Federal Court of Australia

Payne v Long [2020] FCAFC 170

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 7 June 2016, Carl Payne, the appellant, and his wife, Tracey, attended an information session at the campus of the Technical and Further Education Commission (TAFE), the second respondent, at Lake Cargelligo. Mr Payne sought to enrol in the Certificate III Civil Construction Plant Operations course to commence on 15 August 2016. TAFE is established pursuant to s 4 of the Technical and Further Education Commission Act 1990 (NSW) (the TAFE Act).

2    Ian Long, the first respondent, had been an Aboriginal consultant in the Aboriginal education and training unit with the TAFE’s Western Institute since 2011. In that role Mr Long worked in partnership with rural Aboriginal communities to identify training courses that were appropriate for developing educational and vocational opportunities for Aboriginal people. Those courses included the delivery at TAFE campuses of targeted education and training programs in accordance with the functions conferred on TAFE by s 6(e) of the TAFE Act. That section required TAFE to:

provide educationally or vocationally disadvantaged groups (such as women, Aborigines, persons of non-English speaking background, persons with disabilities and persons in rural areas) with access to technical and further education services, including a range of appropriate specialised services…

3    The course was a largely practical one suitable for a wide range of students with varying standards of literacy and numeracy. But the course contained a theory component that in Mr Long’s experience could be difficult for some Aboriginal students. Mr Long considered that successful completion of the course would enable graduates to obtain employment operating load bearing construction equipment with local councils and other plant operators, including a mine in the area where Mr Payne lived. Mr Long had conducted two versions of the course earlier in 2016, one at Forbes in March 2016 and another at Condobolin in April 2016.

4    Mr Payne and Mr Long met at the Lake Cargelligo campus on 7 June 2016 in circumstances which are described in more detail below and had a conversation. Mr Long believed, but did not confirm or elicit at the time, that Mr Payne was a person of Aboriginal heritage. That was a mistake. Mr Long was also mistaken about his understanding of the circumstance for a fee waiver available to persons who enrolled in the course. Mr Long incorrectly understood that only persons of indigenous heritage were eligible for a fee waiver. However, the New South Wales and Commonwealth Governments funded courses fully for the long term unemployed. It is common ground, that, if he were enrolled in the course, Mr Payne would have been entitled to the benefit of having his fees for the course fully subsidised because he was seeking qualifications to work.

5    On 15 June 2016 Mr Long telephoned and spoke to Mr and Mrs Payne separately. Mr Long informed each of them that Mr Payne was not entitled to enrol in the course with the benefit of the fee exemption because he was not Aboriginal and that if he wanted to do the course he would have to pay $8,500 to do so. In fact, but unbeknown to Mr Long, Mr Payne would have been eligible to enrol in the course with a fee exemption. That was because both Governments would have subsidised the whole of the fees payable for the course if Mr Payne enrolled, as noted above.

6    Critically, however, Mr Long and TAFE had structured the enrolment criteria for the course to give first priority to Aboriginal students to be allowed to enrol and be included in the maximum of 14 students who could take part in it.

7    On 17 June 2016, Mr Payne complained to the Australian Human Rights Commission that Mr Long and TAFE had discriminated against him based on his race in failing to enrol him in the course.

8    On 10 April 2017 the Commission terminated the complaint pursuant to s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) on the basis that there was no reasonable prospect of it being settled by conciliation.

9    Mr Payne commenced the proceeding below on 12 June 2017 claiming general damages, and special damages for loss of expected earnings, “rehabilitation” and psychological therapy. Mr Payne alleged that in communicating with him and dealing with his application for enrolment for the course, Mr Long had contravened s 9 of the Racial Discrimination Act 1975 (Cth) by doing one or more acts involving a distinction, exclusion, restriction or preference based on race or ethnic origin which had the purpose or effect of nullifying or impairing recognition, enjoyment or exercise, on an equal footing, of a human right. Mr Payne also alleged that Mr Long and TAFE had contravened s 13 of the Act because each of Mr Long and TAFE, as a person who supplied services to the public or a section of the public, supplied those services to him on less favourable terms or conditions by reason of either his race or the race of the Aboriginal students to whom they gave preference.

10    TAFE accepted that it was vicariously liable, pursuant to s 18(A)(1) of the Act, for any of Mr Long’s conduct the subject of the proceeding that may have contravened ss 9 or 13.

11    Mr Payne appeared before the primary judge and represented himself, with the assistance of his wife as his McKenzie friend. Her Honour had case managed the proceedings for most of their duration and heard the case over extended sitting hours on 12 December 2018. Mr Long and TAFE appeared by solicitors and senior counsel.

12    Her Honour was confronted with a considerable amount of not particularly well organised material that raised numerous apparent or possible factual or legal issues. She noted the parties had prepared consolidated statements of fact in which they sought to set out Mr Payne’s allegations and the contentions of Mr Long and TAFE in response to them as submissions together with, where there was agreement, agreed facts and statements of factual issues in dispute.

13    Thus, the task facing her Honour was particularly difficult because the issues were somewhat unclear. Although Mr and Mrs Payne (as his McKenzie friend) were able to identify, in broad terms, the issues and to conduct a reasonably effective cross examination of Mr Long, there were considerable grey areas of precisely how Mr Payne put his case and how the respondents contested it. As her Honour said “the manner in which Mr Payne puts his case is not entirely clear”. Her Honour said that it was fair to describe the case as involving Mr Long not admitting Mr Payne into the course because he was not Aboriginal and that TAFE offered an “Aboriginal-brokered course” delivering preferential enrolment to Aboriginal students.

14    In the appeal we have been greatly assisted by counsel who appeared, on relatively short notice, for Mr Payne and articulated clearly the case he sought to make on appeal.

Legislative context

15    Relevantly, Part II of the Act was headed “Prohibition of racial discrimination” and provided:

8 Exceptions

(1)     This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

…

9 Racial discrimination to be unlawful

(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.

…

13     Provision of goods and services

It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a)     to refuse or fail on demand to supply those goods or services to another person; or

(b)     to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

(emphasis added)

16    The Convention referred to in s 8(1) is the International Convention on the Elimination of All Forms of Racial Discrimination. The Convention provides, relevantly:

Article 1

…

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

…

Article 2

…

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

(emphasis added)

Grounds of appeal

17    Mr Long and TAFE opposed the grant of leave for Mr Payne to rely on the amended notice of appeal that his counsel had prepared shortly before the hearing on the basis that the delay had not been justified, it raised issues that had not been put below and Mr Long had not had a proper opportunity to deal with those matters in his evidence. However, their senior counsel accepted that they would suffer no prejudice if Mr Payne were granted the leave he sought and, accordingly, at the hearing the Court granted leave to amend on that basis.

18    Mr Payne’s amended grounds of appeal were, in substance, that her Honour erred:

(1)    In holding that the course was an exempt special measure within the meaning of s 8 of the Act. He argued that the primary judge should have found that the relevant exempt special measure was not the course itself, but the provision of particular Commonwealth funding or TAFE’s decision to give priority for enrolment to, indigenous students for the course.

(2)    In finding that TAFE had imposed an eligibility requirement of indigenous status for admission into the course which Mr Payne did not meet. He argued that the primary judge should have found that TAFE had not imposed any such eligibility requirement and that Mr Long had excluded Mr Payne from enrolment because of his race.

(3)    In failing to deal with Mr Payne’s substantive submissions and case that appeared in the evidence that:

    Mr Long had failed or refused to process Mr Payne’s application or his entitlement to a fee exemption on the ground of his race;

    Mr Long and TAFE had not raised any contention that enrolment in the course was on a first come, first served or indigenous student priority basis, until after Mr Payne had complained to the Commission;

    Mr Long failed and refused both to put Mr Payne’s application on any waiting list for, and to enrol him in, the course on the ground of his race;

    because of Mr Long’s discriminatory conduct, he and TAFE failed to offer Mr Payne enrolment in the course when a vacancy arose; and

    there was substantial conflict within Mr Long’s evidence and between that evidence, the unchallenged evidence of Mr Payne and the admissions of TAFE that required her Honour to determine disputed questions of fact and credit in Mr Payne’s favour.

(4)    By wrongly rejecting cross-examination of, or preventing Mr Payne from cross examining, Mr Long on emails that Mr Long had exchanged with Ann-Marie Davies of Sureway, Mrs Payne’s employment services provider.

Further background

19    Mr Payne had been unemployed for at least the previous twenty years before 7 June 2016. He had been in receipt of a Newstart allowance pension since mid-2013. He suffered from illiteracy, dyslexia and other stress related illnesses which were not, however, relevant for the purposes of determining the substantive dispute in the proceeding.

20    Mr Payne and Mr Long gave differing accounts of the events of 7 June 2016.

21    On 6 June 2016 Mr Payne’s job services provider (Joblink Plus) case manager phoned him to suggest that he attend the information session the next day for the course (Tab A 46) and that he should be there between 10am and noon on 7 June 2016. Mr Payne said that at about 10.41am on 7 June 2016 the case manager had phoned him to say the course coordinator, Mr Long, had told him that no one had turned up for the information session by then and enquired if Mr Payne was going to attend. Mr Payne told the case manager that he would attend, was on his way and would be there in ten minutes. He said that on arrival at the Lake Cargelligo campus he met with Mr Long where they spoke for about 15 minutes. Mr Payne said Mr Long appeared to be waiting for more people to turn up and that he and Mr Long discussed the benefits of doing the course. Mr Long told him that it was a good course and was fully funded by the Government. Mr Long said that the course on offer would be free for Mr Payne but if he were otherwise going to do a similar course it would cost $8,500. He said that he had sat through the meeting to obtain as much information he could and, with the assistance of his wife, filled out the enrolment form.

22    In his evidence in chief, Mr Long said that he began the information session at about 10.15am when about 16 or 17 students were present. He explained the course and that it was an “Aboriginal targeted” one, which was why it was free. He said that because of safety considerations and the fact that there were only two teachers, the maximum number of students that could be enrolled was 14. He said that he and his colleagues would be collecting the enrolment forms that morning but that they would need to get back to them to confirm the enrolments and to enable staff in Orange to locate or generate a unique student identifier for each student who would be enrolled. Mr Long also said that the students would also need to complete a student fee exemption application form. The fee exemption form was a TAFE form that provided for persons to seek exemption from the student fee because they were an Australian Aboriginal or Torres Strait Islander, a person with a disability who met certain criteria or a dependent child. The form contained no fee exemption for long term unemployed.

23    At the conclusion of the information session, which he thought had lasted about 15 minutes, Mr Long said that he spoke to Ms Davies from Sureway who told him that she may have a couple of other students who were doing part time work and may be able to enrol in the course. She asked if she could have some forms for them to fill in that she could return to Mr Long. Mr Long said that by about 11am most of the students who had attended the information session had left, having completed and, handed in, their forms. At that time he met with Mr Payne and his wife together with another person also sent by Joblink, Shane Macguire. Mr Long spoke with Mr and Mrs Payne but did not say to them it was an Aboriginal targeted course, because he had assumed that Joblink was aware of that criterion and would only have sent a person to the session who fell within it.

24    Mr Long only realised when reviewing the completed forms in Orange about a week later that neither Mr Payne nor Mr Macguire were Australian Aboriginals or Torres Strait Islanders. He said that by the time he read Mr Payne’s enrolment form he had already processed about 16 or 17 forms that he had received from persons who all identified themselves as being of Aboriginal descent and that there were a couple of other possible applications from persons also of Aboriginal descent for the only 14 places available. In those circumstances he rang Mr Payne on 15 June 2016 to inform him that his application was unsuccessful.

25    Mr and Mrs Payne recorded the telephone conversations that they had with Mr Long on 15 June 2016. Leaving aside any issues of the legality of doing so and therefore the admissibility of that evidence, Mr Payne put transcripts of those recordings in evidence to which no objection was taken. Initially at 9.28am Mr Long rang and spoke to Mrs Payne to convey what he said was bad news about the course. He said that when he was signing people up on 7 June 2016 he had been under the impression that Mr Payne was of Aboriginal descent but having now returned to the Orange office of TAFE and looked at all the forms, Mr Long saw that Mr Payne had not identified as being of Aboriginal descent. Mr Long said:

that’s what we were actually signing everybody up for that course but it was specific for Aboriginals only and that’s why we got this money and that’s what I was telling everybody last week…unfortunately we can’t enrol him in the course and if he wants to do the course as part of that group he will have to pay the fee which is like bloody eight and a half grand so argh I was just ringing to give you the bad news to be honest.

26    Mr Payne rang Mr Long back at 9.58am and Mr Long told him that the course had been funded for Aboriginal students. He said that he had told this to Ms Davies from Sureway and that he and other TAFE staff were unaware that any non-Aboriginal students had attended to enrol on 7 June 2016. Mr Long said that he was mistakenly under the impression that Mr Payne had Aboriginal heritage which was why he had “spent all that time talking to you”. He said that Mr Payne could still do the course “but we haven’t got the fees to cover the exemption for you if you are non-Aboriginal and the problem is it will cost you eight and a half grand.” Mr Payne, unsurprisingly, said he did not have $8,500. Mr Long responded saying that the only reason that TAFE could run the course for the Aboriginal community was that the Government had provided money for it. Mr Payne said that he was not entitled to any money from the Government. Mr Long replied that Mr Payne might be entitled to a fee reduction, because he was with Joblink, another job services provider, but it might not be the same as the fee exemption.

27    Mr Payne said that he had attended the information session on 7 June 2016 because Joblink had telephoned him and told him that he should be there if he wanted to do the course. He told Mr Long that Joblink knew that he was not an Aboriginal and that no one had mentioned to him any requirement that students had to be Aboriginal in order to enrol. Mr Long said that there must have been a problem with the person at Joblink. Mr Long said that Joblink should have told him that it was “Aboriginal specific because the Sureway lady that was out there she was bringing all the Aboriginal ones in and I was under the impression that whoever that guy is at Joblink he was selling the same message to everyone he was talking to”, namely that it was only for Aboriginal clients.

28    Mr Long and Mr Payne then debated matters further in that call. Mr Long emphasised that funding for the course had been conditioned on it being provided to Aboriginals and that Mr Payne could not join “because we got money from the Commonwealth Government to train specifically Aboriginal students.” During the conversation Mr Long said that he was offering the course outside the normal boundaries of his district in TAFE, and that when he ran the next course within those boundaries, Mr Payne could possibly enrol or, if the course became fully subscribed, the Government might provide more money to fund a further course where he could possibly attend.

29    In his evidence in chief Mr Long said that, after he had read the transcripts of the telephone conversations on 15 June 2016, he became aware that he had been incorrect in telling Mr Payne that he would have to pay a fee of $8,500 and that the correct position was that a long term unemployed person, such as Mr Payne, would only have to pay $240 for the course under a NSW Government “Smart and Skilled” funded program. However, by the time that he understood this, Mr Long said that he already had more Aboriginal students applying for enrolment than places in the particular course.

30    Subsequently, by 18 July 2016 Mr Long and other TAFE employees had experienced difficulties contacting two of the persons whom he thought had enrolled but who were not returning calls. On 18 July 2016 Mr Long sent an email to Ms Heather Moxon, who was responsible for completing the enrolment administration process, including the assignment of the unique student identifier numbers. He recounted the problem with the two persons who were not returning calls and he attached enrolment application forms from Mr Payne and Mr Macguire about whom he wrote that they were:

two non-Aboriginal blokes that we culled from the first group as they were not Aboriginal, but highly motivated. If worst comes to worst these two men can be added to the list so that we don’t lose the course. They are both unemployed with job agencies and very keen.

31    Mr Long said in cross-examination that he had been working at TAFE for almost eight years and could not understand why Mr Payne’s Joblink case manager, Damian, had sent Mr Payne in circumstances where Mr Long had asked him to send unemployed Aboriginal persons. Her Honour accepted Mr Long’s evidence that this was “the first time anyone in a job agency has turned around and sent other people.”

32    A TAFE brochure for the course had no reference to any qualifications or entry requirements except that participants had to be “over the age of 18 years of age at the time of the assessment on load shifting machines”. It did not refer to any suggestion that the course was intended for, or in any way limited to, Aboriginal students. However, Mr Payne did not see that brochure at any relevant time.

The primary judge’s reasons

33    Her Honour found that Mr Payne was not present at the information session when Mr Long explained that the course was an Aboriginal targeted course. However, the primary judge accepted Mr Payne’s evidence that when he arrived Mr Long was talking to the whole group, or at least those who were still present, and that Mr Long had said that he needed as many people as possible to enrol in the course because it would ensure future funding to get more courses to Lake Cargelligo, because this had been the first course that his section of TAFE had been able to organise there.

34    Her Honour accepted Mr Long’s evidence that 16 or 17 students had sought to enrol in the course after Mr Long’s arrival and that there were only 14 places. The primary judge found that Mr Long gave emphatic and credible evidence in cross-examination that even though priority was given to Aboriginal applicants, if the course had not been filled with people of Aboriginal descent, places would have been offered to non-Aboriginals who were unemployed such as Mr Payne, in accordance with his standard practice.

35    The primary judge noted that Mr Long and TAFE had argued that the course itself constituted the supply of a service to the public by TAFE and was therefore capable of engaging s 13 of the Act that proscribed discrimination in the supply of a service by reason of person’s race. Her Honour found that Mr Long and TAFE claimed that they were justified in structuring the course to give a preference to a racial group, in terms of s 9(1), that had the purpose or effect of nullifying or impairing recognition, enjoyment or exercise, on an equal footing, of a human right on the basis that their conduct was lawful discrimination within the meaning of s 8(1) of the Act because it incorporated special measures pursuant to Art 1(4) of the Convention.

36    Her Honour noted that Mr Long and TAFE also had contended that Mr Long had not engaged in any act that constituted racial discrimination because, irrespective of whatever information Mr Long conveyed to Mr Payne about eligibility for the course, as a matter of fact the course was already fully subscribed at the time Mr Long reviewed Mr Payne’s application.

37    Her Honour found that the course was a special measure for the purposes of s 8 and that, therefore, Mr Long’s conduct in advising Mr Payne that he was ineligible for the course “did not on any view constitute unlawful discrimination contrary to ss 9 or 13 of the RDA”. The primary judge found that Mr Payne had therefore failed to establish that either Mr Long or TAFE had discriminated against him on the grounds of race in contravention of the Act.

Mr Payne’s submissions

38    Mr Payne’s argument commenced by noting that Mr Long and TAFE had admitted that they first, had imposed a preference for enrolment in the course based on race that had the purpose or effect of impairing the recognition, enjoyment or exercise, on an equal footing, of a human right, in contravention of s 9 of the Act, and or secondly, made an offer of the supply of services on less favourable terms and conditions, contrary to s 13 of the Act. He argued that because of those admissions Mr Long and TAFE assumed the burden of proving the lawfulness of their conduct as an exempt special measure failing within the exception in s 8 of the Act.

39    He contended, in support of grounds 1 and 2, that the primary judge should not have found that the course itself was an exempt special measure because, first, there was “no official eligibility criteria of indigenous status” for entry into it and the evidence established it was open to both indigenous and non-indigenous students, and secondly, the course suited a wide range of students and had no characteristic or feature that specifically adapted it for indigenous students (AWS14). Mr Payne submitted that while the Government’s funding of places for indigenous students in the course was a special measure, he was also eligible for fee-free admission through other Government funded programs. However, he argued, even if there were “an official priority policy for indigenous applicants” (which Mr Payne disputed in ground 3), that was of no avail to Mr Long and TAFE on the facts because Mr Long never formally processed Mr Payne’s applications for enrolment or funding, when vacancies later arose, and he was not offered a place in the course to fill any of those vacancies.

40    In addition, Mr Payne contended that the sole purpose criterion in Art 1(4) of the Convention could not justify racial discrimination unless there was “intention and authorisation by the responsible entity to so act to promote a particular good”. He submitted that, here, TAFE’s intention to authorise priority of enrolment did not extend to excluding, or not processing, non-indigenous students’ enrolment applications. Thus, Mr Payne argued, Mr Long’s “refusal” to process his enrolment application on the basis of his race was not protected by TAFE’s more limited intention to give priority to indigenous students’ enrolment. Mr Payne also contended that Mr Long’s assertion that he would have to pay the full commercial fee for the course on the ground of his race was unlawful. Mr Payne submitted that the primary judge erred in finding, as a fact, that TAFE had imposed an eligibility requirement of indigenous status for enrolment in the course. He argued that her Honour should have found that Mr Long had no justification for sidelining his enrolment application and thus excluding him from the course on the ground of race.

41    As to ground 3, Mr Payne contended that her Honour erred in failing to engage with his substantial submissions and case that all of the evidence raised. He submitted that this case emerged from the following:

    Mr Long’s failure and refusal to process his enrolment application and, by himself or another TAFE officer, to perform TAFE’s “personal fee assessment service” for a fee exemption on the ground of his race;

    Mr Long and TAFE had not raised a suggestion that eligibility for enrolment into, or processing of enrolment applications for, the course on a basis of places being limited on a first come, first served and or priority for indigenous applications basis until after Mr Payne had made his complaint to the Commission, and that those eligibility criteria were contradictory of one another;

    Mr Long had not referred to those criteria in his discussions with Mr Payne on 7 June 2016 and with Mr and Mrs Payne on 15 June 2016;

    Mr Long had subsequently asserted that the policy was the reason for “his call” (scil: the 15 June 2016 telephone calls);

    the evidence revealed that TAFE had processed 21 indigenous students’ enrolments for the course but had never formally processed Mr Payne’s, despite his application being lodged earlier than some of the 21 others or, inconsistently with a first come, first served basis, failed or refused to process it on the ground of his race;

    Mr Long never processed Mr Payne’s fee exemption application and thus, when a vacancy arose, his enrolment application was also not processed;

    the primary judge should have resolved, but failed to resolve, a substantial conflict within Mr Long’s evidence and between that evidence, TAFE’s admissions and Mr Payne’s unchallenged evidence in numerous respects; and

    her Honour wrongly found that Mr Long’s cross examination did not suggest that he was being untruthful as alleged in Mr Payne’s written submissions, which gave fair notice of the issues on which Mr Long was challenged in cross examination or that he gave inconsistent evidence in numerous respects.

42    As to ground 4, Mr Payne submitted that her Honour wrongly rejected, or stultified, Mr Payne’s attempt to cross examine Mr Long on emails that he had exchanged with Ms Davies that were annexed to a submission that had been read without objection. He argued that senior counsel had not put a basis, other than his speculation, as to whether the emails might have been subject, in a separate proceeding that Mrs Payne had brought against Ms Davies and Sureway, to the implied undertaking not to use a document or information produced under compulsion without leave of the court for any purpose other than that for which the documents or information was given, unless it has been received into evidence: cf: Hearne v Street (2008) 235 CLR 125 at 154–155 [96] per Hayne, Heydon and Crennan JJ. We will explain the factual context for ground 4 when dealing with it later in these reasons.

Consideration

43    In Lee v Lee (2019) 266 CLR 129 at 148–149 [55] Bell, Gageler, Nettle and Edelman JJ restated the principles on which an appellate court must proceed in reviewing the evidence given at a trial and the trial judge’s findings of fact as follows:

A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law (Fox v Percy (2003) 214 CLR 118 at 126–127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558). Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558–559) is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts (Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434–435 [144]; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]). Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” (Warren v Coombes (1979) 142 CL 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy (2003) 214 CLR 118 at 127 [25]).

(emphasis added)

Grounds 1 and 2

44    Grounds 1 and 2 can be considered together as raising the issue of whether the primary judge erred in characterising the course as a special measure within the meaning of s 8(1) of the Act and Art 1(4) of the Convention. We reject Mr Payne’s argument that her Honour erred in her characterisation of the course as a special measure. Her Honour had the advantage of seeing and hearing the witnesses and made her findings of fact based on her assessment of their evidence. The primary judge accepted Mr Long’s evidence after taking into account aspects of it where he accepted that he had been mistaken. For example, her Honour found in relation to what Mr Long had said in the telephone conversations on 15 June 2016:

Mr Long accepted in his evidence that he had made a mistake in suggesting that Mr Payne would have to pay $8,450.00 to undertake the Course, explaining that he now understood that the fee which Mr Payne, as a long-term unemployed person, would have been required to pay for a Certificate III course was $240.00.

45    Her Honour concluded:

First, the evidence of Mr Long establishes that the Course conferred a benefit on a defined class comprising Aboriginal people living in remote or regional parts of NSW and, in particular, the local area of Lake Cargelligo (see above at [35]). Specifically, in March 2016, Mr Long identified the Aboriginal community at Murrin Bridge as a community which would benefit from delivering the Course at Lake Cargelligo given among other things: the limited access to such courses in the area for that community; the fact that it could be provided free for members of the community; the practical orientation of the proposed Course as one suited to members of that community; and the potential employment outcomes which completing the Course would afford members of that community in their local area.

Secondly, Mr Long’s evidence establishes that the sole purpose of the Course was to secure adequate advancement of the targeted beneficiaries in order that they might enjoy and exercise equally with others, the human rights to work and to education and training as provided in Art 5(e)(i) and (v) of the Convention….

Thirdly, it can reasonably be said that the Course and associated funding for the Indigenous participants were necessary for the targeted beneficiaries as members of a class which continues to experience greater disadvantage in terms of access to education and employment than the population generally.

(emphasis added)

46    Having carefully reviewed the evidence as a whole, we are not satisfied that any of those findings was glaringly improbable or contrary to compelling inferences: Lee 266 CLR at 148 [55]. Indeed, there was ample evidence to support those findings, to some of which the primary judge referred in her reasons. We agree with those findings.

47    Mr Payne’s argument as to what was a special measure erroneously treated Art 1(4) as if it were a domestic statute that applied with a meticulous exactitude to the facts, cf: Gerhardy v Brown (1985) 159 CLR 70 at 107 per Murphy J, 112–113 per Wilson J, 147 per Deane J. The special measures exemption in Art 1(4) of the Convention must be construed in accordance with the Vienna Convention on the Law of Treaties of 1969 [1974] ATS 2 which is an authoritative statement of customary international law for that purpose: Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 622 per Deane, Dawson, Toohey and Gaudron JJ. Even though the Vienna Convention has not been enacted as part of the law of Australia, its principles should be used in construing, relevantly, Arts 1(4) and 2(2) of the Convention: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 14–16 [34] per Gummow A-CJ, Callinan, Heydon and Crennan JJ, Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 202 [24]–[25] per Gleeson CJ, Gummow, Hayne and Heydon JJ, Gerhardy 159 CLR at 112–113 per Wilson J, at 124 per Brennan J. Articles 31 and 32 of the Vienna Convention relevantly provide:

Article 31.    General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

…

Article 32.    Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

(emphasis added)

48    The preamble to the Convention identified that the States Parties had based their agreement to its terms on several considerations, including:

Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

…

Convinced that the existence of racial barriers is repugnant to the ideals of any human society,

Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination

(bold emphasis added)

49    The exemption in Art 1(4) recognised that certain measures that, on their face, actually discriminate on the basis of race, can be necessary and acceptable if the Article’s conditions are satisfied. The Article excepts measures that have the sole purpose of securing the advancement of a particular racial or ethnic group, such as Aboriginal Australians, from what would otherwise fall within the general prohibition of discrimination on the ground of race. And Art 2(2), which must be read together with Art 1(4), required State Parties to take special measures: Gerhardy 159 CLR at 96–105 per Mason J, 147–148 per Deane J, 159–161 per Dawson J. Brennan J explained in Gerhardy 159 CLR at 133:

The sole purpose of a special measure is to secure such “adequate advancement” or “adequate development and protection” of the benefited class as is necessary to ensure “equal enjoyment or exercise of human rights and fundamental freedoms”. The occasion for taking a special measure is that the circumstances warrant the taking of the measure to guarantee that the members of the benefited class shall have “the full and equal enjoyment of human rights and fundamental freedoms”. From these conceptions, the indicia of a special measure emerge. A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms.

(emphasis added)

50    Brennan J explained that the intention of the persons who promoted or took a measure and the need to do so (being the subject matters of his third and fourth indicia of a special measure) involved questions of fact and opinion. Deane J described these as “essentially a question of characterization” and Dawson J held that this required “an examination and evaluation of purpose, not necessarily confined to the terms in which the special measures are expressed”: Gerhardy 159 CLR at 137, 148, 160; see too at 88 per Gibbs CJ, 104–105 per Mason J.

51    Importantly, s 8(1) provides that Pt II of the Act (in which ss 9 and 13 are found) does not apply “to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies”. Neither Art 1(4) nor the Act, read as a whole, established a prescriptive method by which a person or Government could adopt a special measure. Mr Payne’s argument before the primary judge and in the appeal concentrated on his characterisation of the way in which Mr Long and TAFE had sought to implement, what her Honour found was, their purpose in offering the course and applying, perhaps in a less than perfect manner, eligibility criteria to achieve that purpose. Their purpose was to enrol and teach as many indigenous students, up to 14, so that the Commonwealth funding for them could be used as it was intended. As her Honour reasoned, this purpose was consistent with Arts 1(4) and 2(2) of the Convention.

52    We reject Mr Payne’s argument that only the enrolment and fee exemption criteria for the course could be found to be special measures within the meaning of Art 1(4). Her Honour, having seen and heard the witnesses believed Mr Long’s and TAFE’s evidence that they intended the course for as many Australian Aboriginals, up to the maximum of 14, as could enrol, although others (including persons like Mr Payne) could enrol if, ultimately, places remained available. The fee exemption for Aboriginal Australians was a means, external to Mr Long and TAFE, by which their purpose in offering the course for the sole purpose of advancing an educational opportunity for Aboriginal Australians could be achieved.

53    The fact that, if not enough Aboriginal Australians enrolled in the course, others could have been offered places did not derogate from or qualify that sole purpose. It simply had a consequence that if the sole purpose were not fully achieved, other students could enrol in the course, while its intended, but more limited indigenous cohort, would still receive the benefit of participating in it: Gerhardy 159 CLR 70.

54    Mr Long and TAFE intended that the course be taught to as many Aboriginal Australians as wanted to take it, up to the maximum of 14 and that if it were not filled others, such as Mr Payne, could be enrolled. How Mr Long and TAFE administered the enrolment process to achieve that end, which was a special measure, did not convert the intended purpose of the course, or the manner in which Mr Long and TAFE sought or processed enrolments, into conduct that amounted to a contravention of s 9 or s 13. There was not a contravention of the Act because Mr Long misunderstood, when he spoke to Mr Payne on 7 June 2016 and to both him and Mrs Payne on 15 June 2016, that if less than 14 indigenous students were actually enrolled in the course, Mr Payne could then be enrolled and be entitled to a fee exemption.

55    For these reasons grounds 1 and 2 must be rejected.

Ground 3

56    Ground 3 was essentially a challenge to the primary judge’s credibility based findings. None of Mr Payne’s arguments in support of ground 3 suggested that any of her Honour’s findings about Mr Long’s evidence were glaringly improbable or contrary to compelling inferences: cf Lee 266 CLR at 148 [55]. Indeed, those findings were open on the evidence and we agree with them.

57    Nor was her Honour obliged to deal with every issue or make findings on every matter said to be adverse to Mr Long that Mr Payne canvassed in his submissions or cross-examination of Mr Long. The primary judge had a duty to state her reasons for deciding as she did but, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 E–G, 386 A–B (in a passage approved in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260–261 per Kirby P, 269–271 per Mahoney JA and 280–281 per McHugh JA; and in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 619 [90] per Kirby J):

such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide….

In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement.

(emphasis added)

58    The reason why an appellate court is constrained in reviewing credibility based findings is illustrated by what Issacs J said in Dearman v Dearman (1908) 7 CLR 549 at 561 (which Black CJ, French and Tamberlin JJ cited with approval in Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [41]):

The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal.

59    The instances in ground 3 on which Mr Payne relied concerned the primary judge’s ultimate finding that the course itself was the special measure in the sense which we have explained in dealing with grounds 1 and 2. Her Honour explained in an orthodox and, indeed detailed, way why she had accepted Mr Long’s evidence and why she had characterised the course, and not the enrolment or fee exemption criteria or processes, as the special measure.

60    For example grounds 3(d), (e) and (f) complained that her Honour failed to engage with Mr Payne’s submissions about Mr Long not putting his enrolment application on the waiting list, enrolling him in the course and, Mr Long and TAFE discriminating against Mr Payne by failing to offer him enrolment when a vacancy arose.

61    As we have explained, her Honour’s reasons did not need to engage with those matters in finding that the course was the special measure. Her Honour found that Mr Long and TAFE had established the criteria for enrolment in the course and that those criteria included the matters that Mr Payne characterised as the discriminatory conduct, namely the enrolment and fee exemption criteria. But those criteria were Mr Long’s and TAFE’s means to the end of providing the course to as many, up to 14, Aboriginal Australians who actually enrolled in it. How Mr Long and TAFE managed the enrolment process was peripheral to the sole purpose of the course. If it were not fully enrolled with 14 Aboriginal Australians, then others could be enrolled. But, as explained above, that possible outcome of the course did not derogate from the sole purpose as found by the primary judge. If it eventuated that others, such as Mr Payne could enrol in the course, his ability to do so would not be because its purpose had changed, but because not enough of its targeted cohort, Aboriginal Australians, had enrolled in it.

62    For these reasons ground 3 fails.

Ground 4

63    The basis for ground 4 was that, when, during the hearing, Mr Payne began asking a question about an email to Ms Davies, senior counsel for Mr Long and TAFE, Mr Villa SC, told her Honour that:

there’s an issue that arises under Hearne v Street, as we apprehend this. I’ve never seen – I don’t know what this email is…but in the sense of it being produced in the related proceedings involving Mrs Payne, it’s obviously improper without leave…

(emphasis added)

64    That submission was speculative and appears to have deflected her Honour. In fact, the speculation was also mistaken. The implied undertaking applies only to documents that are produced under compulsion. Because Mr Villa did not know what the document was, he had no basis to assert, and should not have asserted, that Mr Payne’s proposed use of it was “obviously improper”. In fact, as emerged during the hearing of this appeal, the Commission had provided the email to Mrs Payne during its consideration of her complaint. Accordingly, no implied undertaking could arguably have attached to its use.

65    Immediately after hearing from Mr Villa, her Honour explained to Mr Payne that senior counsel was making a point that “documents that were filed in Mrs Payne’s matter can’t be used in your matter without leave of the court”. In the discussion which followed the confusion about the provenance of the email continued. Mrs Payne revealed that Mr Long had sent the email to Ms Davies in an email chain. At that point Mr Villa said that:

…Mrs Payne is stepping outside of the bounds of her role as McKenzie friend, with respect. Whether it emanated from Mr Long or TAFE NSW is irrelevant if it has come into the possession through compulsory process in the other proceedings. Now, that might become an issue if leave is sought to rely on it. That is obviously going to be a relevant issue if that course is taken. But, particularly with this witness in the witness box, Mrs Payne ought not be - - -

HER HONOUR: This is a voir dire, effectively, with the witness present - - -

MR VILLA: Yes.

HER HONOUR: - - - which is all terribly inappropriate.

MR PAYNE: Well, we will just move on then.

HER HONOUR: All right. Let’s just move on.

MR PAYNE: Let’s just move on.

(emphasis added)

66    Thus, her Honour seems also to have been deflected by Mr Villa’s objection from seeking to ascertain the circumstances in which Mr and Mrs Payne obtained the email. The incident was unfortunate but occurred during a long day of a hearing in circumstances where:

    although Mr and Mrs Payne were conducting their case competently as litigants in person, they were not familiar with the legal rules and procedures of a trial in the way that counsel and judges are, and, from time to time they both needed her Honour’s guidance or directions to refocus everyone’s attention;

    her Honour and Mr Villa were aware of the legal effect of the implied undertaking and Mrs Payne’s separate proceeding against Ms Davies, in which her Honour had heard Ms Davies and her employer’s application for summary dismissal two months earlier on 10 October 2018 and had reserved her judgment (see Payne v Davies [2019] FCA 1506); and

    it was not clear what Mrs Payne’s source of the email was.

67    The primary judge’s comment “which is all terribly inappropriate” was directed to the fact that, during the voir dire, the substantive argument as to admissibility was occurring in the presence of the witness although Mr and Mrs Payne may not have understood that this was her Honour’s concern.

68    In the end, Mr and Mrs Payne did not pursue questioning Mr Long on the email. However, no injustice occurred because of the mistaken objection or the primary judge’s apparent (to Mr and Mrs Payne) acceptance of it. That is because the email related to whether in August 2016, Mr Long and TAFE had sought to, and did enrol, Aboriginal Australians in the course who had applied after 7 June 2016, while Mr Payne’s enrolment and fee exemption applications remained unprocessed.

69    As we have found, the course was a special measure and Mr Long and TAFE were able to prioritise enrolling Aboriginal Australians at any time, regardless of when Mr Payne had submitted his applications. It follows that there could not have been a different outcome had Mr Payne been able to cross examine Mr Long about the emails.

70    Therefore ground 4 fails.

Conclusion

71    The appeal must be dismissed with costs.

Associate:    

Dated: 9 October 2020