FEDERAL COURT OF AUSTRALIA

RACE DISCRIMINATION - Proceedings - Rights of audience - Extent of power to limit representation - Whether Commissioner had power to order that party be represented by solicitor but not counsel.

STATUTORY INTERPRETATION- Whether “solicitor or counsel” to be read disjunctively or as describing a class by reference to its component parts.

Racial Discrimination Act, 1975, ss 25G, Q, V

Sex Discrimination Act 1984, s 65

Modistach-Barnett v Southwell, HREOC, unreported, 29 April 1996 (Disapproved)

O’Toole v Scott [1965] AC 939 (Referred to)

Re G J Mannix Ltd [1984] 1 NZLR 309 (Referred to)

Molnar Engineering Pty Ltd v The Herald and Weekly Times Ltd (1984) 1 FCR 455 (Referred to)

O’Toole v Scott, Australian Securities Commission v Bell (1991) 32 FCR 517 at 528-529 (Referred to)

R v Kelly;  Ex parte Commonwealth Public Service Clerical Association (1955) 92 CLR 10 (Referred to)

Waters v Public Transport Corporation (1991) 173 CLR 349 (Referred to)

COMMONWEALTH OF AUSTRALIA (Applicant) v HUMAN RIGHTS EQUAL OPPORTUNITY COMMISSION (First Respondent), ROLF KUMMLE (Second Respondent)

AG33 of 1998

FINN J

CANBERRA

16 JUNE 1998

THE COURT ORDERS THAT:

            The application be allowed.

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

REASONS FOR JUDGMENT

The proper construction to be given s 25G(1)(b)(ii) of the Racial Discrimination Act, 1975 (Cth)(“the RD Act”) is in issue in this application brought under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) (“the ADJR Act”).

Section 25G is concerned with rights of appearance and of representation at inquiries by the Human Rights and Equal Opportunity Commission (HREOC) under the RD Act.  It provides:

“25G.  (1)        A party to an inquiry:

(a)       shall appear personally or, where the party is a body of persons, whether corporate or unincorporate, by an officer, employee or agent of the body;  and

(b)       may:

            (i)         if the Commission has made arrangements under sub-section 25K(1) for counsel to appear at the inquiry to assist the Commission;  or

            (ii)        in any other case - with the leave of the Commission;  be represented by a solicitor or counsel or an agent.

            (2)        A person, other than a solicitor or counsel, is not entitled to demand or receive any fee or reward for representing a party to an inquiry.”

In the instant case, an inquiry had been initiated into a complaint of racial discrimination in a staffing matter in the Department of Defence (“the Department”).  HREOC, while allowing the Department to be represented at the hearing of the inquiry by a solicitor, refused the Department’s request to be represented by counsel who had been retained on its behalf.  The essence of the present application is that HREOC did not have the power at all, or else in the circumstances, to so discriminate as between types of legal representative.

Background

The Department’s initial request to be permitted to be legally represented was made by the Australian Government Solicitor on 13 March 1998 and on the ground that there were some quite challenging legal issues involved in the matter.  The complainant had previously indicated to HREOC that he opposed legal representation being allowed to either party.  He was being assisted - and continues so to be - by an industrial organiser with the Community and Public Sector Union.

On 25 March HREOC advised by letter that the Commissioner conducting the hearing had given leave to the Department -

“to be legally represented at the hearing:  however such representation is to be limited to a solicitor employed by the Australian Government Solicitor and does not extend to external counsel.  The complainant is also given leave to be legally represented by a solicitor if required.”

Counsel having already been briefed in the matter, the Department sought the Commissioner’s reconsideration of his decision.  A telephone conference to deal with the matter was held on 30 March 1998.  Counsel for the Department made submissions that (a) s 25G only gave the Commissioner the power to determine whether or not a party could be legally represented and not the “level of representation”;  (b) the balance of legal representation as between the complainant and the Department was not a matter that should be considered;  and (c) there would be cost and other disadvantages if the Department could not use the counsel briefed.

The complainant’s representative reiterated the previous objection made and added that he had a fear of “imbalance in the proceedings” if the Department was represented by counsel.

The Commissioner gave an oral decision rejecting the reconsideration request.  On 1 April 1998 he provided written reasons for decision.

The Reasons for Decision

Having noted the submissions of the parties (see above), the Commissioner referred to Practice Note No 2 of the Commission.  It reads:

“Unless the Hearing Commissioner has appointed counsel to assist, parties must seek the leave of the Commission to be legally represented at the inquiry.

It is of concern to the Commission that a hearing be conducted expeditiously yet thoroughly, and that costs be limited.  It is also of concern that there be balanced representation between the parties and that one party not be perceived to be advantaged by the presence of legal representation at the inquiry.  When considering whether to grant leave to a party to be legally represented at the inquiry the Commission will have regard to whether the opposing party also seeks leave to be represented, whether there is any objection to the party’s representation, the size and complexity of the matter, and any other relevant matter.  In addition, the Commission may, of its own motion or at the request of a party, appoint counsel to assist the inquiry if that is appropriate to the circumstances of the particular inquiry.  The Commission can assist parties frame a request to the Commission that counsel assisting the inquiry be appointed.

Applications for leave to be legally represented should be made to the Commission at the earliest possible time.”

He then adverted to the procedural provisions of s 25V(1)(b)(c) and (d) of the RD Act.  Section 25V(1) is in the following terms:

“25V.  (1)        For the purposes of an inquiry, the Commission:

(a)       is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit;  and

(b)       shall conduct the inquiry with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commission permit;  and

(c)        may give directions relating to procedure that, in its opinion, will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties;  and

(d)       may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done.”

The Commissioner, in light of the matter referred to above, decided not to vary his initial decision.  In so doing he indicated that he took account of, and he quoted from, the decision of another Commissioner in Modistach-Barnett v Southwell, HREOC, unreported, 29 April 1996, on s 25G’s identically worded counterpart in the Sex Discrimination Act 1984 (“the SD Act”):  s 65.  Because of their significance in this application that other Commissioner’s observations on the construction of s 65 of the SD Act warrant quotation.  They run:

“Section 65 could be construed in two alternative ways:  one way would lead to extreme results whereas the other way would leave a Hearing Commissioner with a broad discretion to do what is best in the particular and unique circumstances of an individual complaint.

If s 65 was to be construed in a narrow way, then Hearing Commissioners would be in a position where they could only deny all legal representation or allow any level of legal representation:  I am not satisfied that this was the intention of Parliament.  There is little indication in the Act that the question of legal representation should be solved in an ‘all or nothing’ fashion - such an approach is likely to appear arbitrary and often would be.  The passage of s 65 by the Parliament is completely consistent with the pastoral and conciliatory purpose of the Act, cf Sir Ronald Wilson in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 at p 78.900.  I see no evidence of any intention that the Commission should approach the question of legal representation on the ‘all or nothing’ basis:  indeed, the mere existence of s 65 suggests a clear intention by Parliament that the presence and expense of legal representation is one to be kept within appropriate bounds.

What is an appropriate and fair level of legal representation will be an issue for every Hearing Commissioner on the facts and circumstances of each complaint.  As is often the case, compromise, judgement and balance will be necessary.  The Act’s clear intention is to do justice between the parties with as little formality as is prudently possible.”

The Construction of s 25G

This section was only introduced into the RD Act in 1985 to bring that Act’s procedural provisions into line with those in the SD Act.  The Explanatory Memorandum to the 1985 amendment, insofar as presently relevant, merely reiterated the terms of s 25.  The then Attorney-General, in explaining the procedural amendments, stated they were necessary because the then existing provisions had “not proved effective”:  Senate Hansard, 28 November 1986, p 2986.  Those procedures allowed (on issue of a certificate) for resort to be had to proceedings in a court if a complaint could not be settled.  That process was said to have been “beyond the financial and emotional resources of most complainants”.

It is clear on its face that s 25G is designedly structured to be different in its approach to appearance and representation to what is characteristic of a court both in relation to legal representation and to the permissible use of agents:  as to the practice of courts see eg Federal Court Rules, O 4 r 14;  on proceeding otherwise than by counsel or in person see O’Toole v Scott [1965] AC 939;  see the comments in Re G J Mannix Ltd [1984] 1 NZLR 309 at 312-313 on lay representation in courts;  and on companies appearing by agents see Molnar Engineering Pty Ltd v The Herald and Weekly Times Ltd (1984) 1 FCR 455.  In a HREOC inquiry there is no right to legal representation, it being a discretionary matter for the Commission;  some concession is made for “bodies of persons” to appear by agents (I use this term to include an “officer” or “employee”);  and the discretion to allow representation by agents is expressly countenanced  rather than being left to the inherent power of a court or tribunal to regulate and control its own proceedings:  see O’Toole v Scott, above;  Australian Securities Commission v Bell (1991) 32 FCR 517 at 528-529.

The provisions of the RD Act dealing with the conduct of inquiries (and especially those of s 25V), and the emphasis therein in s 25Q (not reproduced in these reasons) on both the resolution of complaints by conciliation and the taking of reasonable steps “to effect an amicable settlement of a complaint”, readily suggest reasons why the legislature considered it appropriate not to allow legal representation as of right but, subject to s 25G(1)(a), to leave it as a discretionary matter for the Commission.  What the procedural provisions do not do, is provide expressly the range of considerations of which account can or must be taken in exercising the discretion in question.  More importantly the provisions of s 25G(1)(b)(ii) do not make unquestionably plain the actual metes and bounds of the discretion given.

The applicant’s submission as I now understand it, is that when the provision refers to a party, subject to leave, being “represented by a solicitor or counsel or an agent”, the formula as it relates to “a solicitor or counsel” should be interpreted as a composite and generic one signifying no more than “legal representation” be this by a solicitor, by counsel (ie barrister) or, for that matter, by a “legal practitioner” (cf Legal Profession Act 1987, s 4(2) (NSW)).  And it is contended that Parliament would not have intended the formula to be construed literally and disjunctively so as to deprive a party of the representation of his or her choice (eg a barrister rather than a solicitor) notwithstanding that the Commission may have accepted that the matter in question was one in which legal representation was appropriate.

For its part the respondent submits that in referring to “a solicitor or counsel or an agent” the term “or” should be given its ordinary disjunctive meaning where it occurs so that the Commissioner does have a discretion to differentiate between “solicitors” and “counsel” in allowing representation.  The term “counsel”, it is suggested, should be regarded as synonymous with “barrister”:  R v Kelly;  Ex parte Commonwealth Public Service Clerical Association (1955) 92 CLR 10 at 13-14.  In oral argument the respondent sought as well to justify the existence of the resultant discretion to discriminate between barristers and solicitors by reference to those considerations of appropriateness and fairness in the levels of, and (as between the parties) the balance of, legal representation that were referred to in the Modistach-Barnett matter, above.  If I can paraphrase the submission I hope not unfairly, the notion of fairness it is said, suffuses the procedural provisions and particularly the discretion in s 25G(1)(b)(ii) and should be given effect to in the construction of the sub-section, the more so given the “human rights” purposes of the RD Act:  cf Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.

In construing the words “a solicitor or counsel or an agent”, it is important to note (i) that, distinctively, the indefinite article “a” does not precede the word “counsel”;  and (ii) that “solicitor” and “counsel” belong to the common genus of legal practitioner - a genus to which an “agent” as such does not belong.  These differences themselves at least suggest that the words were intended to describe two, not three, classes of prospective representative:  the one class being members of the genus of legal practitioner;  the other, of persons not seeking to represent a party as a legal practitioner:  cf R v Kelly, above.  And if such be the case, the word “or” as used in “by a solicitor or counsel or an agent” can be said to be used differently on the two occasions of its use.  On the first occasion (“solicitor or counsel”), it is used in an aggregating sense to link the members of a class so allowing it to be described by reference to its component parts.  On the second occasion (“or agent”), it is used disjunctively in relation to what has preceded it and its function is to differentiate between classes.  As I indicate below, such I consider to be the proper construction of these words.

To the extent that relevant parliamentary history throws any light on the question - and I am prepared for this purpose given the provenance of s 25G to have some regard as well to the legislative history of s 65 of the SD Act - it provides no basis for suggesting that parliament intended to draw a distinction between solicitors and counsel in legal representation.  Debates on proposed amendments to the bill resulting in s 65 of the SD Act suggest that the concern rather was with whether or not there should be “legal representation” as of right and no more.

Neither do legislative drafting practices of the Commonwealth over time illuminate this particular matter.  In some instances in dealing with representation before tribunals etc the statutory formula “solicitor or counsel” (or a variant thereof) has been employed:  see eg Conciliation and Arbitration Act 1904-1950, s 46(2).  In others, the designation “legal practitioner” has been used:  see eg Australian Soldiers’ Repatriation Act 1920-1929, s 45R.  But when such statutes are required to concern themselves directly with the qualifications of lawyers as such, a more technical precision is displayed.  So, for example, in the RD Act itself, s 25B, in defining who is a “legally qualified person” for the purposes of holding an HREOC inquiry, refers in sub-section (3)(b) to a person who:

“is enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court, of another federal court or of the Supreme Court of a State or Territory.”

I should add that the variability in statutory formula noted above is by no means an exclusively Commonwealth phenomenon:  see eg Criminal Justice Act 1989, s 3.23 and s 3.30 (Qld).

One may speculate whether reference to solicitors along with counsel in such legislation was concerned early on at least to make plain that legal representation at the hearings of Tribunals was not to be confined to barristers:  cf the English discussion on barristers’ rights of audience in Abse v Smith [1986] 1 QB 536.  What today, though, seems unlikely in light of evolutionary change in the structuring of the modern legal profession in this country:  see the Legal Practitioners Act, 1970, s 20 (ACT);  Legal Profession Act, 1987, s 4(2) (NSW);  is that the Parliament would have intended to differentiate between solicitors and barristers in the way suggested by HREOC without providing the slightest indication in extrinsic materials or, for that matter in the section itself, not only that such differentiation was intended but also that it was in furtherance of a designated reason or purpose of which account would thus be taken.

I am unprepared to assume in this that Parliament intended HREOC to proceed on the premise that representation by counsel involved a higher level of legal representation than by solicitors and for that reason different and seemingly more exacting (though unstated) considerations should be taken into account in deciding whether to give leave to appear to a barrister rather than to a solicitor.

Solicitors in this Territory (the ACT), for example, act regularly as advocates in this and other courts.  The construction HREOC asks me to put on the section would, in my view, unfairly advantage these advocates vis-a-vis barristers in a tribunal such as HREOC and for no reason that has any apparent bearing on whether legal representation should be allowed in a particular matter.  The broad interpretation divined for s 65 of the SD Act in the Modistach-Barnett decision of HREOC relied upon by the Commissioner in the present matter, is itself problematic.  It would require a Commissioner to determine what is “an appropriate and fair level of legal representation ... on the facts and circumstances of each complaint”.  Such, in my view, is an improbable inquiry for Parliament to have intended to mandate.  If accepted, it would allow HREOC not only to differentiate between solicitors and barristers but also to differentiate among both solicitors and barristers apparently so as to ensure some perceived equality in the competence etc of the representation allowed in a given instance.

For my own part, as I have foreshadowed, I do not consider that s 25G(1)(b)(ii) allows for differentiation between solicitors and counsel as such.  Its concern is with legal representation, with agency representation and no more.  And if the matter is considered by a Commissioner to be one appropriate for legal representation then, subject to what is said below, the choice of representative is for the party concerned.  The discretion given the Commissioner does not extend to the elimination of that choice such as occurred in the present case.

Having reached the above conclusion, I should indicate that I do not in any way intend to cast doubt on the power of a Commissioner to deny representation to a particular solicitor or barrister where reasonable grounds exist for objecting to that person’s representation at the hearing in question:  see eg Australian Securities Commission v Bell, above;  notwithstanding that the matter is one in which legal representation is otherwise appropriate.

I also would wish to add that, if party choice of legal representative once leave has been given may appear to a Commissioner to produce inequality between the parties at the inquiry, that Commissioner is more than adequately armed with powers under s 25V of the RD Act to take such procedural steps “it considers are appropriate or necessary to ensure that justice is done”:  s 25V(1)(d).

The application will be allowed.

Associate:

Dated:              15 June 1998