Rankin v State Electoral Office - [2008] SAEOT 13

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RANKIN v STATE ELECTORAL OFFICE
[2008] SAEOT 13
Reasons for Ruling of Her Honour Judge Trenorden, Member Ms A Bachmann and Member Mr D Shetliffe
29 October 2008
DISCRIMINATION LAW
Application to amend Particulars of Complaint including relief sought.
Equal Opportunity Act 1984, referred to.

RANKIN v STATE ELECTORAL OFFICE
[2008] SAEOT 13
Background

The Tribunal has before it an application by the complainant, Mr Rankin, to further amend the Particulars of Complaint. That application has been opposed by the respondent, the State Electoral Office.
The complaint made to the Commissioner for Equal Opportunity was in the following terms:
Electoral Commission has in place a policy to prevent individuals with an impairment to vote without the assistance of another in South Australia. This also occurs during Federal Elections. Mr Rankin’s case involves vision impairment. Would like to be provided with a means of lodging an independent vote. Having a friend or relative to vote for him does not guarantee that his vote is given according to his instructions.
The Canberra model provides computer assistance voting. It has a special keyboard and speaks.
He has spoken to the Electoral Commission about this some time ago without success.
Mr Rankin states that he is able to read e-mails and word attachments as he has voice software installed on his computer.
Mr Rankin is visually impaired. He made the complaint on 14 March 2006, that is shortly before the 2006 general election for the South Australian Parliament.
We understand his complaint (set out above) is that he was discriminated against because of his visual impairment, in that the policy of the Electoral Commission would prevent him from lodging an independent vote. Further, he sought to be provided with the means to vote independently through a computer assisted voting system.
On 6 March 2007, Mr Rankin was advised by the Commissioner for Equal Opportunity, that she had decided not to enquire into his allegations because, in her opinion, his complaint was lacking in substance. As was his right, Mr Rankin requested the Commissioner to refer his complaint to this Tribunal.
On 25 March 2008, Mr Rankin dictated, and with assistance filed, a document entitled “Further and Better Particulars” in this Tribunal. The assistance was provided by the Deputy Registrar of the District Court. The document contained a Statement of Complaint, Particulars of Complaint and the Relief/Orders Sought.
The Statement and Particulars of the Complaint are as follows:
STATEMENT OF COMPLAINT
The State Electoral Commission will not provide to a blind or vision impaired voter the means to lodge a private and secret vote, via the means of computer assisted voting i.e the Federal model as utilized in the 2007 Federal Election.
PARTICULARS OF COMPLAINT
1/ Due to the unavailability of electronic voting I wasn’t prepared to utilize electoral staff to assist to make a private vote and thus was disenfranchised from my constitutional right to lodge a private and secret vote like any other member of the community.
We have concluded that in essence, Mr Rankin complained of the policy of the State Electoral Commission with respect to blind and vision impaired voters, in that it failed to provide the means to lodge a private and secret vote, namely computer assisted voting. The particular discrimination suffered by Mr Rankin was that he was unable to exercise a private and secret vote at the 2006 State election.
Mr Rankin was quite clear with respect to the relief he was seeking. He sought the provision of independently accessible electronic voting by the State Electoral Commission to enable him to exercise a secret vote.
The Amendments
The principal amendment proposed would allow for an alternative argument by Mr Rankin, namely that at all material times from March 2006 it was reasonable for the Electoral Commission to have provided braille ballot papers to vision impaired persons to permit them to cast a vote by secret ballot. In addition, Mr Rankin seeks to plead that the Commissioner is required to provide braille ballot papers as an alternative to computer aided voting facilities. A further amendment proposes the addition of the pleading that in the event the Electoral Commissioner has failed to undertake preparatory steps to provide computer aided voting facilities or in the alternative braille ballot papers at the next State election, the failure would constitute a separate and continuing contravention of s 76 of the Equal Opportunity Act 1984.
The proposed amendment also seeks an additional ground of relief, namely an order that the Electoral Commissioner pay compensation to Mr Rankin.
The proposed amendments can be summarised as follows:
An alternative argument that braille ballot papers were not provided at the State general election in 2006.
That the Commissioner has refused or failed to provide services to Mr Rankin where “services” includes the provision of a secret ballot facility.
As an alternative argument, the Commissioner has offered or provided services in a manner which discriminates against Mr Rankin where “services” includes the provision of a secret ballot facility.
That the requirement that Mr Rankin use sighted assistance, as provided for in s 80 of the Electoral Act 1985, to vote in an election was unreasonable and constituted discrimination within the meaning of s 66(b) of the Act.
That in the event that the Commissioner has not undertaken preparatory steps to provide computer aided voting facilities or in the alternative braille ballot papers for the next general State election, there is a separate and continuing contravention of s 76 of the Act.
That there be a further ground of relief, namely that the Commissioner provide compensation to Mr Rankin.
History of the Matter
As we have already said, Further and Better Particulars of the Complaint were filed in the Tribunal on 25 March 2008. An Answer to the Complaint was filed on behalf of the State Electoral Commissioner on 23 April 2008. Mr Rankin first obtained legal representation in early June 2008, as a result of which his Further and Better Particulars of Complaint were amended, pursuant to leave granted on 18 June 2008. An Answer was filed to those amended Further and Better Particulars on 10 July 2008 and Mr Rankin’s solicitors filed a Reply to that Answer on 17 July 2008.
On 20 August 2008, over the protest of Mr Rankin’s legal representative, the matter was listed for hearing on 16 October 2008. The application to amend, the subject of these reasons, was filed on 14 October 2008, but notice had been given in the previous week, to the respondent’s solicitors.
The Equal Opportunity Act
Any person who is aggrieved by an act or omission in contravention of the Equal Opportunity Act may lodge a complaint with the Commissioner for Equal Opportunity: s 93(1). A person may not make a complaint on behalf of any other person unless that other person has consented in writing to the making of the complaint: s 93(1)(a). The complaint must be in writing and set out the details of the alleged contravention and be lodged with the Commissioner for Equal Opportunity: s 93(1)(c).
Where the Commissioner has declined to recognise a complaint as one upon which action should be taken and has been asked by the complainant to refer the complaint to the Tribunal, the Commissioner “must refer the matter to the Tribunal for hearing and determination”: s 95(8)(c).
The power of the Tribunal to make orders, and the nature of the orders that may be made by it, are set out in s 96 of the Act.
The Proposed Amendment of the Complaint
The original complaint made to the Commissioner for Equal Opportunity by Mr Rankin concerned the policy of the State Electoral Commissioner with regard to vision impaired voters, because of its impact upon him. He sought for himself computer assisted voting. It appears to us that the act complained of was the omission by the State Electoral Commissioner to have provided for computer assisted voting for Mr Rankin at the then forthcoming State general election (in 2006). As we have already noted, in the original complaint, Mr Rankin sought for himself, provision of computer assisted voting to enable him to have what has been variously described as an independent or private and secret vote. That is the matter that was referred by the Commissioner for Equal Opportunity to this Tribunal.
By the time the matter reached the Tribunal, the 2006 State general election had clearly passed. Understandably, Mr Rankin’s Particulars of Complaint were in terms which reflected that the event had passed and that in his words, he had been “disenfranchised”.
It is quite clear to us, from reading both Mr Rankin’s original complaint to the Equal Opportunity Commissioner and the Further and Better Particulars comprising his statement of complaint and particulars of the complaint, lodged in this Tribunal, that Mr Rankin was aggrieved in that the State Electoral Commissioner was not going to provide him in 2006 with computer assisted voting in order for him to have an independent or private and secret vote and, after the 2006 election, that he was aggrieved by the failure of the State Electoral Commissioner to provide him with the means to lodge a private and secret vote, namely computer assisted voting.
We have concluded that the matter referred to this Tribunal was not a complaint by Mr Rankin that he was aggrieved by the failure of the State Electoral Commissioner to provide braille voting for him but rather a complaint that he was aggrieved by the failure of the State Electoral Commissioner to provide computer assisted voting to enable him to have an independent or private and secret vote.
It follows that the proposed amendment to allow arguments in the alternative, with respect to braille ballot papers, should not be allowed, as it was not ever part of the matter referred to this Tribunal.
The Proposed Amendment: The Relief Sought
The matter referred to the Tribunal by the Equal Opportunity Commissioner is the complaint of the complainant. The particular complaint will not necessarily include a statement of the relief sought by the complainant. The Equal Opportunity Act gives the Tribunal the power to make specified orders once it has determined that the respondent has acted in contravention of the Act. The powers of the Tribunal include a power to make an order requiring the respondent to pay compensation for loss or damage arising from the contravention: s 96(1)(a).
It is clear to us that the power of the Tribunal to make orders and grant relief would follow from the Tribunal finding in favour of the complainant. While it is open to the Tribunal to make orders and grant particular relief, in the interests of natural justice the Tribunal must give the parties an opportunity to be heard upon the nature of the orders to be made. Thus, the usual course, consistent with fairness, is for a complainant to give notice of the relief it seeks both to the Court and to the respondent, to enable the respondent to know the case it has to meet. That is the basis of Rule 4(1)(iii)(c) of the Equal Opportunity Tribunal Rules 1988.
However, provided there is no prejudice to the respondent or that any prejudice can be overcome, it is open to a complainant to seek to vary the forms of relief he or she seeks from the Tribunal. This follows from our conclusion that the relief sought is not part of the matter that has been referred to the Tribunal.
We would grant the amendment sought to enable the complainant to seek an order that the State Electoral Commissioner pay compensation to Mr Rankin.
Determination
Leave will be granted to the complainant to amend the Further and Better Particulars of Complaint, only to the extent it was sought to add the following under the heading “Relief/Orders Sought”:
An Order pursuant to s 96(1)(a) of the Equal Opportunity Act that the Commissioner pay compensation to Rankin.
There will be an order accordingly.