Rana, Ranjit Shamsher J B v Human Rights & Equal Opportunity Commission

[1997] FCA 416

CATCHWORDS

DISCRIMINATION - review of decision of Human Rights and Equal Opportunity Commission - provision of Disability Discrimination Act 1992 (Cth) applicable to clubs and associations - application of expressio unius est exclusio alterius rule - whether unjustifiable hardship provision of Act exonerates a club or association from an act of discrimination.

Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975) (Cth)

Pearce and Geddes:  Statutory Interpretation
     in Australia 3rd ed

Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161
Houssein v Under Secretary, Department of Industrial Relations     and Technology and Industrial Commission of NSW (1982)
38 ALR 577

No SG 80 of 1996

RANJIT SHAMSHER J B RANA v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and NEPAL AUSTRALIA FRIENDSHIP ASSOCIATION

O'Loughlin J
Adelaide
22 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 80 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

RANJIT SHAMSHER J B RANA
  Applicant
  - AND -

HUMAN RIGHTS AND EQUAL
  OPPORTUNITY COMMISSION
  First Respondent
  - AND -

NEPAL AUSTRALIA FRIENDSHIP
  ASSOCIATION
  Second Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. This matter be remitted to the President of the Human Rights and Equal Opportunity Commission for further consideration in accordance with these reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 80 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

RANJIT SHAMSHER J B RANA
  Applicant
  - AND -

HUMAN RIGHTS AND EQUAL
  OPPORTUNITY COMMISSION
  First Respondent
  - AND -

NEPAL AUSTRALIA FRIENDSHIP
  ASSOCIATION
  Second Respondent

Coram:    O'Loughlin J
Place:    Adelaide
Date:     22 May 1997

REASONS FOR JUDGMENT

The applicant in these proceedings, Mr Rana, lodged a complaint under the Disability Discrimination Act 1992 (Cth)
("the Act") against the Nepal Australia Friendship Association ("NAFA").  At the core of Mr Rana's complaint was his desire to attain membership of NAFA.  It was his case that his application for membership had been unreasonably refused because of a disability that had been imputed to him.  The nature of the alleged disability need not be investigated.  It is sufficient to observe that Mr Rana had, or might have had, a psychiatric condition.

By letter dated 17 May 1996, Ms Elizabeth Hastings, the Disability Discrimination Commissioner ("the Commissioner") wrote Mr Rana informing him that her investigations had revealed that NAFA would allow him to become a member of its organisation.  Her letter continued that as NAFA had demonstrated a willingness to admit him as a member, and that the only barrier to membership was a dispute between Mr Rana and NAFA over a debt, she had come to the conclusion that his original complaint had no substance.  The letter concluded:-

"If you think that my decision is wrong you may require me to refer the complaint to the President of the Commission.  The President or his delegate will review my decision."

Mr Rana was dissatisfied with the decision of Ms Hastings and requested that the matter be referred to the President of the Human Rights and Equal Opportunity Commission ("the Commission") for review.  The basis of Mr Rana's dissatisfaction stems from his personal disputes with Mr Deepak Bista, the one time President of NAFA.  But having regard to the decision that I have reached, I find it unnecessary to explore any of these complaints.  Upon his review, the President decided to confirm Ms Hastings' decision not to continue to inquire into Mr Rana's complaint.  In his Statement of Reasons dated 13 November 1996, the President said:-

"... I have decided to confirm the decision of the Commissioner not to continue to inquire into this complaint.  I am satisfied that the acts complained of are not unlawful, by reason of the following matters:

(a)I am satisfied that the complainant suffers from a disability within the meaning of s.4(1) of the Act, in that he suffers from an obsessive-compulsive personality disorder, and exhibits symptoms of anxiety and depression.

(b)I am satisfied that the decision by the respondent to refuse membership to the complainant constitutes discrimination within the meaning of s.5(1) of the Act.  In my opinion the respondent has, because of the complainant's disability, treated him less favourably  than it would have treated a person without the disability, in circumstances that are the same or are not materially different.

(c)I am satisfied that the history of conflict between the complainant and the members of the respondent has arisen primarily as a result of the conduct of the complainant because of his behaviour which is the result his disability [sic].  In view of this history of conflict, I am of the opinion that it would impose an unjustifiable hardship upon the respondent within the meaning of s.24(2), s.27(3) and s.11 of the Act to require it to extend membership to the complainant."

The President communicated his decision to Mr Rana in a letter of the same date, where he also stated that he was satisfied that Mr Rana's "complaint has no reasonable chance of being upheld".

In his application for an order of review from this Court Mr Rana has challenged the decision of the President.  His amended application refers not only to his complaints pursuant to the Act but also to other complaints made by him under the Racial Discrimination Act 1975 (Cth). It is apparent to me from the papers that have been placed before the Court that Mr Rana's complaints pursuant to the latter legislation are still the subject of inquiry and no decision has been made with respect to them. It is therefore not appropriate for those complaints to be considered by this Court.

Part 2 of the Act is entitled "Prohibition of Disability Discrimination".  Division 1 of Part 2, entitled "Discrimination in Work", commences with s 15 which relates to discrimination in employment.  Subsequent sections deal with discrimination in other areas of the work-place.  Division 2 of Part 2 is entitled "Discrimination in Other Areas".  It commences with s 22 which deals with discrimination in education.  Section 23 deals with discrimination in relation to access to premises.  Under the provisions of s 24 it is unlawful for a person who provides "goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability ...".  Sections 25 and 26 relate to discrimination and accommodation and land respectively.  Section 27 is of particular importance to the outcome of these proceedings.  Sub-section (1) of that section is in the following terms:-

1. It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is not a member of the club or association on the ground of the person's disability or a disability of any of that person's associates:

(a)by refusing or failing to accept the person's application for membership; or

(b)in the terms or conditions on which the club or association is prepared to admit the person to membership."

Sub-section (2) of s 27 deals with discrimination against an "existing member" of a club because of that member's
disability.  One of the identified forms of discrimination against an existing member is that specified in par (c) of the sub-section which refers to:-

"... denying the member access, or limiting the member's access to any benefit provided by the club or association ..."

Sub-section 27(3) qualifies the application of par (2)(c) in these terms:-

1. Paragraph (2) (c) does not render unlawful discrimination where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association."

That is the only provision in s 27 where the words "unjustifiable hardship" appear and it needs to be emphasised that they appear only in relation to the circumstance in which a club denies an existing member benefits that it ordinarily provides.

The balance of Division 2 of Part 2 of the Act deals with discrimination in various areas such as sport and it is not necessary to make any further reference to them.

A person who is aggrieved by an act of discrimination on the grounds of disability may lodge a written complaint:  s 69.  On receipt of the complaint the Commissioner must inquire into
the complaint and endeavour, by conciliation, to affect a settlement of the matter to which the discriminatory Act relates:  s 71.

However, sub-s 71(2) entitles the Commissioner to decide not inquire into an Act if one or more of the eight circumstances referred to in pars (a) to (h) exist.  Ms Hastings did not state which of the provisions in sub-s (2) she relied upon but it would seem reasonably clear that it was par (d).  That paragraph entitles the Commissioner to decide not to inquire where the Commissioner thinks that the complaint is lacking in substance.  It is significant, having regard to the later correspondence from the President, that the Commissioner did not acknowledge in her letter of 17 May 1996 to Mr Rana, either that he had a disability or that a disability has been imputed to him.  Sub-section (5) of s 71 was the provision of the Act, which entitled Mr Rana to require the Commissioner to refer his complaint to the President.  Sub-section (6) of that section obliged the Commissioner to refer the complaint on receipt of a notice under sub-s (5).

Section 101 sets out the powers of the President with respect to complaints that have been referred under sub-s 71(5).  In particular the President may, without holding an inquiry, dismiss the complaint if:-

"(a)the President thinks the complaint is trivial, vexatious, misconceived, lacking in substance or stale; or

(b)the President is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2; or

(c)in a case where some other remedy has been sought in relation to the subject matter of the complaint - the President thinks that the subject matter of the complaint has been adequately dealt with; or

(d)the President thinks that some other appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act; or

(e)in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the President thinks that the subject matter of the complaint has been adequately dealt with; or

(f)the President thinks that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority."

If however, the President does not dismiss the complaint for one or other of the reasons set out in sub-s (1) then sub-s (2) of s 101 requires the President to refer the complaint back to the Commissioner for the Commissioner to continue to inquire into the alleged act of discrimination pursuant to the provisions of s 71 of the Act.

I have already referred to the relevant passages from the President's Statement of Reasons of 13 November 1996 and I have emphasised that his decision was based upon the premise that it would impose "an unjustifiable hardship" upon the Association to require it to extend membership to Mr Rana.  Because of that conclusion the President also stated in his letter to Mr Rana that he was satisfied that the complaint had no reasonable chance of being upheld.  Taken in isolation that latter statement from the letter might suggest that the President thought that the complaint was lacking in substance (see par 101(1)(a)).  However, the Statement of Reasons makes it clear that it was the concept of "unjustifiable hardship" as provided by s 24(2) and s 27(3) which invoked the President's decision.

In my opinion the President dismissed the reference of the applicant's complaint to him for an impermissible reason.  It is therefore necessary for the matter to be sent back to the President for further consideration.

It remains to consider the provisions of s 24 of the Act  which provide as follows:-

"24.(1)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 any of that other person's associates:

(a)by refusing to provide the other person with the those goods or services or to make those facilities available to the other person; or

(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 the 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.

1. This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the
   goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available."

The provisions of s 24 could only be applied to the dispute between Mr Rana and NAFA if it could be said that NAFA "provides goods or services or makes facilities available".  If that were the case and if it was alleged that NAFA discriminated against Mr Rana on the ground of his disability by refusing to provide him with those goods or services, it would nevertheless not be unlawful to discriminate against Mr Rana on the ground of his disability if the provision of the goods or services or the making of facilities available "would impose unjustifiable hardship" on NAFA as the party providing the goods or services or making the facilities available.  If therefore, s 24 applied to the dispute between Mr Rana and NAFA, the Commissioner would have been entitled to refuse to inquire into the act on the ground that the act was not unlawful (par 71(2)(a)).  The President would have been entitled to dismiss the complaint for the same reason (par 101(1)(b)).

It is my opinion however, that s 24 cannot apply to NAFA and Mr Rana by virtue of the express provisions of s 27, and in particular s 27(1), which must be the provision applicable to Mr Rana's circumstances, given that he was an initial applicant for membership, not an existing member as provided for by s 27(2).  The "expressio unius est exclusio alterius" rule - an express reference to one matter indicates that other
matters are to be excluded - is a rule that is to be applied "with caution and only in appropriate cases":  Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161 at 168-169 per Long Innes J. In Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (1982) 38 ALR 577 at 581, the High Court said that the "maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument ..." (see also Pearce and Geddes; Statutory Interpretation in Australia 3rd ed par 4.22).  Bearing in mind those cautions, it seems nevertheless quite clear to me that the presence of s 27 of the Act (and in particular s 27(1)) which deals with clubs and associations such as NAFA, means that its provisions (to the exclusion of the provisions of s 24) are to be treated as those that apply to the complaint made by Mr Rana with respect to the conduct of NAFA.  That conclusion is further strengthened by the nature of the material difference between s 24 and s 27(1).  Specifically, s 24 does not render it unlawful to discriminate if the provision of the goods or services or the making of facilities available "would impose unjustifiable hardship" on the relevant person.  By contrast, s 27(1), the provision applicable to Mr Rana's circumstances, does not provide any such exoneration from an act of discrimination by a club or an incorporated association who refuses a person's application for membership.  I am satisfied that s 24 has no application to the dispute subsisting between Mr Rana and NAFA.  His complaint with respect to NAFA is to be reconsidered within the confines of s 27(1) of the Act.

There will be an order remitting the matter to the President for further consideration in accordance with these reasons.

I certify that this and the preceding     pages are a true and correct copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.

Associate:

Dated:

Applicant Appears in Person

Counsel for the First Respondent  :    Mr I Clyde
Solicitor for the First Respondent    :    Human Rights and Equal
  Opportunity Commission

No Appearance by Second Respondent

Date of Hearing                  :    5 February 1997