State of Victoria v Macedonian Teachers Association of Victoria

[1999] FCA 1287

FEDERAL COURT OF AUSTRALIA

State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287

DISCRIMINATION LAW – Direct discrimination – Directive by State Premier to Ministers re description to be accorded to Macedonian language – Reason for directive to promote peace and harmony – Contravention of Racial Discrimination Act 1975 (Cth) s 9(1) – Conduct alleged to be unlawful – Test to be applied – True basis of alleged act of discrimination – Interpretation of “based on” – Whether requires relationship of cause and effect – Standard of proof to be applied – Briginshaw principle.

Racial Discrimination Act 1975, s 9(1)

Briginshaw v Briginshaw (1938) 60 CLR 336 considered
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 considered
Department of Health v Arumugan [1988] VR 399 distinguished
G v H (1994) 181 CLR 387 considered
Bacon v Victoria (unreported, Supreme Court of Victoria, 7 November 1997, Beach J) cited

STATE OF VICTORIA v MACEDONIAN TEACHERS ASSOCIATION OF VICTORIA INC & ANOR
V 14 of 1999

O'CONNOR, SUNDBERG & NORTH JJ
16 SEPTEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 14 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF VICTORIA
Appellant

AND:

MACEDONIAN TEACHERS ASSOCIATION OF VICTORIA INC
First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent

JUDGES:

O'CONNOR, SUNDBERG & NORTH JJ

DATE OF ORDER:

16 SEPTEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA  DISTRICT REGISTRY	V 14 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF VICTORIA
Appellant

AND:

MACEDONIAN TEACHERS ASSOCIATION OF VICTORIA INC
First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent

JUDGES:

O'CONNOR, SUNDBERG & NORTH JJ

DATE:

16 SEPTEMBER 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal by the State of Victoria against the decision of Justice Weinberg made on 24 December 1998. Before his Honour was an application for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) brought by the first respondent, Macedonian Teachers Association of Victoria Inc, against a decision of the Human Rights and Equal Opportunity Commission (the Commission). The Commission dismissed a complaint brought by the Australian Macedonian Human Rights Committee Inc against the appellant, the State of Victoria. His Honour set aside the decision of the Commission and remitted the matter to the Commission for determination in accordance with law.

2. The complaint alleged a contravention of s 9(1) of the Racial Discrimination Act 1975 (Cth) (the Act) which provides:

   “Racial discrimination to be unlawful

   9.  (1)   It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

3. The act which was alleged to give rise to the contravention was the publication of a directive by the Premier of Victoria to Ministers of State in Victoria on 21 July 1994 which required that persons from the Former Yugoslav Republic of Macedonia be referred to as Slav Macedonians and their language be referred to as Macedonian (Slavonic).

4. The Commission found that the reason for giving the directive was to ease communal tensions which had arisen between the Greek community and the community from the Former Yugoslav Republic of Macedonia after the federal government had recognised the Former Yugoslav Republic of Macedonia.  After referring to an extract from the reasons of the Commission his Honour said:

   “What emerges plainly from the Commissioner’s reasoning as set out above is that he construed the phrase “based on” in s 9(1) of the Act as being equivalent to other expressions such as “by reason of” or, “on the ground of”, commonly found in other anti-discrimination legislation.   Those other expressions, not surprisingly perhaps, have generally been held to connote a requirement that there be a causal nexus between the prescribed characteristic and the impugned conduct.  The principal issue raised by the applicant in the application before the Court is whether that is a correct interpretation of the phrase “based on” in the context of s 9(1) of the Act.”

5. His Honour determined that the phrase “based on” in s 9(1) encompassed the meaning of “by reference to” rather than the more limited meaning of “by reason of”.  His Honour therefore concluded that the Commission had erred in the interpretation of the section.  The consequence was referred to by his Honour thus:

   “Had the Commissioner construed the words “based on” in s 9(1) as though they meant “by reference to”, it is possible that he would have been satisfied that the complainant had discharged the onus which it bore in relation to the first element of the subsection.”

6. Therefore his Honour set aside the decision of the Commission and remitted the complaint for further hearing.

7. The grounds of appeal against his Honour’s decision were limited to a challenge to the construction of s 9 adopted by his Honour.  The written submissions and oral argument of the appellant were similarly limited.

8. We agree with his Honour’s construction of s 9 and with the reasons he has given for that construction.  As the reasons are so comprehensive and detailed it would be needless duplication for us to formulate separate reasons.  We are content to adopt the reasons expressed by his Honour.  It follows that the appeal will be dismissed with costs.

9. His Honour also determined several subsidiary arguments.  These were not the subject of the Notice of Appeal or of any written or oral submissions.  It is therefore not necessary or appropriate that we deal with those arguments.

10. However, before his Honour the first respondent contended that the Commission had erred in applying the principle outlined by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 to the determination of the issue which it decided. The argument was rejected, and it was held that the Briginshaw test applies to the determination of the existence of unlawful discrimination under s 9(1) because:

    “It is no badge of honour for any government to be found to have contravened a provision of an anti-discrimination statute.”

11. His Honour further concluded that the Commission had correctly applied that test.

12. The first respondent filed a Notice of Contention challenging this aspect of his Honour’s decision.  As the matter must be determined again by the Commission, we consider we must express our views on the matter even though full argument on the issue was not presented.

13. The test stated by Dixon J in Briginshaw (at 361-363) is as follows:

    “Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.   But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inference.  Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency … It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” …   This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability.   It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”

14. His Honour in this case rightly observed that there is no third standard of proof, established by Briginshaw (above) and that the appropriate standard in a case such as this is the balance of probabilities.

15. The Briginshaw test only becomes relevant when, because of the seriousness of the allegations being made in relation to an issue to be determined in a particular case, a decision maker must proceed with caution in arriving at a state of satisfaction.

16. His Honour relied on a number of authorities to support his conclusion that the test should be applied in the present case, and that the Commission had not erred in so doing.

17. He relied on Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, where Drummond J said that in the case before him the Commission must have “sufficient material to show there was more than a remote possibility of a well-founded claim”, and then concluded that a finding of unlawful conduct could only be made if it were proved “to the standard” referred to in Briginshaw.   Drummond J did not, however, in his reasons for judgment refer to the particular circumstances of that case which had led him to that conclusion.

18. His Honour also relied on Department of Health v Arumugan [1988] VR 399 where Fullagar J applied the Briginshaw test,  “requiring the degree of satisfaction to be up to the seriousness of the allegations in all the circumstances”.   In that case two prominent and highly qualified medical practitioners holding positions of trust, whose task it was to select the most qualified person for public office where medical competence was required, were accused of using racist criteria in carrying out a selection process.  That case required for its determination a finding of “deliberate” discrimination against one section of the community in order to favour another.   His Honour considered that such a conclusion would, if found to be true, be deserving of wide condemnation for such a lack of probity in office, and in such a case the Briginshaw principle would apply.  We agree with that conclusion.

19. However in G v H (1994) 181 CLR 387 Deane, Dawson and Gaudron JJ said at 399, when considering the application of the principle to the case before them, that “due regard must be had to the nature of the issue involved” because not every case involves issues of importance and gravity in the Briginshaw sense.  They said “the need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing”.   In that case the issue involved the paternity of a child, and it was held that the principle had no application.

20. In this case the complainants did not make, and did not need to make, any “serious allegations” against the respondent, and they submitted to the Commission that it should confine itself in its determination to an examination of the effect of the directive given by the respondent in the terms of s 9 of the Act without considering the motives of the government.

21. In the present case it is not necessary to make a finding of “deliberate” discrimination against one section of the community in order to favour another section, and the probity of the Victorian government is not in issue. The mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test.   We disagree with his Honour’s conclusion that the absence of intention to discriminate does not significantly diminish the gravity of any such finding.   As the first respondent submits, there are many examples of governments being held to have discriminated unlawfully against individuals or groups of individuals without resort to the principle in Briginshaw.   They referred to the case of Bacon v Victoria (unreported, Supreme Court of Victoria, 7 November 1997, Beach J) where the issue was whether the education policy of the Victorian government was discriminatory.   Beach J held that it was, but his Honour did not invoke the Briginshaw principle.  That case was similar, in principle, to this one.  No issue of fraud or impropriety was raised or needed to be determined.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             16 September 1999

Counsel for the Appellant:	R Tracey QC with M Young
Solicitor for the Appellant:	Victorian Government Solicitor
Counsel for the First Respondent:	B Woinarski QC with D Mortimer
Solicitor for the First Respondent:	Erskine Rodan & Associates
Date of Hearing:	20 May 1999
Date of Judgment:	16 September 1999