Payne v Long

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.