Reilly v The Commonwealth - [2013] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
REILLY v THE COMMONWEALTH
[2013] SAEOT 4
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
22 February 2013
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - RACIAL DISCRIMINATION
Complaint made alleging discrimination on the basis of race - whether the Commonwealth is bound by the Equal Opportunity Act 1984 - consideration of the Acts Interpretation Act 1915 - Tribunal has no jurisdiction - complaint dismissed.
Equal Opportunity Act 1984 (SA); Acts Interpretation Act 1915 (SA), referred to.

REILLY v THE COMMONWEALTH
[2013] SAEOT 4

Mr Reilly made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) on or about 30 November 2011. Mr Reilly complained of discrimination against him on the basis of his race in the context of his employment at the Department of Health and Ageing.
The Commissioner referred the complaint to this Tribunal pursuant to s 95B of the Equal Opportunity Act 1984 (SA) (“the Act”). Initially the respondent named in the matter was “Department of Health and Ageing”, however, the Department is an emanation of the Commonwealth with no separate legal personality, so the Tribunal made an order substituting the Commonwealth as the respondent, with the consent of Mr Reilly.
This decision concerns a preliminary point raised on behalf of the Commonwealth. The Commonwealth asserts that the Act does not apply to it.
The Commonwealth’s argument on Jurisdiction
The Act was passed in 1984. In s 7, the Act says:
This Act binds the Crown.
The term “the Crown” is not defined in the Act.
Mr Begbie, who appeared for the Commonwealth, succinctly and clearly set out the argument that the Commonwealth was not intended to come within “the Crown” in s 7 and is not bound by the Act in his outline:
The EO Act binds “the Crown” in right of the State
12. Section 7 of the EO Act provides that the Act binds “the Crown”. The term “Crown” is not defined in the EO Act. Nor is it generally defined in the Acts Interpretation Act 1915 (SA) (AI Act SA)). As a result, the applicable starting presumption is that the EO Act binds the State only, rather than the State and the Commonwealth: see, for example, Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 10-11, 26-27 and 29, Commonwealth v Bogle (1953) 89 CLR 229 at 255, 259, Paliflex Pty Limited v Chief Commissioner of State Revenue (2009) 219 CLR 325 at [19]-[20]. Accordingly, in order to ascertain whether the Commonwealth is also bound by the EO Act, it becomes necessary to consider the principles of statutory interpretation which apply to the question whether legislation evinces an intention to bind the Crown in the right of the Commonwealth.
High Court authority requires a clear intention to bind the Commonwealth
13.    In 1984, when the EO Act was introduced, there was a well-recognised rule of statutory construction that the Crown would only be bound by a statute if it was “expressly named therein” or there was a necessary implication “manifest from the very terms of the statute” that the legislature so intended: see the High Court decisions in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 116; Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 and China Ocean Shipping Co v South Australia (1979) 145 CLR 172, all of which followed the leading UK authority of Province of Bombay v Municipal Corporation of Bombay [1947] AC 58.
14.    However, in 1990, in Bropho v Western Australia (1990) 171 CLR 1 (Bropho), the High Court took the view that the presumption should be applied more flexibly and that the legislature could demonstrate its intention to displace the presumption more readily than had previously considered to be the case. However, the plurality observed (at 23) that it may be necessary, in construing a legislative provision enacted before the decision in Bropho and after the decision in Province of Bombay, to take account of the fact that the stringent tests in the latter case for determining “necessary implication” were seen as being “decisive” and of “general application” at the time when the particular provision was enacted.
15.    The EO Act having been introduced at a time when consistent High Court authority required the clearest of indications that the Commonwealth would be bound, it would not readily be inferred that the EO Act was intended to operate in that way. As will be seen, a consideration of the text and purpose of the legislation reveals that there is no basis upon which to conclude that the EO Act was intended to apply to the Commonwealth. Indeed, there is considerable support for the contrary conclusion.
Section 20 of the AI Act (SA) requires the same approach
16.    The fundamental shift in approach which was brought about in Bropho in 1990 is explicitly reflected in s 20 of the AI Act (SA) which relevantly provides as follows:
(1)Subject to subsection (2), an Act passed after 20 June 1990 will, unless the contrary intention appears (either expressly or by implication), be taken to bind the Crown, but not so as to impose any criminal liability on the Crown.
(2)Where an Act passed after 20 June 1990 amends an Act passed before that date, the question whether the amendment binds the Crown will be determined in accordance with principles applicable to the interpretation of Acts passed before 20 June 1990.
…
(5)    For the purposes of this section –
(a)a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity …
17.    Thus, it is clear from ss 20(1) and 20(5)(a) that a South Australian Act passed after 20 June 1990 will bind the Crown in right of the Commonwealth, unless the contrary intention appears. However, as the EO Act was passed in 1984, these provisions do not apply. As s 20(2) implicitly recognises, when considering whether such an Act was intended to bind the Crown, regard must be had to the principles which were applicable to 20 June 1990 (ie Bradken, Province of Bombay etc). Additionally, as s 20(5)(a) implicitly recognises, references to “the Crown” in South Australian legislation prior to 20 June 1990 did not, themselves, extend to the Commonwealth.
The language of the EO Act reveals that the Commonwealth is not bound
18.    A consideration of the provisions of the EO Act as a whole reveals many aspects of the legislation which are clearly intended to apply only to the Crown in right of the State of South Australia and not to the Crown in other capacities.
The Act applies specifically to South Australian “Government” and “Councils”
19. The EO Act makes it unlawful to discriminate in the provision of certain specified “services”, which include services provided by South Australia, but not the Commonwealth. Thus the exclusive definition of “services” in s 5(1) includes “(j) services provided by a Government department, instrumentality or agency or a council”. That this is intended to be limited to South Australia, not the Commonwealth, can be seen from the following:
a.The term “council” is defined in s 5(1) as meaning “a council constituted under the Local Government Act 1999”, making it clear that it is only South Australian councils that are covered.
b.The term “Government department” is defined in s 4(1) of the AI Act (SA) as meaning “an administrative unit of the Public Service”. The term “Public Service” is in turn defined as meaning “the Public Service under the Public Sector Act 2009”, making it clear that the Commonwealth public service is not included.
20.    If the EO Act was intended to apply to the Crown in right of the Commonwealth, it might be expected that the EO Act would make it unlawful for discrimination to occur in the provision of Commonwealth government services as well as State government services. The fact that it does not so provide is a clear indication that it has been drafted on the basis that it is not intended to so apply.
The sexual harassment prohibitions focus upon certain South Australian officials
21.    Section 87 makes it unlawful to engage in sexual harassment in certain employment situations. It contains prohibitions dealing specifically with certain South Australian officials as follows:
a.judicial officers – s 87(6a): It is clear from the references to “Chief Judge” and “Supreme Court” in s 93AA(8)(a) that s 87 is only intended to apply to State judicial officers.
b.members of Parliament – s 87(6c): It is clear from the references to “Speaker of the House of Assembly” and “President of the Legislative Council” in s 93AA(8)(b) and (c) that s 87 is only intended to apply to State parliamentarians. This conclusion is further reinforced by s 5(1) of the EO Act and the definition of “parliament” in s 4(1) of the AI Act (SA).
c.members of council – s 87(6e): As noted above, a “council” is here limited to a South Australian council.
22.    Again, the State-specific limitations in each case suggest that the legislature never intended that the EO Act would apply to the Commonwealth.
Other matters confined to South Australia
23. The EO Act contains other provisions which are State-specific. For example, it defines a medical practitioner as a person “who is registered in this State” as such: see s 5(1). It also contains an exception in s 78(2) for certain superannuation schemes under which the majority of members reside outside of South Australia. Such provisions reinforce a State-specific focus which would be inconsistent with an intention that the EO Act would apply to the Commonwealth.
“Employers” do not include the Commonwealth
24. Numerous provisions of the EO Act regulate the conduct of employers: see eg ss 30, 52, 67, 85B, 85V, 87(7). “Employer” is defined “in relation to the holder of a public or statutory office” as meaning the Crown: s 5(1). Given the presumption that “the Crown” must refer to the State, and given the consistent focus upon State (not Commonwealth) officer holders and individuals elsewhere in the EO Act, this must be understood as indicating that the Act was never intended to apply to the Commonwealth as an employer. Put another way, the legislature could readily have made clear that Commonwealth statutory office holders were included in the concept of “employer” – it did not do so.
Criminal sanctions in the EO Act would not be meant to bind the Commonwealth
25. The EO Act depends on criminal sanctions to give effect to the scheme in the Act. For example, there are offences for failing to comply with a requirement of the Commissioner, including to attend conciliation (s 95(4)), failing to produce documents when requested by the Commissioner (s 94(3)), failing to comply with an order of the Tribunal (s 96(4)) and obstructing the Commissioner in the performance of duties (s 102).
26.    It has long been accepted that the clearest of statutory indications is required before making the Commonwealth subject to criminal offence provisions: see for example Cain v Doyle (1946) 72 CLR 409 at 425. This principle finds modern statutory restatement in s 20 of the AI Act (SA).
27.    Accordingly, the fact that the scheme relies in such large measure on criminal sanctions is a strong factor pointing to the conclusion that it is not intended to apply to the Crown in right of the Commonwealth: see Telstra v Worthing (1999) 197 CLR 61 at [22]-[23] and Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 (Cth v ADT) at [148], [151], [181] and [187].
Orders open to the Tribunal would not be meant to bind the Commonwealth
28.    The Tribunal has the power to make a range of orders, including orders that a person refrain from doing an act or that they perform a specific act: s 96(1). This may include orders which could not have been intended to have been made against the Commonwealth. For example, the power to order a person to do an act could be said to be available to order reinstatement of a dismissed employee: see Australian and New Zealand Equal Opportunity Law and Practice at para 87-280. In Cth v ADT (at [188]) the fact that the Tasmanian legislation permitted the Tribunal to order the reinstatement of an employee was held to indicate that the legislation did not bind the Commonwealth.
The purpose of the EO Act does not require that the Commonwealth be bound
29.     The introductory words to the EO Act state that it is:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; …
30.    There is nothing about this fundamental purpose which requires that the Commonwealth also be bound by the EO Act. The EO Act could achieve its intended purpose by operating in the State-specific manner described above. This is all the more so given that there is ample regulation and redress available in relation to complaints of discrimination by the Commonwealth: see for example the Racial Discrimination Act 1975; the Sex Discrimination Act 1984; the Age Discrimination Act 2004; the Ombudsman Act 1976 and the Public Service Act 1999. In the Second Reading speech for the introduction of the Bill to the EO Act, the then Attorney-General explicitly recognised that the EO Act was being introduced in the context of the parallel Commonwealth anti-discrimination legislation.
31.    As a result, the EO Act provides a marked contrast with the Aboriginal Heritage Act 1972 (WA) considered by the High Court in Bropho. The purpose of that legislation was to protect significant Aboriginal sites at all places in Western Australia and significant objects irrespective of where found or situated in the State. As 93% of the State was owned by the Crown in right of Western Australia, the High Court held that the Act would be “extraordinarily ineffective” if it did not bind the State itself (per the plurality at 24) and that such a reading would “eviscerate the Act” (per Brennan J at 28).
CONCLUSION
32.    The EO Act does not provide a clear intention (of a kind which the legislature would have understood as being necessary in 1984) that it is intended to apply to the Commonwealth. On the contrary, it contains clear indications that it is intended only to bind the Crown in right of South Australia. Nothing about the purpose or context of the EO Act points away from that conclusion. Accordingly, the EO Act must be understood as not binding the Commonwealth. As a result, the Tribunal does not have jurisdiction to deal with the present complaint.
Mr Reilly’s argument
Mr Reilly appeared on his own behalf. Mr Reilly argued that the Act is beneficial legislation and as such ought to be given a liberal construction.
Mr Reilly relied upon s 7 of the Act, together with s 4 of the Acts Interpretation Act 1915 (SA), which provides, in part:
His Majesty or Her Majesty, the King or the Queen or the Crown means His Majesty the King, or Her Majesty the Queen, Sovereign for the time being of Australia, and includes the predecessors and heirs and successors of the King or Queen.
Mr Reilly also relied upon s 20(5)(a) of the Acts Interpretation Act 1915 (SA), which we will quote here in the context of the whole section:
20—Rules of construction to be applied in determining whether an Act binds the Crown
…
(5) For the purposes of this section—
(a)a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity;
…
Mr Reilly overlooked the words “For the purposes of this section” in s 20(5). The Acts Interpretation Act 1915 (SA) does not assist Mr Reilly, for the reasons outlined in Mr Begbie’s submissions.
Mr Reilly sought to rebut Mr Begbie’s submissions with respect to the specific references in the Act to South Australian “Government department” and “councils” by highlighting areas of the Act which do not involve those entities. Mr Reilly also sought to explain areas of the Act by reference to certain current administrative arrangements between the Commonwealth and the State.
Whilst understandable from Mr Reilly’s point of view, these are not permissible approaches to statutory interpretation. Likewise, Mr Reilly’s understanding that the ILO Convention No. 111 assisted his argument is misconceived.
Conclusion
We accept the submissions on behalf of the Commonwealth. We reject Mr Reilly’s arguments. The Equal Opportunity Act 1984 has no application in this matter and this Tribunal has no jurisdiction. Mr Reilly’s complaint will be dismissed.