FEDERAL COURT OF AUSTRALIA
Payne v Long [2019] FCA 1765
File number: ACD 47 of 2017 Judge: PERRY J Date of judgment: 31 October 2019 Catchwords: HUMAN RIGHTS – where applicant alleged that the respondents’ refusal to enrol him into a tertiary course constituted racial discrimination in breach of the Racial Discrimination Act 1975 (Cth) (RDA) – where Australian Human Rights Commission terminated the applicant’s complaint – where the preconditions to the Court’s jurisdiction in s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) to entertain any complaint of disability discrimination are not met – consideration of the principles by which it is determined whether a measure is a “special measure” for the purposes of the International Convention for the Elimination of All Forms of Racial Discrimination and, therefore, s 8, RDA – where the Course for the benefit of Aboriginal people living in remote parts of New South Wales plainly constituted a “special measure” within the meaning of s 8, RDA – application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth) s 159
Racial Discrimination Act 1975 (Cth) ss 8, 9, 13, 18A, 27
Surveillance Devices Act 2007 (NSW)
Technical and Further Education Commission Act 1990 (NSW) s 6
Cases cited: Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451
Bropho v Western Australia [2004] FCA 1209
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
French v Gray [2013] FCA 263; (2013) 217 FCR 404
Gerhardy v Brown (1985) 159 CLR 70
Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450
Maloney v The Queen [2013] HCA 28; (2013) 252 CLR 168
Payne v Davies [2019] FCA 1506
Picos v Australian Federal Police [2015] FCA 118
Picos v Servcorp Limited (No 2) [2015] FCA 343; (2015) 236 FCR 141
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416
Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146
Date of hearing: 12 December 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 115 Counsel for the Applicant: The Applicant appeared in person with the assistance of Mrs Tracey Payne Counsel for the Respondents: Mr D Villa SC Solicitor for the Respondents: Wendy Blacker Lawyers ORDERS
ACD 47 of 2017 BETWEEN: CARL PAYNE
Applicant
AND: IAN LONG
First Respondent
TECHNICAL AND FURTHER EDUCATION COMMISSION TRADING AS TAFE (NSW)
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
31 OCTOBER 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the respondents’ costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 THE PROPER RESPONDENTS
[11]
3 EVIDENCE
[16]
4 BACKGROUND
[21]
4.1 The parties
[21]
4.1.1…
Continue reading Payne v Long
Sign in free to access the full text
Details
- AGLC
- Payne v Long [2019] FCA 1765
- Case
- [2019] FCA 1765
- Decision Date
CaseChat Overview and Summary
The Federal Court considered an application by Mr Payne against TAFE NSW and Mr Long alleging racial discrimination in breach of the Racial Discrimination Act 1975 (Cth) (RDA). The case involved the refusal by TAFE NSW to enrol Mr Payne into a tertiary course specifically designed for Aboriginal people living in remote parts of New South Wales. The Australian Human Rights Commission had terminated Mr Payne's complaint, leading him to challenge the decision in court. The court was required to decide whether the refusal to enrol Mr Payne constituted racial discrimination under the RDA, and if the court had jurisdiction to hear the complaint under section 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth).
The court examined whether the course for Aboriginal people in remote parts of New South Wales constituted a "special measure" within the meaning of section 8 of the RDA. The court considered principles derived from the International Convention for the Elimination of All Forms of Racial Discrimination. The court found that the course was indeed a "special measure" aimed at benefiting a specific group, and thus fell under the exceptions provided in the RDA. Consequently, the court held that the refusal to enrol Mr Payne did not constitute racial discrimination. Additionally, the court determined that the jurisdictional preconditions for entertaining the complaint were not met, as the State of New South Wales was not a proper respondent to the complaint.
The application was dismissed, and the court ordered that Mr Payne pay the respondents' costs as agreed or assessed. This decision underscores the importance of understanding the specific provisions of the RDA and the criteria for what constitutes a "special measure" in the context of racial discrimination claims.
The court examined whether the course for Aboriginal people in remote parts of New South Wales constituted a "special measure" within the meaning of section 8 of the RDA. The court considered principles derived from the International Convention for the Elimination of All Forms of Racial Discrimination. The court found that the course was indeed a "special measure" aimed at benefiting a specific group, and thus fell under the exceptions provided in the RDA. Consequently, the court held that the refusal to enrol Mr Payne did not constitute racial discrimination. Additionally, the court determined that the jurisdictional preconditions for entertaining the complaint were not met, as the State of New South Wales was not a proper respondent to the complaint.
The application was dismissed, and the court ordered that Mr Payne pay the respondents' costs as agreed or assessed. This decision underscores the importance of understanding the specific provisions of the RDA and the criteria for what constitutes a "special measure" in the context of racial discrimination claims.
Orders
Orders of the court
1. The application is dismissed.
2. The applicant is to pay the respondents’ costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Finally, I note that the parties relied upon two further documents. The first, filed on 19 October 2018, set out a table containing statements of alleged facts by the respondents, the applicant’s reply to each statement, and the respondents’ further response (the first consolidated statement of facts). The second document, which was filed on 25 October 2018, set out a table containing statements of alleged facts by the applicant with a separate column setting out the respondents’ response to those allegations (the second consolidated statement of facts). These were received as submissions in which the parties indicated those issues of fact on which they were agreed and those factual issues which were in dispute (T54-56). 4. BACKGROUND4.1 The parties4.1.1Mr Payne It is not in issue that Mr Payne has been a long-term unemployed person for approximately 20 years and has been on Newstart Allowance since mid-2013 (applicant’s statement at p. 1). It is also not in issue that Mr Payne suffers from illiteracy and dyslexia and other stress-related illnesses (first consolidated statement of facts at item 4). Mr Payne also contends that he is “socially and economically disadvantaged, living in a remote rural area 14[km] outside the town of Lake Cargelligo in standards equal to third world conditions. The applicant’s depression, anxiety, adjustment disorder and PTSD came to light and were diagnosed 16 months after being racially discriminated against and victimized” (ibid). The respondents agreed and said that these facts should be taken as admitted for the purposes of the proceedings, but contended that the facts were irrelevant to Mr Payne’s claim to have been discriminated against on the basis of his race (ibid). 4.1.2TAFE NSW As earlier explained, TAFE NSW is established under the TAFE Act. TAFE NSW’s principal function is to provide technical and further education services (TAFE Act, s 6). In exercising that function, s 6 of the TAFE Act provides that TAFE must:(a) ensure that it provides technical and further education services to meet the needs of individuals and the skill needs of the workforce and, in particular, ensure that it provides basic and pre-vocational education as well as vocational education and training, and(b) provide adults and young persons with a range of technical and further education services that recognise the changing nature of the working environment and the need for new skills and re-training, and(c) provide, through formal arrangements and after consultation, technical and further education services that are relevant to the needs of industry, business, students and other client groups, and(d) provide students with the maximum opportunity for progression by the linking or other articulation of courses and programs provided by the TAFE Commission and between those courses and programs and those provided by other education and training providers, and(e) provide educationally or vocationally disadvantaged groups (such as women, Aborigines, persons of non-English speaking background, persons with disabilities and persons in rural areas) with access to technical and further education services, including a range of appropriate specialised services, and(f) consult with relevant agencies to promote the effective and efficient use of resources and co-operation between TAFE establishments and other educational institutions.(emphasis added)4.1.3Mr Long
Evidence
Evidence Before The Court
That notwithstanding, it is plain that the TAFE Commission is the entity which should be the second respondent and that the NSW State Government is not a proper respondent because it was never a party to the complaint in the AHRC. In this regard, s 46PO(1) of the AHRC Act provides that an application may be made to this Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint” and not therefore against other persons, such as the State of New South Wales, who were not respondents to the terminated complaint: see e.g. Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [71] and [78] (the Court). Accordingly, orders were made at the commencement of the trial substituting the Technical and Further Education Commission trading as TAFE NSW for the State of New South Wales as the second respondent (T20.23). 3. EVIDENCE Mr Payne relied on his statement of evidence filed on 16 October 2017 (the applicant’s statement) pursuant to orders made by Jagot J save that he did not ultimately rely upon annexures CP01, CP03 and CP16 to that statement to which the respondents had objected (T26.11-26.35). I note that annexure CP04 to Mr Payne’s statement was a transcript of a telephone conversation between Mrs Payne and Mr Long on 15 June 2016, while annexure CP05 was a transcript of a telephone conversation between Mr Payne and Mr Long on the same day. The respondents initially objected to the receipt of the transcripts in evidence on the basis that the telephone conversations had been recorded by Mr and Mrs Payne without Mr Long’s knowledge or consent contrary to the Surveillance Devices Act 2007 (NSW). Without in any way denying the potential seriousness of such conduct, ultimately the respondents did not press that objection given that they accepted that the transcripts were a faithful record of those conversations (T21.35). In his outline of submissions filed on 4 December 2018, Mr Payne expanded upon the factual allegations made in his statement of evidence. Upon an objection being taken to paragraph [22] of his outline of submissions on the grounds of remote hearsay, Mr Payne conceded that the paragraph “doesn’t matter. Leave it out” (T32.29). Subject to these caveats, the applicant’s statement and the submissions to the extent that they contained allegations of fact were adopted by Mr Payne as true and accurate at the commencement of his evidence (T61) and were received as exhibits A1 and A2 respectively. As I later explain, Mr Payne was cross-examined upon his evidence. It is apparent from his evidence that he feels very strongly that he has been unfairly treated. However, as I later explain, the question of whether he has been treated fairly is not the issue for this Court. Rather, he must establish racial discrimination with the meaning of the relevant provisions of the RDA. The respondents relied upon the affidavit of Mr Ian Long affirmed on 22 January 2018 (the Long affidavit) and tendered a bundle of documents filed on 22 June 2018 entitled the Respondents’ Further Evidence (exhibit R1) addressing indigenous disadvantage in Australia (received subject to relevance (T84.15-21; orders made on 12 December 2018)). Mr Long was cross-examined by Mr Payne in a respectful manner, and gave careful and credible evidence.
Decision
Reasons for decision
The Commission granted leave for Mr Payne to amend the complaint to add further allegations of victimisation in accordance with s 46PA of the AHRC Act. Pursuant to an invitation by letter dated 1 March 2017, Mr Payne was invited to provide further information or comments in support of the complaint alleging victimisation. Mr Payne provided additional information to the Commission on 20 March 2017 including copies of transcripts of his telephone conversations with certain people.4.3 The decision by the delegate of the AHRC President By a notice of termination under s 46PH(2) of the AHRC Act, the Commission advised that Mr Payne’s complaint alleging unlawful discrimination and victimisation under the RDA against TAFE NSW and Mr Long had been terminated under s 46PH(1) of the AHRC Act. The Commissioner’s reasons were set out in a letter dated 10 April 2017 from the delegate of the AHRC President (the delegate) and may be summarised as follows. First, the delegate decided to terminate that aspect of Mr Payne’s complaint which alleged racial discrimination against the respondents under s 46PH(1)(i) of the AHRC Act on the ground that there was no reasonable prospect of the matter being settled by conciliation. In this regard, the delegate found that conciliation discussions facilitated by it with the parties between 12 September 2016 and 27 February 2017 did not result in any agreed resolution of the complaint. Secondly, the delegate found that the allegations of victimisation against TAFE NSW and Mr Long were misconceived and/or lacking in substance and therefore decided to terminate the complaint under s 46PH(1)(c) of the AHRC Act. In this regard the delegate found that:I understand that you disagree with the submissions from TAFE NSW and Mr Long and are very dissatisfied with the nature of the response/s to your complaint.However, overall there is insufficient information before me to support your claim that the respondents have engaged in conduct that could amount to any of the actions provided for in section 27(2)(a)-(d) of the RDA. There is insufficient information to support that in providing their responses to your complaint the respondents have refused to employ you, dismissed you, prejudiced your employment or engaged in any acts that could arguably be seen to constitute intimidation or coercion in relation to you.While I appreciate that you are concerned about the content of the responses, the fact that a respondent has provided a response that a complainant does not agree with, has a different version of events, or has requested that a complaint be terminated does not reach the level of severity required to constitute intimidation or coercion.5. FACTUAL FINDINGS AS TO THE MATTERS THE SUBJECT OF THE COMPLAINT Ultimately the facts in issue were narrow in compass and are identified in my findings below.5.1 Events leading up to the information session for the taking of enrolment applications By way of background to development of the Course, Mr Long had for many years engaged with an Aboriginal community at a small Aboriginal reserve known as Murrin Bridge approximately 15 km by road north of Lake Cargelligo (Long affidavit at [11]). However, Murrin Bridge fell within the TAFE Western region and was therefore not ordinarily serviced by TAFE Riverina which includes the (more proximate) Lake Cargelligo TAFE College.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.