To make it worse AUSTRALIAN HIGH COMMISSION Upon leaving he never counter check, followed up my situation or monitor the events of my release, wellbeing apart from giving false number to the Kenya Airport Authorities that went unanswered
· If I would have been (White Australian Citizen) the events would have turned a round with more attention
· That left the Kenya Airport officials a shamed of my predicament. As they assured of my release immediately, unconditionally with direction from the Australian Commissioner to reverse the condition applied on my passport by on duty officer. The commissioner seems not interested to Cooperate in any other way apart from giving mobile phone number that the Airport authorities
numerous attempts failed, After all they had no choice but to send me back to Australia 0n 28th Dec . [errors as per original]”
His application includes multiple complaints that can be summarised as three parts:
a)that the conditions of his detention were inhumane;
b)that DFAT was negligent and complacent; and
c)that had he been a white Australian he would have been treated differently.
The applicant’s case was expressed at its highest in his outline in response to the Commonwealth’s application:
“…
The Airport Authority staff questioned the careless and casual attitude displayed action as well as approach of the issue with which he handled the issue by the Australian High Commission. He was requested by the Airport staff to follow the formal procedure of revoking the non-entry permit that had been stamped on my passport but he failed to comply with their request. This was viewed by the Airport staff as inappropriate and unfavourable treatment towards the applicant. They even commented that blacks are quick to take citizenship of others countries but they seem not to enjoy all the privileges that come with this status. The more they looked at it the more strange it looked to them. He displayed no dire interest in facilitating my release. This left a lot of questions unanswered in mind. Was it true that he was really running late? Why did he not facilitate the paper work while he was at the Airport? Was it because I was an Australian from another race?
The High Commission reason for not acting towards my immediate release was that he was running out of time to attend to some formal procedure, unknown and unexplained to me. He informed the Kenya Airport staff that he would facilitate my application for release from a mobile phone from his residence and will contact the Airport Authorities for my release and left contact that went unanswered, with message that he can not be reached after the Christmas Eve and the New Year holidays etc. I remain in the airport for five days. These were five days in hell. I was the airport laughing stock. At that point, I “lacked a nationality.” I was not Kenyan, foreign country. The ill doings I suffered as a victim in this instance was no accident, it was total negligent discrimination.
Approximately by 4pm on the 24.12.1997, I asked the Airport Authorities if they have received directions of my release over the phone from the Australian High Commission as indicated by the Officer before living the Airport. I was informed they haven’t and their numerous attempts to reach the consulate was futile. After 5 days in hell” with no contact from the consulate, with inhumane conditions subjected to on a daily basis, they felt that I have the right to be sent back to Australia to avoid further suffering as the Australian representative in Kenya Couldn’t be reached in providing, an effective emergency consular assistance as agreed.
As the victim, I have the right for the DFAT officials to apologise or to show any concern for my welfare through compensation. The officials at the High Commission should have taken the responsibility to follow up on the matter after 24th December 1997 and to just ensure that I was safe, a live and free from detention. Instead, no one cared what happened after the 24th December 1997. What was I supposed to do, wait forever at the Kenyan airport till after New Year? Remember, I was on my way to spend Christmas with my late mother and family.
… [errors as per original]”
The grounds of the dismissal application brought by the Commonwealth are broadly as follows:
a)that the facts and circumstances on which the proceeding is based occurred wholly outside Australia and the Racial Discrimination Act 1995 (Cth) (RDA) has no extraterritorial operation;
b)that even if the RDA operated extraterritorially, which it does not, the pleadings are incompetent and do not plead a cause of action as a matter of law;
c)that based on the applicant’s own material at its highest the proceeding has no reasonable prospects of success;
d)that the progression of this matter will result in a great deal of unnecessary expenditure and it would be a burden on public resources;
e)that if the proceeding runs to final hearing the applicant will face a far more significant costs order than would presently be the case; and
f)that the facts and circumstances on which the proceeding is based occurred over 14 years ago and thus the proceeding presents the respondent with a severe prejudice as to evidence (as well as being statute barred) as a result of the efflux for such a long period of time.
Although the application sought relief pursuant to r.13.10. That rule mirrors s.17A of the Federal Magistrates Act 1999 (Cth), which provides that:
“Summary judgment
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
…”
Subsection (3) provides that:
“…
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…”
That provision has been examined and explained by Lindgren J in White Industries Aust Ltd and Another v Federal Commissioner of Taxation and Another,[2] a case which has been approved in other courts. Concerning the term “no reasonable prospects of success,” his Honour noted as follows, commencing at [53]:
[2] (2007) 160 FCR 298.
“The “no reasonable prospects of success” formula of s.31A is that which was adopted in r.24.2 of the United Kingdom’s Civil Procedure Rules (UK) (“CPRs”) following the recommendation of Lord Woolf, Master of the Rolls, in his Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, 1996), Chapter 12, sections 31–36. The same test has been adopted in rr.292(2) and 293(2) of Queensland’s Uniform Civil Procedure Rules 1999 (Qld).
[54] Under s.31A I must be satisfied that the applicants have no reasonable prospect of success, but as s.31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s.31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Cmrs (1949) 78 CLR 62 at 91–92…
…
[55] Section 31A and the identically worded s.17A of the Federal Magistrates Act 1999 (Cth) (“the FM Act”) were introduced by the Migration Litigation Reform Act 2005 (Cth) (No 137 of 2005) which commenced on 1 December 2005. On the second reading speech on the Bill for that Act, the Attorney-General said that the new provision would strengthen “the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases.” By “broadening the grounds” the Attorney-General was referring to the formula “no reasonable prospects of success” as contrasted with a “hopeless” or “bound to fail” test…”
His Honour proceeded then, after some discussion, at [59] to note in these terms:
“…the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Co of the Bank of England (No 3) [2003] 2 AC 1 … The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England, that the “no reasonable prospects of success” test requires the court to determine whether there are “real” as opposed to “fanciful” prospects of success…”
The case must also be considered in light of the facts addressed in Seers v Australia Post.[3] In that regard, I refer to the fact that the applicant here is self-represented. In Seers, O’Dwyer FM, was considering a similar application for summary dismissal of a proceeding which had been commenced in respect of complaints under the Disability Discrimination Act 1992 (Cth) (DDA). There the applicant was self-represented. His Honour there made a number of observations with which I agree and which have been neatly summarised in the Commonwealth's submissions. The effect of his Honour's observations were summarised in the respondent’s submissions as follows. They supplement the observations of Lindgren J:
[3] [2011] FMCA 659.
“(a) The respondent bears the onus of proof of showing that the proceedings are of a character that they should be dismissed.
(b) The jurisdiction must be exercised with exceptional caution and sparingly invoked.
(c) The proceedings should only be dismissed on this basis if the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of process of the Court.
(d) In circumstances where an applicant is self-represented, the Court should use great care and independently consider whether an arguable case based on the material could be made out by the applicant.
(e) Where an application is for summary dismissal with an unrepresented litigant, the court must have regard not merely to the litigant in person but also to the position of the other party or parties concerned, and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources.
(f) It is in the interests of the public and the parties that the hearing of a complaint, which is clearly shown to be lacking in substance should be summarily terminated. It is no kindness to a complainant to shrink from the exercise of the power in circumstances where that exercise is clearly warranted. That is particularly so where an unsuccessful litigant, if proceedings are protracted, may face a considerable burden of a costs order.”
Plainly, for present purposes I proceed upon the premise that I accept the applicant's case at its highest, that is, accepting both the truth of his assertions and his understanding of the allegations that are made by him.
Moving, then, to the matters which are contended for by the Commonwealth. The Commonwealth contends that its application ought succeed on three bases. The first concerns jurisdiction, the second concerns prejudice and the last concerns “no arguable case.” Although, having made that observation, the matters which were identified in its application find themselves incorporated into each of those three headings.
I shall deal first with jurisdiction. In its submissions, the Commonwealth contends that the proceedings ought be summarily dismissed because the court has no jurisdiction in respect of this proceeding. It notes that the whole of the proceeding relates to events that occurred outside Australia, and that the RDA does not operate extraterritorially even in relation to the conduct of Australian citizens employed by the Commonwealth occurring outside the territories of Australia. On that basis, it submits that the court has no jurisdiction to hear and determine the proceeding.
Before proceeding to examine the authority which is cited in support of that submission, it is helpful for the applicant to understand the basis of an action under the RDA, a matter which is not alluded to in his application. Having regard to the facts that are placed before the court, it seems that the applicant wishes to prosecute a claim under s.9, which provides in these terms:
“Racial discrimination to be unlawful
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
…”
Subsection (2) of s.9 provides that:
“A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination].”
So far as it is relevant, article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination 1966 (the Convention) provides that:
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law…”
Relevantly, in this case, the Convention notes:
“…
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one's own, and to return to one's country;
…”
A fundamental question arises as to whether there could be a breach of any article 5 right in the circumstances of this case. The rights provided for in article 5 do not appear to deal with external freedom of movement and residence outside the border of the Australian state. The matter was not argued, and I do not need to decide it for other reasons, but it is in my view appropriate to make that point at the very outset. Perhaps more substantially, however, is the point made by the Commonwealth, and that is the difficulty that arises by operation of s.4, which deals with the application of the Act. Section 4 of the Act is in these terms:
“This Act extends to every external Territory.”
The Acts Interpretation Act 1901 (Cth) at s.2B defines Territory to mean:
“… a Territory referred to in section 122 of the Constitution.”
Section 122 of the Commonwealth Constitution makes reference to the Parliament's capacity to make laws for the government of:
“… any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth…”
In this instance, we are talking of events that occurred in Kenya. There is no suggestion that Kenya is a territory which has been surrendered by any state to and accepted by the Commonwealth, nor that the Commonwealth has any other capacity to make laws in respect of it. The difficulty which the applicant confronts is highlighted by the decision of the Federal Court in Brannigan v Commonwealth of Australia.[4] That case was slightly different insofar as it concerned an action by a former employee of the Commonwealth employed in the Australian High Commission in the United Kingdom. The action brought by that particular applicant was not only one in respect of a complaint under the RDA but also under Acts of a similar ilk, such as the Sex Discrimination Act 1984 (Cth) (SDA) and the DDA.
[4] (2000) 110 FCR 566.
His Honour, however, considered the argument of extraterritorial application insofar as it concerned the RDA. By way of general principle, his Honour noted:
“[12] There are, said Mr Short, authorities of powerful persuasion, which state that there is a general presumption of statutory interpretation that the legislature only intends its statutes to operate on persons and in relation to matters within its territory. In Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363 O'Connor J said:
“In the interpretation of general words in a statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within the territorial limits.”
[13] That statement was followed a few years later by the remarks of Isaacs J in Morgan v White (1912-1913) 15 CLR 1 at 13 where his Honour said:
“Another relevant consideration, having an important bearing on the situation is the well known doctrine that legislation is primarily territorial as Lord Halsbury LC said in Cooke v Charles A Vogeler Co. (1901) AC 102 at 107. The meaning of the doctrine is that unless the language of a Statute by express words or necessary implication indicates the contrary, the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction and for the welfare of which it exercises that jurisdiction.”
[14] Dixon J expressed himself in the same terms in Barcelo v Electro-Lytic Zinc Co of Australasia Ltd (1932) 48CLR 391 at 423-424. He wrote:
“I have come to the conclusion that in such a situation the only safe course to pursue is to apply the settled, if artificial, rule of construction for confining the operation of general language in a statute to a subject matter under the effective control of the Legislature. ‘Every Statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law’ (per Hannen P in Bloxam v Favre (1883) 8 PD 101 at 107, adopting Maxwell on Statutes). 'It is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or state…””
As I have noted earlier, his Honour addressed matters concerning not just the RDA, but also the SDA and the DDA in the context of his judgment. Broadly, his Honour rejected the argument of there being an implied grant of extraterritorial jurisdiction in respect of each of the three Acts. However, his reasoning in respect of those matters was different because each Act contained differing provisions. However, relevant to this case, at [24] his Honour made these observations:
“I turn finally to consider the provisions of the Racial Discrimination Act. Mr Hannon conceded that in this particular piece of legislation there was no similar reference to Commonwealth employees as appears in s.9 of the Sex Discrimination Act and s.12 of the Disability Discrimination Act. He was forced to fall back on his basic proposition that a fair reading of the entire Act discloses, by implication, an intention on the part of the Parliament to legislate extra-territorially. In addition to relying upon the preamble to the Act and its statement that it binds “the Crown in right of the Commonwealth” (s.6) Mr Hannon sought to draw comfort from the provisions of ss.9(2) and 10(2) both of which refer to the International Convention on the Elimination of all Forms of Racial Discrimination…”
His Honour, at [25], proceeded to make this remark:
“…There are two matters in the Racial Discrimination Act, both of which react against the implication that Mr Hannon would seek to draw. In the first place there is s.4 which states specifically that the Act “extends to every external Territory.” There was the opportunity for the legislature to address issues of extra-territoriality but it did not do so. The second matter is as follows…”
His Honour then proceeded to address a matter which is not relevant because this is not an employment case. In broad terms, however, it is quite plain, from a reading of his Honour’s judgment, that his Honour concluded that there is no basis to imply any grant of extra-territorial jurisdiction and, accordingly, the Act is confined only to operate in the Commonwealth and its territories as defined.
Mr Otti made no submissions contrary to this assertion and it follows, in my view, that the submission ought be accepted and, consequently, that I adopt the views of O’Loughlin J in Brannigan. Accepting that approach, the application plainly will fail and it follows that it can have no reasonable prospects of success.
In any event, as I have earlier noted, other grounds were advanced. Collecting them together, the first concerns the matter of prejudice. The Commonwealth maintains that, having regard to the events (which occurred almost 14 years ago), it would be severely prejudiced if the proceeding were permitted to continue. This is due to the difficulty of identifying or locating any staff or any other witnesses that may have been working at the Nairobi Airport or the High Commission in at the relevant time. It is likely that relevant employees may no longer be employed in Nairobi and may even have left the Commonwealth’s employ altogether.
The evidence indicates that, indeed, that is likely to be the case, so far as the Commonwealth employees are concerned. In fairness to the applicant, a search of employment records may reveal whether these people are still alive and can be tracked down and the existence of the cables would provide some assistance in terms of their recollection. The fact of prejudice alone, I do no think, would otherwise warrant the exercise of the court’s discretion, although I will turn to prejudice in another context in a short time.
I turn now to whether there is a proper explanation for the delay in bringing the proceeding. On this point I accept the Commonwealth’s submission that the applicant has not demonstrated a reasonable explanation for his delay in filing of the proceeding. The evidence demonstrates that the first complaint made by the applicant was in a letter on 1 September 2006 addressed by him to the Kenyan High Commission. There is no explanation for the nine year delay which precedes that and it follows that, putting aside questions of being out of time, in the absence of explanation to justify a delay, that matter is, in my view, fatal.
Finally, there is the question of there being no arguable case. The central allegations concerning detention and denial of civil rights relate to actions of the Nairobi Airport staff, over which the consular office had no control. For a claim of discrimination under the RDA, the applicant must show that he was subjected to an act involving a distinction, exclusion, restriction or preference based upon his race, colour, descent or national or ethnic origin, which had the purpose or effect of nullifying or impairing his recognition, employment or exercise on an equal footing of any human rights or fundamental freedom in the political, economic, social, cultural or any other field or public life.
In short, the case requires proving that different treatment, amounting to contravening treatment, occurred because of ethnicity. The applicant has arrived at a conclusion that he was indeed subject to differing treatment but that conclusion is not supported by any evidence that had he been a white Australian, the High Commission officers would have done something more than they did about his circumstances. Really, his contention appears to be based on an assumption founded on no more than suggestions by unidentified Nairobi Airport staff.
Generally, I note that the applicant’s complaints are vague and that what he really seeks is that an inference be drawn that he was dealt with differently because of his ethnicity. The vagueness of the matter is an issue which, as I have earlier noted, merges into the question of prejudice and delay in that the events occurred a long time ago. It would appear to form part of what could be described as a commonly occurring event, that is, persons being detained at border posts, particularly in Kenya.
I note, for instance, on the night in question, that another party was detained at the same time that the applicant experienced his difficulties being processed at the border point. However, more fundamentally, the fact remains that the evidence itself, as vague as it is, does not demonstrate the necessary facts to get the applicant’s case across the line in terms of those matters that need to be established in order to successfully prosecute an application, even in a conceptual sense. There is nothing in the circumstances from which it can be inferred that he was dealt with other than appropriately by the High Commission officials.
The particular difficulty that I note that the applicant suffered is that, ultimately, the decision to refuse him entry into Kenya was not a decision which was open to be made or influenced by Australian High Commission officials. This entry was a matter for the Kenyan government, a matter over which the Commonwealth had no control and, in my view, cannot be held accountable for. Plainly, the decision was one that was made for reasons best known to the Kenyan authorities but nothing in the conduct alleged against the High Commission staff would indicate that there was any actionable conduct, at least under the RDA, which occasioned the difficulties experienced by the applicant.
In reaching that view, I hasten to add that I have considered the applicant’s case at its highest, with regard to the matters alleged by the applicant and those matters in the cables which are objectively correct. That is to say that I have ignored the observations about the applicant being drunk or drug affected and that he was refused entry for purposes related to his behaviour. In the circumstances, it follows that even if I were wrong in relation to the legal position, then I conclude on the discretionary grounds that I have reached the same view, which is that the application has no reasonable prospects of success.
It is, in my view, an appropriate case that ought be brought to a quick conclusion in order to ensure that neither the applicant nor respondent are put to further unnecessary expense, as might follow if the action were to proceed to trial. The application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burnett FM.
Date: 15 November 2012