Philip v State of New South Wales
[2011] FMCA 308
•10 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHILIP v STATE OF NEW SOUTH WALES | [2011] FMCA 308 |
| HUMAN RIGHTS – Race discrimination – whether recruitment application was terminated because of his race and accent – no discrimination established – application dismissed. |
| Crown Proceedings Act 1988 (Cth), s.5 Evidence Act 1995 (Cth), s.140 Federal Court of Australia Act 1976 (Cth), ss.14, 23 Federal Magistrates Court Act 1999 (Cth), ss.3, 8, 14, 15.42 Human Rights and Equal Opportunities Commission Act 1986 (Cth), ss.46PO, 46PH, 46PR Judiciary Act 1902 (Cth), s.78B Police Act 1990 (NSW), s.4 Racial Discrimination Act 1975 (Cth), ss.7, 9,15, 18, 18A Federal Magistrates Court Rules 2001 (Cth), r.1.03 |
| Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202 Mandla v Dowell Lee [1983] 1 All ER 1069 |
| Applicant: | VICTOR PHILIP |
| Respondent: | STATE OF NEW SOUTH WALES |
| File Number: | SYG 1759 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 11 & 12 March 2010 |
| Date of Last Submission: | 27 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2011 |
REPRESENTATION
| Advocate for the Applicant: | Mr Friend (solicitor) |
| Solicitors for the Applicant: | Friend & Lu Lawyers |
| Counsel for the Respondent: | Mr Seck |
| Solicitors for the Respondent: | Bartier Perry |
ORDERS
The application, filed on 23 July 2009, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1759 of 2009
| VICTOR PHILIP |
Applicant
And
| STATE OF NEW SOUTH WALES |
Respondent
REASONS FOR JUDGMENT
Application
This Application alleges unlawful discrimination under s.46PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth). Mr Philip claims that the State of New South Wales has engaged in conduct contravening s.9 of the Racial Discrimination Act 1975 (Cth).
The Respondent is the State of New South Wales and falls within the definition of the Crown under s.5 of the Crown Proceedings Act 1988 (NSW). The Crown includes a body representing the Crown in the right of New South Wales: s5(c). The NSW Police Force is established under s.4 of the Police Act 1990 (NSW) and is a body representing the Crown in the right of New South Wales.
The proceedings
The Application, filed on 23 July 2009, seeks the following orders:
1. Compensation for general Compensatory damages in the sum of $140,000.
2. Compensation for loss of income in the sum of $160,000.
3. The Respondent apologise to the Applicants.
4. The Respondents be restrained from continuing or repeating the discriminatory conduct.
5. The Respondents be ordered to pay exemplary damages to the Applicant.
The Grounds of the Application set out in Part B of the Application are as follows:
Racial discrimination in the workplace as set out in the Applicant’s complaint to the Human Rights and Equal Opportunity Commission being a complaint that the complainant was discriminated against by his employer and co employees on the basis of his African race and that he has suffered, loss of past and future wages as a result of the discriminatory conduct of each of the Respondent.
Particulars
1. being refused the offer of employment because of his race.
2. not being afforded the same conditions of work as other employees because of his race.
Evidence
The Applicant, Mr Philip, relies on the following evidence:
a)the affidavit of Victor Philip sworn 3 November 2009;
b)Exhibit A1 – Human Rights and Equal Opportunity Commission complaint form;
c)Mr Philip gave sworn testimony and was cross-examined at the hearing on 11 March 2010 (transcript); and
d)
the Affidavit of Kylee Malinda Brown sworn 11 March 2010.
Ms Brown gave sworn testimony and was cross-examined (transcript).
The Respondent relies on the following evidence:
a)Affidavit of Katherine Elizabeth Faber, Recruitment Officer employed by NSW Police Force sworn 8 October 2009, gave sworn testimony and was cross-examined;
b)the Affidavit of Ms Bailey, Recruitment Officer employed by NSW Police Force sworn 6 October 2009, gave sworn testimony and was cross-examined;
c)the Affidavit of Anthony Warren Malone, together with Exhibit AM1. Inspector/General Manager Police Force Recruitment Branch sworn 10 November 2009, gave sworn testimony and was cross-examined;
d)Exhibit R1 – Statement of HREOC; and
e)Exhibit R2 – Mr Philip’s employment history.
Background
In Mr Philip’s affidavit sworn 3 September 2009, he indicates that he is a permanent resident of Australia. It is his intention and he is eligible to become an Australian Citizen. He indicates that he has been living in Australia for approximately ten years. He was born in Nigeria and is an African. He states that he is black. He is married to a white Australian, Kylie Brown, and have three children aged 5, 3 and 1 at the time that he prepared the affidavit. His first language is Ibo and he learned English from the time he started school at the age of 6. The lessons at school were conducted in both English and Ibo. He indicates that in Nigeria the television stations were broadcast mostly in English as Nigeria is a former British Colony. He claims that he speaks English well and he does not speak with an Australian accent, but rather with an African accent. He further indicated that he speaks English, German, Russian, French, Portuguese, Ibo and Iyeruba to various degrees. He claims that he is most proficient in English and Ibo and speaks German and Russian quiet well. At his home environment, Mr Philip and his wife and three children converse in English.
Prior to immigrating to Australia, the Applicant lived in Germany for approximately three years, where he played professional football (soccer) in the second division. Since immigrating to Australia, he has worked as a concierge and a cleaner. He states that he does not have a criminal record in any country and has never committed a criminal offence. Since arriving in Australia he has completed a TAFE course in Certificate II for Security Guarding and a statement of attainment in hairdressing skills. He has also completed three modules in Engineering – Production Technology (Welding) at Ultimo TAFE.
All of those relevant qualifications are attached to his affidavit.
I rely upon the written submissions of Mr Seck in respect to the background which ultimately results in this matter being brought before the Court. In 2008, the New South Wales Police Force advertised in the Sydney Morning Herald for expressions of interests for the Associate Degree in Policing Practice run by Charles Sturt University, under an agreement with the New South Wales Police Force. It is an associate degree designed to meet the educational needs for entry level police officers by providing the foundational knowledge and applied skills of modern policing. In order to be offered a job as a probationary police officer, the candidate must be of 19 years of age and complete session two of the degree.
Enrolment in the associate degree is a competitive merit based selection process. An Applicant must pass a number of stages, including academic eligibility, professional suitability, a health assessment, physical fitness and physiometric tests, a certificate in first aid, typing and swimming. Submitting an Application does not guarantee a place in the associate degree.
Mr Philip saw the advertisement in the Herald and made enquiries about the position. He then received an information pack from Charles Sturt University, including an admissions eligibility guide. Mr Philip applied to the Charles Sturt University. He received confirmation that he had met the academic requirements by letter dated 31 July 2008.
He then progressed to the next stage to complete the New South Wales Police Forces Professional Suitability assessment. Mr Philip downloaded from the New South Wales Police Force website the NSW Police Professional Suitability Application Form and medical history assessment form. The Application Form required the candidate to provide personal information including background details, previous dealings with the NSW Police Force, any criminal history and certain declarations on various matters. On 29 August 2008, Mr Philip completed, in part, the Application form and returned it to the
New South Wales Police Force. The Application form was incomplete, as some information was missing.
The NSW Police Force recruitment branch conducts professional suitability checks based on the information contained in the Application form. The NSW Police Force used a document headed ‘Internal Working Document – Professional Suitability Checklist’ which sets out various matters and databases that the NSW Police Force refers to in confirming Mr Philip’s background. Ms Mandele Morgan of the NSW Police Force Recruitment Branch commenced a Professional Suitability Check of
Mr Philip on 4 September 2008 by completing some preliminary information. Senior Constable Katherine Fairbrother performed some further checks on 5 September 2008. These checks were recorded on the Professional Suitability Checklist for Mr Philip.Ms Katherine Faber is a recruitment officer with the New South Wales Police Force and has been since 1997. She continued the professional suitability checks on 9 September 2008. Ms Faber examined Mr Philip’s professional suitability Application form and observed that the Applicant needed a security clearance from Nigeria because he spent more than
12 months in another country after the age of 18. He had not provided such a clearance. Ms Faber also noted that the Application Form did not include other necessary information, including witnessing the drug, alcohol and financial solvency declarations.As part of determining the professional suitability of Applicants, the standard practice of the NSW Police Force is to conduct a telephone interview to assess the English language communication skills of the candidate. Good communication skills form part of the inherent requirement of the job of being an operational police officer. These skills include the ability to use appropriate communications so that one can be understood clearly in face to face communication and over the telephone or radio. On the morning of 9 September 2008, Ms Faber contacted
Mr Philip regarding his overseas clearance from Nigeria and to complete his Application form. In obtaining the additional information, Ms Faber also used the opportunity to assess Mr Philip’s communication skills. She completed the document called ‘Internal Working Document’ which sets out a guide in conducting a telephone interview. The head of the recruitment section, Inspector Malone, during cross-examination in this matter, stated that even though he preferred compliance with the guide, it did not constitute a mandatory procedure.Ms Faber asked Mr Philip several questions to complete his form and advised him that he had to obtain an overseas security clearance.
Ms Faber noted that Mr Philip spoke with an accent, and during the conversation expressed his dissatisfaction about the time and cost of obtaining the security clearance. She also noted that Mr Philip became angry and began to speak very quickly. As a result, Ms Faber found that she could not understand large parts of what Mr Philip was saying. Evidence was given by Ms Faber, Inspector Malone and Senior Constable Bailey stating that the practice of the New South Wales Police Force was that the general working documents merely represented a guideline. Where the candidate had not completed the Application form fully, the New South Wales Police Force had a Standard Practice to make an assessment of a candidate’s English language skills as part of the normal conversation in obtaining the relevant information.On the internal working document, the relevant office conducting the interview must identify the “English communication skills” by ticking the appropriate box of whether the Applicant had “excellent”, “satisfactory” or “poor” English language skills. In the case of
Mr Philip, Ms Faber ticked the box marked “poor English language skills, i.e. difficult to understand – refer to team leader”. Ms Faber also ticked the box next to “Applicant has an accent”. In the Working Form Ms Faber recorded a note of her conversation with Mr Philip. She signed and dated the document 9 September 2008 and rated Mr Philip as 3/10. Ms Faber completed the internal working document on the same day as her conversation. Mr Philip does not have a record of the conversation but he claims that he was pleasant throughout and did not become irate. His wife, Ms Kylie Brown, stated to have been at home and heard the conversation.
Ms Faber referred the interview to Senior Constable Bailey to conduct a second telephone interview. Senior Constable Bailey had significant operational and recruitment experience and had acted as Team Leader from time to time. She had worked in the NSW Police Force recruitment branch since 2001.
The NSW Police Force has a standard procedure for another recruitment officer to conduct a second interview with Applicants who had poor or doubtful English assessments to alternate the prejudice by a single assessment which might be unfair, inaccurate, or an unrepresentative sample of an Applicant’s communication skills. In cross-examination, Inspector Malone stated that in controversial cases, matters could be referred to him and even elevated up to more senior officers.
On 9 November 2009, Senior Constable Bailey rang Mr Philip on his mobile phone to conduct a second interview to assess his English language communication skills. At the time of the call, Mr Philip was walking down Illawarra Road, Marrickville. Senior Constable Bailey asked Mr Philip various questions about overseas criminal clearances and his migration to Australia. It is alleged that Mr Philip became agitated and began to speak more quickly. Senior Constable Bailey claimed that he consequently became more difficult to understand. Senior Constable Bailey claims that she explicitly told Mr Philip that she was finding it difficult to understand him and that the NSW Police may have also experienced this same issue. It is alleged that Mr Philip became defensive but the telephone discussion ended. Senior Constable Bailey claims that the phone was cut out but Mr Philip claims that Senior Constable Bailey hung up.
Senior Constable Bailey admitted during cross-examination that she had no independent recollection of her discussion with Mr Philip. She made a file note of her conversation with Mr Philip shortly afterwards in accordance with her usual practice. Mr Philip did not have a record of the discussion.
Senior Constable Bailey completed an individual professional suitability assessment document for Mr Philip. She completed the document on the same day as the second interview. Mr Philip’s details are set out on the top including his CALD background as Nigerian. This identifies that the Applicant had failed English communication. Senior Constable Bailey marked that box. She also ranked Mr Philip’s attitude in Part H.
He received a “2” for “serious” incidents and a “2” for “recent” incident totalling a competitive rank of 4. A two point rating for a category is identified as “serious”. Mr Philip received a “FAIL” for the assessment. Consequently, Senior Constable Bailey wrote “Fail: Adverse”.Senior Constable Bailey concluded that Mr Philip did not have sufficient English communication skills to be a Police Officer and his manner was rude and belligerent. She therefore believed that he would not be suitable to become a police officer. Mr Philip’s Application was rejected on the combined grounds of the failure to meet the English communication skills standards and his attitude. She records her assessment in her file note.
If an Applicant’s English communication skills are the sole reason for failure, the NSW Police Force has a usual procedure not to decline the Application, but to offer the candidate an opportunity to improve his or her communication skills and proficiency. In this case, the NSW Police Force would send a letter to the candidate, suggesting a range of options including NSW TAFE and the NSW Adult Migrant Service. During 2007 – 2009, where Applicants demonstrated inadequate English communication skills during the telephone interview process, the NSW Police Force referred 30 Applicants to the NSW Adult Migrant Service. These Applicants were not rejected but encouraged to improve their skills and to reapply at a later time. However, given that Mr Philip failed for the combined reasons of poor attitude and poor English communication skills, the NSW Police Force declined to progress his Application further. Senior Constable Bailey sent a letter the same day advising him that his Application had been unsuccessful as a result of his failure to meet the NSW Police Force Professional Suitability Standards.
On 21 November 2008, Mr Philip filed a complaint with the Human Rights and Equal Opportunity Commission claiming that he had been discriminated against because of his race. In the reasons he states:
I was denied employment because of my accent which pertains to my ethnic origin.
On 26 June 2009, the Human Rights and Equal Opportunities Commission forwarded Mr Philip a Notice of Termination issued pursuant to s.46PH (2) of the Human Rights and Equal Opportunity Commission Act 1998 indicating that the complaint alleging discrimination under the Racial Discrimination Act 1975 has been terminated under s.46PH(1)(i) of the HREOC Act on the grounds that a delegate of the President was satisfied that there was no reasonable prospects of the matter being settled by conciliation. On 23 July 2009, an Application was filed in this Court.
Jurisdiction
Mr Seck advances the argument that the Applicant’s complaint alleges that “I was denied employment because of my accent which pertains to my ethnic origin” on 9 September 2008. Attached to the complaint is a statement dated 21 November 2008 signed by the Applicant which details of the alleged incident. Section 46PO(3) of the AHRC Act limits the matters that can be the subject of litigation to matters raised in the terminated complaint. It provides:
(3) The unlawful discrimination alleged in the Application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that is subject to the terminated complaint, or;
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Mr Friend contends in para.4 of his submissions that the requirement of s.46PO(3) of the HREOC Act can be excused or waived on the basis of the Federal Magistrates Court’s obligations to proceed with “undue formality” under s.42 of the Federal Magistrates Court Act 1999 (Cth) is misplaced (reference should also be made to s.46PR of the HREOC Act which provides that the Court is not bound by technicalities or legal form). However, these provisions are designed to ensure that the form does not triumph over substance and that justice prevails over technicalities.
Mr Seck submits that s.46PO(3) is not a procedural provision. Mr Friend, on behalf of the Applicant, sought to adjust his case during the hearing. Mr Seck asserted that the Court’s jurisdiction does not permit Mr Friend to expand the scope beyond the boundaries of the original complaint.
Mr Seck submits that the term, ‘unlawful discrimination’ alleged in the Application pursuant to s.46PO(3) comprises two parts:
a)the allegation of conduct constituting discrimination; and
b)the allegation of conduct is unlawful and the Commonwealth discrimination legislation by reference to the relevant provisions alleging to be contravened.
It is a composite test and both requirements must be satisfied. The “unlawful discrimination” alleged in the Application is set out in Part B (reproduced at [3] above). The Applicant claims that the provisions relevant to his claims are ss.9, 15, 18 and 18A of the Racial Discrimination Act. The Application comprises two grounds:
a)The Respondent refused the Applicant employment because of his race; and
b)The Respondent did not afford the same conditions of work to other employees because of the Applicant’s race (ambient that the Applicant was never an employee himself).
Mr Seck contends that it is not plain that these allegations are independent grounds. Both appear to concern the same factual allegations. Mr Friend, on behalf of Mr Philip, does not address the second complaint in his submissions. Once the “unlawful discrimination alleged” is identified, then it must be shown that it is the same or substantially the same as the “unlawful discrimination alleged” in the complaint under s.46PO(a) of the HREOC Act, or arises out of the “acts, omissions or practices” alleged in the complaint under s.46PO(3)(b) of the HREOC Act. If both these requirements are not satisfied, the Court does not have the jurisdiction to hear and determine the complaint.
Mr Seck submits that under s.46PO(3)(a), the “unlawful discrimination alleged” in the legal proceedings must be the “unlawful discrimination alleged” in the complaint: Charles v Fuji Xerox Australia Pty Ltd (Australia) (2000) 105 FCR 573 at [38]. This sub-section requires substantially the identity of both components; that is, the conduct alleged to constitute the discrimination and the alleged contradiction of the specific provision of the Racial Discrimination Act. In this case, the “unlawful discrimination alleged” in the complaint is that the Respondent denied Mr Philip employment because of his accent pertaining to his ethnic origin.
Mr Seck submits that under the Racial Discrimination Act, the term ‘ethnic origin’ is a separate ground to its cogent concept of ‘race’, ‘colour’ or ‘national origin’ and are not used interchangeably (see for example s.9(1) and s.15(1)). In other words, a person’s ethnic origin does not equate to a persons race, colour or national origin. Each characteristic is distinct and stands as independent grounds of complaint. The Respondent submits that the alleged “unlawful discrimination” in the Application is not substantially the same as that alleged in the complaint. Mr Philip’s complaint is an allegation of discrimination on the ground that his accent pertaining to his ‘ethnic origin’.
In the Application, Mr Philip claims unlawful discrimination on the ground of his ‘African race’ and it is submitted that Mr Philip has changed the unlawful discrimination alleged from discrimination on the ground of ethnic origin in the complaint to discrimination on the grounds of race in the Application. The notion of race is not the same as ethnic origin. By changing the alleged characteristics of ethnic origin to race, the Application and the complaint allege different grounds of unlawfulness. This change of legal position is prohibited under s.46PO(3)(a).
Unlike s.46PO(3)(a) which requires a substantial match between the allegations of ‘unlawful discrimination’, s.46PO(3)(b) requires that the unlawful discrimination alleged in the Application ‘arises out of’ the ‘acts, omissions or practices’ set out in the complaint. The starting point of this enquiry must be to identify the specific ‘act’, ‘omission’ or ‘practices’ in the complaint and then determine whether the ‘unlawful discrimination alleged’ in the legal proceedings arises out of the same specific ‘acts, omissions or practices’.
The term ‘arise out of’ denotes that the ‘unlawful discrimination alleged’ must originate or be based upon substantially the same ‘acts, omissions or practices’ contained in the complaint. It is not enough that the matter arises out of the same general allegation; but, rather, there must be a close connection between the complaint to HREOC and what is alleged in the Court proceedings: see Gamma v Qantas Airways Ltd (2006) (supra) at [9]; Trapman v Sydney Water Corporation and Ors [2009] FMCA 942 at [23].
Mr Seck submits that there is an insufficient connection between the ‘acts, omissions, or practices’ alleged in the complaint and the ‘unlawful discrimination alleged’ in the Application. A simple comparison between the two documents highlights some significant differences in the alleged factual matters giving rise to the unlawful discrimination. The complaint identifies the relevant act of Respondent ‘denying’ Mr Philip employment on the basis of accent pertaining to his ethnic origin. By contrast, the Application claims that the ‘unlawful discrimination alleged’ concerns ‘racial discrimination in the workplace’. It is also alleged that: the Respondent was Mr Philip’s ‘employer’; the police officers were Mr Philip’s ‘co-employees’; and the discrimination occurred ‘on the basis of his African race’.
The connection between the unlawful discrimination alleged in the Application and the acts alleged in the complaint is not enough to satisfy the requirements of s.46PO(3)(b). There are fundamental disparities between the Application and the complaint regarding the nature of the relationship between the parties (employer v potential employer), and the alleged prohibited characteristics claimed (race v ethnic origin). Mr Seck submits that the claims made in the Application are not sufficiently similar to support a claim that unlawful discrimination alleged arises out of the same acts contained in the complaint.
Mr Friend contends that the Federal Magistrates Court has jurisdiction to determine this matter pursuant to s.46PO(3) of the HREOC Act.
Mr Philip’s complaint was clearly made on the basis of race.
Mr Friend refers the Court to the decision in Trapman v Sydney Water Corporation [2009] FMCA 942 at [23] where it illustrates that incidents that are before the commission are capable of being determined in the Federal Magistrates Court. Similarly, the decision in Gamma v Qantas Airways Limited [2006] FMCA 11at [9] provides a helpful summary of the law relating to jurisdiction of the Federal Magistrates Court. Mr Friend submits that this is a matter where the same incidents before this Court and the same as before HREOC. The Applicant does not seek to introduce new incidents or acts or omissions to this Court.
Mr Friend contends that the Federal Magistrates Court is not a court of formal pleadings. Section 42 of the Federal Magistrates Court Act provides for procedure without ‘undue formality’. There was no response filed by the Respondent, the issue of particulars of the claim or jurisdiction was not raised prior to hearing, nor was there any request for directions or orders for the provision of further particulars of the claim. The Respondents cannot in those circumstances, having answered the relatively straightforward factual complaint by extensive affidavit evidence, now maintain that the Federal Magistrates Court has no jurisdiction due to an alleged pleading deficiency. In any event, jurisdiction is before the Federal Magistrates Court and is enacted by the whole of the complaint before the Human Rights and Equal Opportunity Commission, which is the complaint of race discrimination, referrable to a specific incident on 9 August 2008.
Mr Seck indicates that the Respondent contends that neither s.46PO(3)(a) or s.46PO(3)(b) have been satisfied. Mr Seck argues that it follows that the Court does not have jurisdiction to consider the complaint as set out in the Application. To the extent that the Court has jurisdiction, it is simply limited to the allegation of discrimination on the ground of ‘accent’ pertaining to the Applicant’s ethnic origin.
Consideration as to Jurisdiction
Prior to Mr Philip entering the witness box, Mr Seck raised a number of objections to the contents of the affidavit sworn on 3 September 2009 which is the primary affidavit. In the HREOC complaint, under the sub-heading “please state the reason” the following appears:
I was denied my employment because of my accent, which pertained to my ethnic origin.
In the evidence given in para.2 of Mr Philip’s primary affidavit relates to his Nigerian national origin. The fact that he is African is merely a reflection of his continental origin, and his colour. Mr Seck’s objection is that the contents of this paragraph is not a matter which is the subject of the complaint to HREOC and therefore has no relevance to these proceedings. Mr Seck acknowledged the issue as to the meaning of ‘race’ and ‘ethnic origin’. Consequently, Mr Seck raised objection to the paragraph and if the paragraph were to be allowed in, it should be subject to the Respondent making submissions on the issue.
In support of this objection, Mr Seck referred to s.46PO(3) of the HREOC Act. That provision provides that the complaint in this Court which was the subject of termination before HREOC must be the complaint which is advanced in these proceedings. There must be the unlawful discrimination alleged in the Application which must be substantially the same or arise from the same acts, omissions or practices. Because the complaint set out in the Human Rights complaint relates to ethnic origin, Mr Seck submits that the matter of his colour, to his continental origin and race are in fact irrelevant matters for the Court and that the Court is limited to the substance of the complaint set out in the document.
Objection was also raised to the third sentence in para.3 which states:
I do not have a criminal record in any country. I never committed a criminal offense.
The basis of the objection is relevance. Mr Seck submits that there is no issue about the Applicant’s criminal record here which will assist in the resolution of the matters in dispute in these proceedings. Mr Friend pressed the statement on the basis that Mr Philip had not yet provided his security clearance from the Nigerian Embassy, and this paragraph explains that he has been attempting to obtain that documentation.
The last objection was to paragraph 12 of the primary Application:
12. I believe that I have been discriminated against, they had not even received all the information they had requested from me before they rejected my Application, and they rejected my Application because I was an African born in Nigeria and presumed I was a refugee.
The objection was based on relevance and whether or not the Applicant believed that he had been discriminated against could not be of any probative value in assisting the Court. The part of the sentence that the Applicant claims:
They rejected my Application because I was African born in Nigeria and presumed I was a refugee.
Mr Seck contends that the issue of whether or not he was African born in Nigeria does not go to the issue of ethnic origin. In the second part it raises the issue:
…and presumed I was a refugee.
In support of his view, Mr Seck referred to the statement that is attached to the HREOC complaint and there is a reference to his refugee status in the affidavit. Given that accent has been the primary, not the sole basis alleged for racial discrimination, any evidence about his refugee status cannot be of any relevance to these proceedings and is clearly not the subject of the original complaint. However, Mr Seck was prepared to concede that the evidence should be allowed in subject to weight and the making of appropriate submissions. I note the subsequent detailed submissions advanced by Mr Seck on this issue and Mr Friend’s response which are referred to above.
Section 14 of the Federal Magistrates Act 1999 (Cth) states:
14. In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Magistrates Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
Section 3(2) of the Federal Magistrates Act provides:
The other objects of this Act are:
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial powers; and
(b) to enable the Federal Magistrates Court to use streamline procedures; and
(c) to encourage the use of a range of appropriate dispute resolution processes.
The authors including Allen Robinson SC, Grant T Reithmuller of the Federal Magistrates Court Practice and the CCH Editors draw particular attention to paragraph 14(d) which they state is in similar terms to s.23 of the Federal Court Act of Australia 1976. Importantly, s.14 simply provides a power to determine matters that are within the jurisdiction of the Court. Where a ‘matter’ involves issues or claims associated with a matter within jurisdiction of the Court, consideration must be given to s.18 in order to determine whether the Court will have accrued or associated jurisdiction with respect to the matter.
It is the learned authors’ view that it is clear that the intention of Parliament is to provide the Court with sufficient powers to completely deal with a matter so as to avoid multiple proceedings. The Explanatory Memorandum states as follows:
25. Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so. This provision is designed to avoid multiple proceedings arising from the same dispute between parties.
The authors refer to the decision in Rasomen Pty Ltd v Shell Company of Australia (1997) 75 FCR 216, where his Honour Drummond J considered the equivalent provisions of the Federal Court of Australia Act 1976, stating that:
“The expression ‘matter’, in the context of sec 22 and 23 of the Federal Court of Australia Act, is a term of wide import. It conveys, in the general context of curially determinable disputes and not just in the special context of sec 76(ii) the Commonwealth Constitution, the notion of a ‘justicable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy’: see Fencott v Muller (1983) 152 CLR 570 at 603 ( a decision on sec 86, in the form it took different from that which it now takes, but in which the majority of the Court said that the ambit of the jurisdiction conferred by the section on the Federal Court depended upon the meaning of ‘any matter arising under any laws made by the Parliament’ in sec 76(ii) the Constitution).
The jurisdiction conferred on this Court by sec 22 and 23 of the Federal Court of Australia Act is jurisdiction to determine the entire controversy involving the parties provided it is a controversy arising under Federal Law. The Court’s jurisdiction can also extend to the determination of related but non-Federal causes of action: see sec 32 of the Federal Court of Australia Act and Fencott v Muller, although the question for present determination involves only causes of action arising under Federal Law in respect of which this Court is given jurisdiction”.
The modern approach to litigation is to discourage interlocutory Applications because they are extremely time consuming and costly: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 per Martin CJ at [2]. A proper pleading must put a Respondent on notice of the case to be met and should sufficiently define the issues for decision so that preparation of the case and hearing can be controlled: State of Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499 per Drummond J at [12]; Dare v Pulham [1982] HCA 70; (1982) CLR 658 per Murphy, Wilson, Brennan, Deane and Dawson JJ at 664.
Rule 1.03 of the Federal Magistrates Court Rules notes the objects of the rules:
1) The object of these rules is to assist the just, efficient and economic revolution of proceedings
2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
· To operate as informally as possible
· To use streamline processes
· To encourage the use of appropriate dispute resolution procedures.
3) The Court will apply the Rules in accordance with their objectives.
The advancement of detailed arguments about jurisdiction during the substantive proceedings without prior notice is significant. The Application filed on 23 July 2009, contained a clear statement of what Mr Philip was seeking. Attached to that Application was a complaint form lodged with the Human Rights and Equal Opportunity Commission and the subsequent notice of termination. On 17 August 2009 a Notice of Appearance was filed by Susan Price of Bartier Perry, indicating that that organisation represented the Commissioner of Police. On 21 August 2009 at the First Court Date Directions hearing, the following orders were made:
1. The Applicant is to file and serve his evidence by 11 September 2009.
2. The Respondent is to file and serve its evidence by 9 October 2009.
3. The matter is referred to a Registrar for mediation not before
9 October 2009 pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth) at the Law Court’s Building, Queens Square, Sydney.
On 22 October 2009, the Court was advised by the Deputy District Registrar of the Federal Court of Australia that the matter was remitted for mediation on that date. The Applicant was present and was represented by Mr Friend, while Ms Price appeared for the Respondent. Mr Price apologised for the non-attendance of a representative of the New South Wales Police Service (who could not make it at the last moment). The Registrar advised that regrettably the mediation was unsuccessful and the matter needed to proceed to final hearing.
The matter was then listed for further directions on 13 November 2009. On 24 November 2009, the Court made further orders that:1. The Applicant to file a further affidavit within fourteen days.
2. The matter be listed for a two day hearing commencing Thursday 11 March 2010 at 10.15am.
I note that the Federal Magistrates Court of Australia website contains the following information in respect of human rights applications :
What form is filed? (Application form)
The Applicant does not need to file an affidavit in support of an Application: sub-rule 41.02A2.
When is this form used?
Federal Matters under the Australia Human Rights Commission Act 1986 relating to complaints under the
· Age Discrimination Act 2004
· Disability Discrimination Act 1992
· Racial Discrimination Act 1995
· Sex Discrimination Act 1984
What is filed in response? (Response Form)
The Respondent does not need to file an affidavit in support of the Response: sub-rule 41.042
Also located on the website under the heading ‘Practice Directions and Notices’ there is a sub-heading:
Pleadings – points of claim
The grounds of an Application must explain briefly the basis on which the orders are sought. In most instances the use of an Application and affidavit will negate the need for pleadings but, where appropriate, pleadings will be ordered. This is particularly so in commercial litigation such as trade practices, copyright and industrial law Applications, and in some complex unlawful discrimination Applications. In such instance an Applicant may attach a pleading by way of points of claim. Such a pleading should observe the requirements of Federal Court Rules, Orders 11 and 12. It should identify in summary form the material facts on which the Applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given.
The Court did not receive a request from the Respondents to pursue any of these avenues in respect of pleadings so the matter proceeded to final hearing on the original Application. I believe matters in this jurisdiction are further complicated by the complaint to the Human Rights and Equal Opportunity Commission being filed by a self-represented litigant without assistance of a legal practitioner.
A significant number of matters that come before this Court have developed along a similar path. The significant issue concerns in terminology used by the self-represented lay individual adopting commonly used language which does not strictly satisfy the more technical structure of the legislation in each term as specific meanings that would not be apparent to the lay person. However, this is the case in this matter as the Complaint Form (Exhibit A1) was completed with the assistance of Mr Stephen Friend of Friend and Co. Lawyers.
This conflict has been previously considered in a number of decisions. In Gamma v Qantas Airways Ltd [2006] FMCA per Raphael FM at [9]
…what one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constituted a different breach of an Anti-Discrimination Act that originally alleged or possibly considered by HREOC. It is also clear that what constitutes the ‘complaint’ is not just the written document, but all the facts and matters that are before the commission prior to the determination. But, the allegation made in proceedings cannot be substantially wider than those initially complained of.
In Vijayakumar v Qantas Airway Ltd (2009) 233 FLR 369 per Scarlett FM at 93-114, whether the facts and issues pleaded were the subject of the terminated complaint:
[93] It appears to me that the case that the Applicant wishes to argue in his Amended Application is significantly different from his original claim.
[94] The jurisdiction of the court to hear the Application is determined by subs 46PO(3) of the Human Rights and Equal Opportunity Commission Act, which says:
The unlawful discrimination alleged in the Application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[95] It is clear that s 46PO(3)(a) requires the Applicant to make the same allegations of fact that he made in the terminated complaint, although he may claim that they bear a different legal character, provided that the legal character now being claimed is not different in substance from that originally claimed (Charles v Fuji Xerox Australia Pty Ltd per Katz J at [38]).
[96] Again, s 46PO(3)(b) allows the Applicant to allege different facts from those alleged in the terminated complaint, provided that those facts are not different in substance. However, the Applicant may claim that the facts now being alleged have a different legal character, even if that legal character is different in substance, provided that the legal character arises out of those facts (Charles v Fuji Xerox Pty Ltd at [39]).
[97] As Raphael FM held in Gama v Qantas Airways Ltd at [9]:
What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the “complaint” is not just the written document but all those facts and matters which are before the commission prior to the determination. But the allegations made in proceedings cannot be substantially wider than those initially complained of.
[98] Thus, the court must begin by considering the “parameters of the complaint” (Hollingdale v Northern Rivers Area Health Service per Driver FM at [10]).
[99] Clearly, in the present case, the court must consider the Applicant’s claim after it was amended and as it was when it was terminated by HREOC on 11th May 2007. In my view, the claim that the Applicant now wishes to bring in the Amended Application and Points of Claim is significantly different, to the extent that it is outside the limits of subs 46PO(3).
[100] The Applicant originally claimed that his disabilities were injuries to his left knee and arm, as well as a sleep disorder. Depression and post-traumatic stress disorder, which he now seeks to claim, were never mentioned in his complaint to HREOC. It is not until the Points of Claim that the Applicant claims discrimination on the basis of these disabilities.
[101] The additional disabilities that the Applicant now claims, and the discrimination directed towards him on that basis, are substantially different from those originally claimed in the terminated complaint. There does not appear to be any difference in the palliative and therapeutic devices and auxiliary that the Applicant claims to have required.
[102] I am therefore satisfied that the unlawful discrimination sought to be claimed in the Amended Application is not the same as, or the same in substance as, the unlawful discrimination the subject of the complaint that was terminated by HREOC. Accordingly, it does not come within the ambit of s 46PO(3)(a).
[103] Further, the Applicant now seeks to rely on a contract between himself and the Respondent subject to the Respondent’s Conditions of Carriage. This was never raised in the claim terminated by HREOC.
[104] The Applicant also seeks to claim in his Amended Application that the Respondent unlawfully discriminated against him in the provision of access to premises on the grounds of his disability and contravened the Disability Standards for Accessible Public Transport 2002. These issues were never raised in the claim terminated by HREOC.
[105] The Applicant’s claim to HREOC alleged that the Respondent had unlawfully discriminated against him in breach of ss 5, 6, 11 and 24 of the Disability Discrimination Act. He refers to those same four sections in his Application filed on 8th June 2007.
[106] He now seeks to widen his case to claim unlawful discrimination contrary to ss 4, 7, 12, 23, 31 and 32 of the Act.
[107] The claim of discrimination in access to premises is made under s 23 and the claim of failure to comply with the Disability Standards for Accessible Public Transport Guidelines is made under s 32 of the Act.
[108] I accept the Respondent’s submission that ss 23 and 24 of the Act are mutually exclusive. Subsection 23(1) relevantly provides:
It is unlawful for a person to discriminate against another person on the ground of the other person’s disability or a disability of any of that person’s associates: …
(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; …
[109] Subsection 24(1) relevantly provides;
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of that other person’s associates: …
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to that other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person …
[110] It follows that the Applicant cannot rely on essentially the same conduct in a claim under two mutually exclusive sections.
[111] The premises which the Applicant claims that were the subject of the Respondent’s refusal to allow him access were constituted by an aircraft on the ground in India. The refusal alleged by the Applicant happened entirely in India, at Mumbai Airport. The Applicant also faces the difficulty in establishing that the Disability Discrimination Act has an extra-territorial effect, which will prove to be an insuperable hurdle.
[112] In my view, leaving aside the question of extra-territoriality for the time being, the facts upon which the Applicant now seeks to bring his claim are not the same or substantially the same as those in the complaint terminated by the Human Rights and Equal Opportunity Commission.
[113] The proposed amendments to the Application are outside the limits of s 46PO(3) of the HREOC Act. Under s 46PO(3):
The unlawful discrimination alleged in the Application:
(a) must be the same as (or the same substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[114] Where the unlawful discrimination alleged does not meet the test in subs 46PO(3), the court has no jurisdiction to hear the Application. As I am satisfied that the unlawful discrimination alleged in the Amended Application and the Points of Claim does not come within the boundaries of s 46PO(3), it follows that granting leave to amend the Application would be futile.
Throughout this period there was no Response filed by the Respondent. The issue of particulars of the claim or the jurisdiction was not raised prior to hearing and nor was there any request for directions or orders. If the complaint was lodged without the assistance of a legally qualified person then the arguments advocating a more informal approach to handling the proceedings would warrant consideration. However, this matter does not fall into that category because Mr Friend prepared or assisted in the preparation of both the complaint to HREOC and the Application initiating these proceedings. I have formed the view that the word ‘accent’ is the specific issue that is key to the complaint and the focus of the evidence. However, the issue of ‘ethnic origin’ raised in the complaint and “African race” on the Application are used in a manner that is contrary to the established authority as to the usage of these terms in a Racial Discrimination Act context. I note Mr Seck’s submission that the issue should be confined to ‘accent’ concession but I believe the Court is required to consider the aspects of ‘ethnic origin’, ‘African race’ and ‘race’ more generally before the matter can be finalised.
Onus of proof
The Applicant, Mr Philip, has the onus of proof in proving the alleged unlawful discrimination: Sharman v Legal Aid QLD (2002) 115 IR91 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48]. The Applicant must prove allegations according to the civil standard of proof established under s.140 of the Evidence Act 1995 (Cth). This provision codifies the common law position in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.361-2 that the strength of evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved, and in particular, by reference to the gravity of the matters in question: Employment Advocate v Williamson (2008) 1111 FCR 20 at [65]; Qantas Airways Limited v Gamma (2001) 167 FCR 537 per Branson J at [128].
There must be a higher ‘degree of persuasion of the mind’ of the existence of facts alleged identified in Briganshaw v Briganshaw to prove the alleged breach of the alleged Racial Discrimination Act: Dutt v Central Coast Area Health Services (EOD) [2003] NSWADTAP 3; State of Victoria v McKenna (1999) 140 IR256 at 181; Sharma v Legal Aid QLD (supra); Qantas Airways Limited v Gamma (supra). The principle reflects the conventional perception that people do not ordinarily engage in serious conduct and that a court should not make a finding that a person has been guilty of such conduct lightly: Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 110 ALR 449 at 449 – 50.
Mr Seck submits Mr Philip has made serious claims of unlawful racial discrimination against the Respondent (and the office concerned).
Mr Philip alleges that senior NSW Police Officers decided to exclude him on the basis of race. These allegations are serious in nature and reflect heavily on the personal character: Sharman v Legal Aid QLD (supra) at 98; Qantas Airways Limited v Gamma (supra) at 573-576. In light of the grave nature of the allegations and the significant consequences on making such adverse findings, the Court must be reasonably satisfied that the evidence is of sufficient strength to support the serious claims made.
The concept of Race, Colour, Ethnic Origin and National Origin
Mr Seck raises the complaint that Mr Philip has used the terms ‘race’, ‘colour’, ‘ethnic origin’ and ‘national origin’ on a loose and interchangeable basis in various documents during these proceedings. Mr Seck contends that each of these terms have independent and precise meanings. Each represents separate grounds of complaint and should not be considered as a single overarching concept. The Commonwealth Act can be contrasted with the Anti-Discrimination Act 1977 (NSW) where s.4 defines the term ‘race’ to include “colour, nationality, descent, ethnic and ethno-religious or national origin” and each of the related concepts being each treated as separate ground. The Applicant’s complaint to HREOC concerns his ‘ethnic origin’. However, Mr Philip’s primary affidavit states that he was born in Nigeria, is African and is black.
Mr Seck submits that Mr Philip is neither consistent nor precise in identifying the attribute alleged to give rise to his claim.Mr Seck acknowledges that the concept of race and the cogent concepts of colour, decent, ethnic origin or national origin as used in the Racial Discrimination Act are unhelpfully not defined in either the Racial Discrimination Act or in the human rights instrument the International Convention on the Elimination of Racial Discrimination on which it is based. Even assuming that Mr Philip can sustain his various claims, it is necessary to examine each alleged ground separately. Unless Mr Philip has proved the particular ground or attribute that is the basis of the action, then his claim must fail.
Mr Friend advances the argument that ‘race’ should be understood under the Racial Discrimination Act in the popular sense, rather than as a term of art. In support of this contention, he referred the Court to the decision in Williams v Tandanya Cultural Centre [2001] FMCA 46; (2001) 163 FLR 203 per Driver FM at [21] where his Honour states:
The word ‘race’ is a broad term. Also, in addition to race, the RDA proscribes discrimination based upon the national or ethnic origins or descent. It will be apparent to anyone with even a rudimentary understanding of Aboriginal culture and history that the Australian Aboriginal is not a single people but a great number of peoples who are collectively referred to as Aboriginals. This is clear from language and other cultural distinctions between Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not simply against discrimination against ‘Aboriginals’ but also discrimination against particular Aboriginal peoples.
Further, the distinction on race, ethnic or national origin is really made of the group regarding itself as being ‘viewed by others as a distinct community of virtues and certain characteristics’: Madla v DowellLee [1983] 2 AC 548. Mr Philip is from a group of African peoples geographically based in Nigeria with a shared culture and geographic origin. He would be popularly regarded as being from the black African race of Nigerian national origin.
Mr Friend submits the term ‘national origin’ is interpreted by the Courts as being distinct from nationality or citizenship: Australian Medical Council v Wilson (1996) 68 FCR 46 per Sackville J where his Honour approved the judgment of Lord Cross in Ealing London Borough Council v Race Relations Board [1972] AC 342, where his Honour held:
There is no definition of national origin in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as ‘a nation’ – whether or not that constitutes a sovereign state.
Mr Friend contends that nationality and national origin are not the same thing. The fact that someone is an Australian Citizen does not detract from his or her national origin. The fact that Mr Philips grew up in Nigeria makes him of Nigerian national origin, speaking with an accent commensurate with that national origin.
Issue of race
Mr Seck, in his written submissions, submits that no Australian court or tribunal has sought to advance a precise or exhaustive definition of ‘race’. Overseas courts have considered the definition of race and eschewed scientific and sociological definition of race. The case law states that race should be understood in the popular sense rather than an anthropological or biological sense: Ealing London Borough Council v Race Relations Board [1992] AC 342; King-Ansell v Police [1979] 2 NZLR 53.
Race is now considered essentially an imprecise and arbitrary social label which is the product of cultural and social construction: see Montague, A. “Man’s most dangerous myth: The Fantasy of Race, 6th Edition, AltaMira Press, 1997, pp.46-48. Even the traditional biological concept of the race based on essential genetic differences has been doubted in recent times and has been abandoned as having any scientific value: see discussion in Long, J.C and Kettle, R.A (2003) “Human Genetic Diversity and the Non-existence of Biological Race”, Human Biology 75, 449 – 71; Marks, J (2007) “Grand Anthropological themes” in American Ethnologist 34 (2): 234.
In King-Ansell v Police (supra), the New Zealand Court of Appeal examined whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity that must be shared by members of the community. Woodhouse J stated (at 536):
…[the] common usage [of the term race] has long enabled constant reference to be made to biologically different peoples as a single race. For example, it is a natural usage of the word to speak of the English race or the Slavs as a race, or the Germans. It is a meaning which concerned, not the genetic process, but which shared characteristics of a social-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations. And when the purpose of language of the Race Relations Act is considered as a whole, I am satisfied the way in which the term is intended to be used.
In other words, the notion of race imports a notion of self-recognition by members of the group that they belong to a particular race. However, to refer to race as commonly understood in the community simply begs the question of taxonomy rather than give context to its meaning.
Mr Philip’s submissions claim that he is from a group of African people geographically based in Nigeria with a shared cultural and geographic origin and would be properly regarded as being from a black African race of Nigerian national origin. Even on its popular meaning, this proposition is a gross over-simplification. Africa is a large continent containing a diverse people of many different ethnic and national origins. Africa does not comprise a single racial group. In North Africa, many people are of an Arabic background. In South Africa there is a significant number of decedents of white settlers and in sub-Saharan Africa there is a diversity of racial and ethnic groups.
It is submitted that to describe oneself as African represents no more than a statement of belonging to, or originating from a continent. The composite term advanced by Mr Philip that he is a ‘black African’ is no more than a reference to his colour rather than his continental origin.
The phrase ‘black African’ does not reflect the significant variants within even black populations in Africa. Mr Philip seeks to dismiss a large number of different ethnic groups and ignore the entire history and tradition of various groups in Africa by adopting superficial labels. In reality, the term ‘black African’ is a convenient, but highly flawed, social construct designed to categorise people by reference to a simplistic notion of race applied by the dominant white group to ‘other’ persons of a different skin colour outside Australia.
Mr Seck contends that no other evidence has been adduced regarding Mr Philip’s actual race other than the blatant attempts to make bare assertions in submissions. At its highest, Mr Philip’s claim that his race is African is simply a statement of self-assessment rather than being shared by persons within the community. It does not meet the test of demonstrating Mr Philip’s race and must be rejected. It is submitted that it would be dangerous to come to an intuitive conclusion about Mr Philip’s race without a proper basis or actual evidence.
Mr Philip must assert his ‘race’ in his claim. It then must be tested to determine whether his race was the ground for discrimination. While a person’s race is not a matter of legal proof, the Court should not speculate about his race or be required to conduct its own enquiries on the issue.
Issue of colour
Mr Seck submits that during cross-examination Mr Philip claimed that his complaint concerns discrimination on the basis of his skin colour as ‘black’ because his photograph was attached to the Application form. The evidence was as follows:
Seck: So your complaint is about the opportunity not to progress in the Application process to even get to the stage of undertaking the degree. Is that correct?
Philip: Yes, the opportunity was not- was not given to me because of the way they treated me because they feel I’m not qualified by looking at my photographs. After they demanded that I should send my photographs to them they look at me and say look, this is not the person they need. That’s why everything goes like that. I mean, if I was given the opportunity before they assess me and they notice that I’m not qualified I will be fine, like I was not given the opportunity because of the – my skin colour.
Seck: Alright, so your complaint is about your skin colour being black. Is that correct?
Philip: That’s right, yes.
(Transcript: 11/03/2010, p.18)
Neither his complaint nor his Application asserts colour as a ground for the alleged unlawful discrimination. Even though the evidence refers to Mr Philip as being ‘black’ and that his wife is a ‘white Australian woman’ (Mr Philip’s primary affidavit, para.2), it is not clear that
Mr Philip presses this ground of complaint. It is noted that the submissions for Mr Philip do not address this matter.
Mr Seck submits that self-evidently, Mr Philip’s skin colour is not controversial. However, the Respondent opposes any change to
Mr Philip’s claim to include colour as a ground (to the extent that such a change is capable of being made during cross-examination). The reference to Mr Philip being ‘black African’ (Applicant’s submissions, para.10 & 17) appears to be nothing more than a simple (ambient flawed) assertion of Mr Philips ethnic origin rather than a reference to his colour as an independent ground of complaint.
Mr Seck contends that the undisputed evidence is that no explicit reference is ever made to Mr Philip’s skin colour during any conversation. Without any express reference to colour, it seems that the ground of colour adds little, if anything, to Mr Philip’s complaint: Velagapudi v Symbion Pharmacy Services Pty Ltd [2006] NSWADT 329; McLeod v Power [2003] FMCA 2 at [28] and [55]. Mr Seck submits that the Court should reject colour as a separate ground of complaint.
Issue of ethnic origin
Mr Seck acknowledges that unlike the term ‘race’, the term ‘ethnic origin’ has been subject to significant judicial scrutiny. Courts and tribunals have held that a collection of people establish an ‘ethnic group’ for the purposes of the term ‘ethnic origin’ where the members of the group must have a social identity, in both their own eyes and the eyes of others in the community: Mandla v Dowell Lee (supra) at 561-565; King-Ansell v Police (supra) at 543; Commission of Racial Equality v Dutton [1989] 1QB783 at 799; Jones v Scully (2002) 120 FCR 243 at 271-273.
Essential characteristics of an ethnic group include shared long standing characteristics drawn from a common history such as customs, beliefs and traditions which the group consciously keep alive and the recognition of a unique cultural condition, including but not limited to family and social customs, manners and religious observance: Mandla v Dowell Lee (supra) at 562. The kind of matters relevant, but not essential to the finding of an ethnic group include a common geographic origin, a common language, a common literature, historical persecution as a minority by a majority and a common religious difference to neighbouring areas: Mandla v Dowell Lee (supra) at 562.
The key basis for the distinction of an ethnic group is that a person’s distinct social identity must be underpinned by shared historical and cultural antecedence as a cohesive group and its continuing recognition of the group’s social practices and observances. The term ‘ethnic origin’ has been found to include Jewish people: Miller v Werthein [2002] FCAFC 156 at [14]; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [47]; Seiks, see Mandae v Dowell Lee (supra) at 560 – 565 and Roma, see Commission of Racial Equality v Dutton [1989] QB 783 at 798 – 802. However, it does not include Muslims, see Nyazi v Rymans Ltd [1988] VAT 86, Carn v Commissioner, Department of Corrective Services [2002] NSWADT 131, or Rastafarians, Dawkins v Department of Environment [1993] ICR 517 on the account that both are religions for a broad range of ethnic groups.
Mr Seck submits that Mr Philip does not identify expressly or precisely his ethnic origin. Assuming that the Application is a claim of unlawful discrimination on the grounds of ethnic origin (even though Mr Philip refers to race), neither of these descriptions meet the conventional definition. The term ‘Black African’ is merely a synthetic description of Mr Philip’s colour and continental origin. It is self-evident that South Africa (or even Sub-Saharan Africa) is not a homogeneous culture but comprises of a large number of social groups with a rich body of diverse customs, beliefs and traditions. African history demonstrates that war and instability has been rooted in ethnic conflicts between blacks such as the case of Rwanda and Sierra Leone.
Mr Seck submits that Mr Philip’s place of birth does not represent a statement of his ethnic identity. Nigeria is a geo-political unit created as an outcome of colonial division of spoils amongst European nations during the nineteenth and twentieth centuries; after it gained independence from the United Kingdom, Nigeria became a nation state exercising a claim to sovereignty over territory. Nigeria exists as an independent polity rather than a single common social group with shared customs and beliefs.
Mr Seck contends that Mr Philip ought to have identified a specific ethnic group to which he belongs. The Central Intelligence Agency Fact Book ( states that Nigeria is comprised of more than 250 ethnic groups, more than nearly any other nation in Africa. The following are the most populous: Hausa and Fulani 29%; Yoruba 21%, Igbo (Ibo) 18%;
Ijaw 10%; Kanuri 4%; Ibibo 3.5% and; Tiv 2.5%. Each of these ethnic groups has its own distinctive social, cultural and linguistic characteristics. Mr Seck acknowledges that Mr Philip claims that he speaks Ibo
(Mr Philip’s primary affidavit, para.2) but language is not a proxy for or evidence of a person’s ethnic origins. It is plain that a person who speaks a language does not automatically assume that language’s historical connection with that ethnic group. For example, a person who speaks English is not necessarily from an English ethnic origin. Rather a person’s language and accent is a product of a complex mix of social, cultural, economic and political factors.Mr Seck argues that without Mr Philip identifying his ethnic origin, the Court cannot make a finding on this issue. In the absence of any proper identification of or evidence of Mr Philip’s ethnic origin, the Court can only speculate about Mr Philip’s ethnic origin. It follows that no finding can be sustained on discrimination on the ground of
Mr Philip’s ethnic origin.
Issue of National Origin
Mr Seck submits that Mr Philip does not refer to ‘national origin’ as a ground of unlawful discrimination in his complaint or in his Application. Mr Philip mentions ‘national origin’ as a ground of his claim for the first time in his written submissions (para.18-19). Mr Philip should not be allowed to change his case during the hearing particularly without seeking formal leave of the Court to amend his Application.
Mr Philip asserts that his national origin is Nigerian founded on the basis that he ‘grew up in Nigeria’ (submissions, para.18). He does not assert that his national origin is Nigerian by virtue of his place of birth. However, no evidence has been adduced of where he grew up although he says that he lived in Germany for two or three years before coming to Australia about ten years ago (primary affidavit, par. 2-3). Mr Philip claims that he speaks with ‘an accent commensurate with his national origin (submissions para.19). Mr Seck contends that national origin refers to a person’s place of birth and the national origin of his or her parents: Ealing London Borough Council v Race Relations Board (supra) at 365- 366; Australian Medical Council v Wilson (supra) at 77; Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 209 – 211; Bropho v State of Western Australia [2007] FCA 519 at 303. Lord Cross stated in Ealing at 365:
There is no definition of ‘national origin’ in the [Race Relations] Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a 'nation'—whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question; but it may also sometimes arise because the parents have made their home among the people in question (emphasis added).
Mr Seck submits that national origin does not refer to a person’s nationality which is a legal status acquired by virtue of citizenship of a country: Australian Medical Council v Wilson (supra at 75); Macabenta v Minister for Immigration and Multicultural Affairs (supra at 210-211); Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455; AB v NSW Minister for Education and Training [2003] FMCA 16 at [13] – [14]; AB v NSW (2005) 194 FLR 156 at 174; Supra v Minister for Transport Services [2006] NSWADT 83 at [42] – [75]. National origin does not emanate from the characteristics developed by virtue of growing up or living in a particular country. It is confined to immutable characteristics acquired or existing at the time of birth: Commonwealth v McEvoy (1999) 94 FCR 341 at 352. A single place fixed at a single point and cannot be altered or acquired by immigration, residency, education, customs, habits or language.
Mr Seck submits that Mr Philip’s assertion that he has a national origin by virtue of growing up in Nigeria is misconceived. Mr Seck acknowledges that Mr Philip has a Nigerian national origin but it is not acquired by his place of residence during his childhood, but by his place of birth.
Characteristics of race/accent
Mr Friend, in his oral submissions, invites the Court to accept that
Mr Philip’s accent was not such that it would be impossible for him or be very difficult for him to be understood in the common acts of working in a workplace. The Court was invited to take this view having had the benefit of hearing Mr Philip give evidence and be cross-examined for a period of about two hours. Mr Friend contends that
Mr Philip gave his evidence in a forthright manner although he was clearly a person who was unfamiliar with court process and court proceedings. Mr Friend acknowledges that Mr Philip has an accent that can be understood but also could be modified or improved if given an opportunity to do so.
Mr Seck submits that Mr Philip’s principle grievance appears to be at the NSW Police Force engaged in unlawful racial discrimination by refusing to progress his Application on the ground of his ‘accent’. His complaint to HREOC expressly claimed that he was denied employment because of his accent which pertained to his ethnic origin. Mr Philip takes this point a step further by submitting that because he grew up in Nigeria, makes him of Nigerian national origin speaking with an accent commensurate with that national origin (submissions para.19). Mr Philip claims, ambient implicitly, that the accent is a characteristic of his race, colour, ethnic or national origin. However, Mr Philip does not expressly address the critical issue of whether a person’s accent can be a basis of claiming unlawful discrimination under the Racial Discrimination Act. This issue encompasses the legal issue of whether the notion of ‘race’ and its allied grounds under the Racial Discrimination Act extends to actual or imputed characteristics of race and the factual question of whether accent is, in fact, a characteristic of race. Mr Seck made detailed written submissions in respect of this issue and addressed the question in the following way.
Does the Racial Discrimination Act extend to racial characteristics?
Mr Seck submits that under the Racial Discrimination Act, the notion of race, origin, ethnic origin and national origin does not expressly extend to the characteristics generally appertaining to people of that race or a characteristic generally imputed to people of that race. The absence of the extension of race to include ‘racial characteristics’ under the Racial Discrimination Act can be contrasted with other federal discrimination legislation. For example:
i)Sex Discrimination Act 1984, ss.5(1)(b) and (c); 6(1)(b) and (c); 7(1)(b)and(c); 7A(b)(ii) and (iii);
ii)Disability Discrimination Act 1992, definition of disability s.4; s.14(b)(ii) and (b)(iii);
iii)Anti-Discrimination Act 1977 (NSW), s.7(2);
iv)Anti-Discrimination Act 1991 (QLD), s.8;
v)Equal Opportunity Act 1984 (SA), s.51(c);
vi)Anti-Discrimination Act 1998 (TAS), s.14(2);
vii)Equal Opportunity Act 1984 (VIC), s.7(2);
viii)Equal Opportunity Act 1984 (WA), s.36(1);
ix)Discrimination Act 1991 (ACT), s.7(2); and
x)Anti-Discrimination Act 1992 (NT), s.20(2).
It is submitted that it is an extension of a prohibited ground aimed to address the stereotyping of a particular group of persons on the basis of actual or imputed distinguishing or idiosyncratic traits: Purvis v The State of New South Wales (2003) 217 CLR 92 at 134; Boehringer Ingelheim Pty Ltd v Dreddrop [1984] 2 NSWLR 13 at 18 and 21; Commonwealth v Human Right and Equal Opportunity (Dopking no.1) (1994) 46 FCR 191 at 207. A characteristic appertaining to a person of a particular status is one that the vast majority of persons of that status have. A characteristic imputed to a person of a particular status is one that the vast majority of persons of that status are believed to have (whether or not it is so).
Mr Seck submits that under State and Territory Anti-Discrimination legislation, there have been a number of cases where a person’s accent has been found to be a characteristic that appertains or is imputed generally to a person of a particular race: Luffyt v Capital Television Pty Ltd (1994) EOC 92 – 557 at 77,067; Campos v Tempo Cleaning Service (1994) EOC 92 – 648 at 77,431- 77, 432; Fernandez v State of New South Wales [1999] EOC 92-989 at [55] – [59]; Ross-Teigan & Anor v Wiltshire & Anor [2002] QADT 6 at 5-6; Chew v Director General of the Department of Education and Training [2006] WASAT 248 at [58]; Perera v Commissioner of Corrective Services [2007] NSWADT 115 at [111] – [113].
Mr Seck submits that Senior Constable Bailey prepared a contemporaneous file note of the conversation (Bailey affidavit, Annexure A) and completed a written assessment of Mr Philip’s professional suitability (Bailey affidavit, Annexure B). She had to rank Mr Philip on a numerical scale that had clear pass and fail benchmarks. Despite these submissions, the evidence clearly indicates that Ms Faber did not follow the internal working document to conduct the first interview. Ms Faber nor Senior Constable Bailey indicated to
Mr Philip that the purpose of the telephone call was to carry out an assessment of his English language skills. On the material before the Court, both interviewers raised issues with Mr Philip with respect to the completion of his professional suitability assessment form and did not make reference to the fact that they were also carrying out an assessment. Consequently, I am satisfied that it has been established that there were flaws in complying with the English language assessment process.However, although the English language assessment process was not adhered to this does not permit an inference to be drawn that the recruitment branch officers base their decision on Mr Philip’s race, colour or ethnic national origin. An individual may make a decision that is completely unmeritorious, capricious or unreasonable but because no cogent reason for the alleged conduct can be shown that the alleged conduct must have occurred on grounds of race, colour, ethnic or national origin: Glasgow City Council v Zafar (supra) at 1662-1663.
Fourth allegation
The fourth allegation brought by Mr Philip was that his accent was used to make an adverse inference that there is a causative connection between the recruitment officer’s decision not to progress his Application and his race, colour, ethnic and national origin. In the submissions advanced by Mr Friend, it implies that the recruitment officers “switched off” once they heard his accent and did not make any further attempt to assess the adequacy of his English language skills.
Mr Seck advances the argument that Mr Philip did not progress to the next stage of his assessment because of his poor attitude, rudeness and aggressive manner. The review of the recruitment officers was that
Mr Philip failed to meet the minimum communication skills standards. The Court was referred to Cronin v Department of Social Security [1992] HREOCA 3 which is the decision of Sir Ronald Wilson after his retirement from the High Court in his capacity as Commissioner of Human Rights & Equal Opportunity Commission.She [the Applicant] speaks with a marked accent, and
Mr McIntyre [on behalf of the Applicant] submitted that, in the context of this issue her accent was the principle factor giving rise to racial discrimination. I am unable to accept the proposition, either as a statement of general principle or in the circumstances of this case. It may often happen that language difficulties will result in apparently differential treatment in a work situation, but it does not necessarily follow that the treatment is unfair or that the reason for it is the race or nation or ethnic origin of the worker.
Emphasis added.
When considering the issue of whether any inference can be drawn in respect to Mr Philip’s accent, this must be done in the context that the NSW Police Force does not automatically exclude persons on the basis of their English language skills alone. Inspector Malone in his affidavit at paras.18-19 indicates:
18. From 2007-2009, police recruitment branch referred 30 Applicants to the Adult Migrant English service (“AMES”) as a result of telephone interviews revealing concerns with English communication skills. None of these Applicants were rejected outright from the professional suitability process due to their concerning English communication skills. These Applicants were sent a letter encouraging them to pursue opportunities to enhance the English language proficiency and to re apply at a later time. At tab 8 of AM1 is a copy of the standard formatted response to Applicant who are assessed as having concerning English communication skills.
19. The NSW PF is an organisation which abides by and promotes equal employment opportunity. The NSW PF recruitment branch conducts targeted recruitment for Applicants from culturally and linguistically diverse and Aboriginal and Torres Strait Islander communities. The NSW PF are committed to increasing the number of police officers from CALD and ATSI backgrounds within our organisation. The Commissioner of Police, Andrew Scipione is fully supportive of such targeted recruitment as can be seen by his address to potential Applicants in the “message from commissioner” printed in the “into the blue” recruitment booklet. Police Recruitment is about diversity – we want a cross section of our community to apply to the officers.
I accept that the Recruitment Branch’s decision was not based exclusively on Mr Philip’s failure to demonstrate adequate English communication skills but rather his abrasive attitude displayed during his telephone interviews. On the material before me, it would appear that Mr Philip would not have been declined to progress his Application based solely on his English language skills or his accent. As I have indicated above, Mr Philip gave evidence before this Court for approximately two hours and during that time there was no need to request Mr Philip to repeat himself because he was not understood due to his accent. Mr Friend, nor Mr Seck nor myself had to ask Mr Philip to repeat any of his evidence because he was not understood due to his accent.
Relief
In Mr Philip’s Application filed in these proceedings he claims relief for:
a)economic loss;
b)non-economic loss;
c)exemplary damages;
d)injunction; and
e)an apology.
Mr Friend seeks compensation for:
a)loss of opportunity; and
b)declaration.
The Australian Human Rights Commission Act s.46PO(4) empowers this Court to order relief arising under this section.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
The learned authors of the Human Rights & Equal Opportunity Commission in their book Federal Discrimination Law chapter 7 indicate the general approach to damages in discrimination cases noting that tort principles apply.
The Full Federal Court discussed the approach to damages under the SDA in the matter Hall v Sheiban. Lockhart, Wilcox and French JJ delivered separate judgments and while there is no clear ratio on the issue of damages, the case has been cited for the proposition that torts principles are a starting point for the assessment of damages under discrimination legislation, but those principles should not be applied inflexibly.
Lockhart J expressed the view that:
As anti-discrimination, including sex discrimination, legislation and case law with respect to it is still at an early stage of development in Australia, it is difficult and would be unwise to prescribe an inflexible measure of damage in cases of this kind and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees with anti-discrimination law. Although in my view it cannot be stated that in all claims for loss or damage under the Act the measure of damages is the same as the general principles respecting measure of damages in tort, it is the closest analogy that I can find and one that would in most foreseeable cases be sensible and sound test. I would not, however, shut the door to some case arising which calls for a different approach.
His Honour went on to say that, generally speaking, the correct approach to the assessment of damages under the SDA is to compare the position of the complainant might have been in had the discriminatory conduct of the Respondent. This approach has been followed in a number of subsequent cases under the RDA: Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 at [89]; Borg v Commissioner, Department of Corrective Services (2002) EOC 93-198, 76,365.
Economic loss
In the Application, Part A – orders sought it states:
2. Compensation for loss of income in the sum of $160,000. [argument advanced]
Mr Friend in his oral and written submissions has not advanced any specific argument addressing economic loss nor has there been any evidence adduced directly to the issue of economic loss. The Court has not been provided with details as to what a member of the NSW Police Force could expect to earn over any nominated term of employment, nor any amount of earnings from alternate employment that would have to be deducted. In these circumstances there is no basis for awarding compensation for economic loss.
Non-economic loss
Mr Philip is a simple simply asserts his subjective feelings. Mr Friend in his oral submissions submits that Mr Philips was and still is upset. Mr Friend invites the Court to accept that observation. The Court was invited to make a finding for Mr Philip by awarding damages for his hurt and upset.
At paragraph 40 of Mr Friend’s written submissions he states:
[40] The Applicant was upset and distressed at the rejection of his Application. He was visibly and genuinely upset at the discrimination whilst giving evidence. He states in his Principle affidavit that his treatment by the recruitment branch made him feel as if he did not belong in Australia. For someone married to an Australian woman Kylee Brown that is grave hurt.
No medical evidence of psychological damage has been adduced on behalf of Mr Philip which is required to establish the basis for damages of this kind: Phillis v Mandic [2005] FMCA 330 per Raphael FM at [24] where His Honour states:
[24] It is often the case that the Courts are assisted in this determination by medical evidence in the form of psychological or psychiatric assessments. Given that it is the effect of the accepted acts of harassment and not the act itself that is relevant, it is appropriate that due regard is had to the expertise of the medical profession.
The circumstances of this case do not involve a serious case of racial abuse and does not fall into the category warranting damages of this nature.
To the extent that Mr Philip claims non economic loss on the basis of aggravated damages, he must demonstrate that the recruitment branch’s manner of conduct justified the award: Elliot v Nanda (1999) EOC 92-988; Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526; (2004) 210 ALR 645, 657 [69] per Walters FM where His Honour stated
[69] In Gray v Motor Accident Commission (1998) 196 CLR 1 ; 158 ALR 485 ; 28 MVR 1, Gleeson CJ, McHugh, Gummow and Hayne JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118 at 149. In the passage, Windeyer J described the difference between aggravated damages and exemplary damages as being:
… that aggravated damages are given to compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment — moral retribution or deterrence.
It has to be shown that the recruitment branch acted high handedly, maliciously, insultingly or oppressively in the act of discrimination: Hall v Sheiban (1989) 20 FCR 217 at [239]. On the material before the Court I am not satisfied that the recruitment branch’s conduct falls into this category that would justify an award of damages under this head.
Exemplary damages
The Court’s power to order payment of money under s.46PO(4) of the Australian Human Rights Commission Act is limited to financial compensation for loss or damage: Frith v Exchange Hotel [2005] FMCA 402 at [99]; Hughes v Car Buyers (supra) at [71]; Font v Paspaley Pearls Pty Ltd [2002] FMCA 142 at 158-167.
Injunction
In the Application, Part A- Orders sought, item 4 states:
The Respondent be restrained from continuing or repeating the discriminatory conduct.
No submissions were made supporting this claim nor has Mr Philip sought to reapply for admission into the NSW Police since his original Application was not progressed. I note the comments of his Honour Drive FM in Howe v Qantas Airways Limited [2004] FMCA 242 at [386] where he said:
The type of orders available to the Court under section 46PO(4) is not exhaustive, however provides an indication of the types of orders that are likely to be considered appropriate by the Court. The Respondent submits that section 46PO(4) does not extend to the making of an order requiring the taking of positive actions in the future, and does not therefore empower the Court to make the order sought by the Applicant. The Respondent submits that if Parliament had intended for section 46PO(4) to extend to orders affecting future conduct, it would have specifically including this type of relief within the provision. For example, this type of order is expressly included in section 87(2)(f) of the Trade Practices Act 1974 (Cth), which enables the court to make an order:
“directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage”.
To be effective, an injunction must maintain the status-quo as it exists prior to the date of cessation of an Applicant’s employment or, the Applicant’s rights, which would, if he is successful in ultimately obtaining an order for reinstatement, include all his entitlements or rights. However, in this matter, Mr Philip was not employed by the NSW Police and the issue of reinstatement or accumulated entitlements do not exist. The Court’s power to issue an injunction against a Respondent is probably also supported by the Court’s implied incidental power to make orders necessary or incidental to its express powers: Skipworth v State of Western Australia & Ors (No.2) [2008] FMCA 544 per Lucev FM at paras.28-38, including its powers to act in matters within it’s jurisdiction (including any associated jurisdiction) as a Court of Law and Equity under s.8(3) of the Federal Magistrates Court Act 1999 (Cth) and under s.15(a) of the Federal Magistrates Court Act with powers to make interlocutory orders, including injunctions. Clearly, none of these issues arise in this matter and there is no justification for the issue of an injunction.
Apology
The learned authors of the Human Rights & Equal Opportunity Commission in their book “Federal Discrimination Law”, chapter 7, indicate the divergent views that have been expressed by the Courts as to the appropriateness of ordering an apology. In Creek v Cairns Post Pty Ltd (2001) 112 FCA 352, her Honour Kiefel J noted that a short apology would have been ordered had the discrimination complaint been made out, as it may have helped vindicate the Applicant in the eyes of her community. Her Honour further noted that the failure of the Respondent to acknowledge that it had acted for racist reasons and the withholding of an apology would have been taken into account in assessing the extent of any injury and corresponding compensation to redress it.
Similarly, his Honour Driver FM in Forbes v Commonwealth [2003] FMCA 140, Cooke v Plauen Holdings Pty [2001] FMCA 91, and Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122, his Honour took into account the Applicants’ entitlement to an apology. However, a different approach was taken in Jones v Toben [2002] FCA 1150 per Branson J at [106] where her Honour expressed the view that it was not appropriate to “seek to compel the Respondent to articulate a sentiment that he plainly enough does not feel”. Her Honour cited with approval the view of Healy J in Jones v Skully (supra) at [245] that “prima facie, the idea of ordering someone to make an apology is a contradiction in terms”.
There are no specific oral or written submissions addressing the issue of an apology to Mr Philip. Further, I accept the submissions made by Mr Seck that ordering the Respondent as the State of New South Wales to apologise would be hollow and meaningless. Unless the Respondent is a natural person, the Courts have declined to exercise their discretion to order legal entities to apologise: Grulke v KC Canvas [2000] FCA 1415 at [4]. Given that the Respondent denied the alleged discriminatory conduct took place, there is not much utility in ordering an apology as it compels the expression of a sentiment that is neither generally believed nor capable of being expressed other than by a real person: Lee v Smith (No.2) [2007] FMCA 1092 at [16].
Loss of opportunity
Paragraph 41 of Mr Friend’s submissions states that Mr Philip claims he should be compensated for his loss of:
The chance of employment in the New South Wales Police Force.
Also claimed in this submission is Mr Philip’s acknowledgement that he had:
No guarantee of eventual employment.
However the political basis for compensation has not been identified nor is there any specific evidence adduced in support of the claim. Assuming that the claim is advanced based on tortious principles (Hall v Sheiban (supra)?) then the claim is based on general damages: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 but the law will not compensate the loss of chance where the claim is speculative in nature: Fink v Fink (1946) 74 CLR 127 per Latham CJ and Williams J at 134-135; Chappel v Heart (1998) 195 CLR 232 per Gummow J at [82].
Mr Philip was participating in a multi staged competitive merit based selection process where he had satisfied the requirements of stage 1 and commenced the second stage of assessment. There was a number of remaining stages that he was required to complete before he would receive an offer for employment. Other than the communication skills requirement Mr Philip had a number of other issues that had to be satisfied before he could progress this stage. Assuming that he had achieved a satisfactory completion at this stage there is any evidence of the value of the loss of chance that he claims and there is no basis a quantum for compensation.
Declaration
In para.39 of Mr Friend’s submissions he seeks a declaration “that the actions of the Respondent were in breach of the Race Discrimination Act but does not specifically articulate the exact terms of the declarations sought. In Commonwealth v Evans [2004] FCA 654 Branson J rejected the submission that s.46PO(4)(a) of the Act authorised the making of the declaration that the terms such as: the Respondent has committed unlawful discrimination on the basis that it was too general in its terms. Consequently, I do not believe that a declaration should be made in this matter.
I certify that the preceding two hundred and seventy-six (276) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 10 June 2011
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