FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – review of a decision of the President of the Human Rights and Equal Opportunity Commission dismissing a complaint under the Disability Discrimination Act 1992 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Disability Discrimination Act 1992 (Cth), ss 5, 24, 69, 71, 101

DAVID RAYMOND CATESBY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ORS 

NG 379 of 1998

BRANSON J

SYDNEY

2 OCTOBER 1998

THE COURT ORDERS THAT:

1.                  The application be dismissed

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

REASONS FOR JUDGMENT

INTRODUCTION

By an amended application dated 4 August 1997 the applicant seeks review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of a decision of the President of Human Rights and Equal Opportunity Commission (“the President”) of 16 April 1997 made pursuant to s 101 of the Disability Discrimination Act 1992 (Cth) (“the Act”).  On 16 April 1997 the President dismissed a complaint under s 69 of the Act made by the applicant against the Australian Federal Police (“AFP”), Telstra and the Commonwealth Ombudsman (“the Ombudsman”).  The President was satisfied that there was no evidence, or insufficient evidence, that the respondents, or any of them, discriminated against the applicant by reason of his disability.  The disability upon which the applicant places reliance is his mental illness.

The applicant appeared before the Court without legal representation.  The first and third respondents submitted to the order of the Court save as to costs.  The second and fourth respondents placed submissions before the Court by their respective legal representatives.

FACTUAL BACKGROUND

The factual background to the applicant’s complaints, which the applicant orally outlined to the Court, is long and involved.  There was no formal proof of most aspects of this factual background.  The only evidence which the applicant sought to place before the Court was argumentative in character and was received as part of the applicant’s submissions to the Court, and not as proof of the allegations contained therein.  It is clear, however, that the applicant’s history of relevant dealings with the respondents was precipitated by the receipt by the applicant of anonymous, obscene, and harassing telephone calls and facsimile transmissions.  It appears that as the applicant sought redress concerning the telephone calls and facsimile transmissions, he identified numerous grounds of complaint against those to whom he turned for assistance.  I do not find it necessary to detail every such ground of complaint.

The applicant complained to the AFP about the telephone calls and facsimile transmissions.  The AFP decided not to investigate the applicant’s complaint.  The AFP placed reliance on the following:

(a)                its limited resources;

(b)               its giving of priority to cases involving an immediate threat to a person’s well being or serious criminality; and

(c)                the ability of Telstra, at the request of the applicant, to change his telephone number or to give him an unlisted number.

The applicant also complained to Telstra.  Telstra advised the applicant that if he wished any future calls to be traced it was be desirable for him to have his telephone service upgraded.  Telstra offered to update the applicant’s telephone equipment without charge but the applicant refused the offer.  Telstra did place a trace facility on the applicant’s telephone.  The applicant declined an offer from Telstra to change his telephone number to an unlisted number without charge.  He feared social isolation.

The applicant complained to the Ombudsman about the response which he received from AFP and Telstra.  The Ombudsman formed the view that the conduct of the AFP was reasonable in the circumstances and she declined to investigate the applicant’s complaint further. The Ombudsman advised the applicant that if he were dissatisfied with the conduct of Telstra, he could take the matter up with the Telecommunications Industry Ombudsman.

The applicant by letter dated 31 January 1996 made a complaint concerning each of the AFP, Telstra and the Ombudsman to the Disability Discrimination Commissioner (“the Commissioner”).  The applicant’s long letter of complaint opened as follows:

“I write seeking assistance on the matter of my having been discriminated against, due to my having been mentally ill, by the Australian Federal Police, Telstra and the office of the Commonwealth Ombudsman in respect to my having made a complaint to the AFP after receiving for what is now over five years anonymous, obscene and harassing phone calls, and obscene and threatening facsimile’s. [sic] I have offered proof in the form of legally obtained tape recordings of a number of the phone calls and offered possitive [sic] identification as to the persons who have made a number of the calls.  I have been fobbed off with a series of excuses that are themselves documented as being a mixture of lies and blatent [sic] attempts to simply get rid of me.

From my first meeting with the AFP I made it most clear that I had been mentally ill and as I had experienced a great deal of disbelief in what I have had happening to me I even went as far as to provide the AFP officer with my written permission to contact my G.P. in order that she might clarify from the very start that my allegations were indeed very real and not a figment of the imagination of a mentally unbalanced person.

The result of this honesty on my part has been that I have been treated with absolute contempt by all concerned and despite the best efforts to assist me by my G.P. Dr Wendy Burton and my Federal MP Ted Mack, the lies and discrimination continue, and have now reached the point of my being given what I view as veiled threats by the AFP because I have advised them that given their refusal to assist me and the continued effect that these criminal attacks have upon my health I feel that I am now forced to exercise my right in law to use reasonable force to defend myself.”

By letter dated 17 May 1996 the Commissioner advised the applicant that the Commissioner declined to continue investigating the applicant’s complaints of discrimination on the ground of disability on the basis that they lacked substance.  The Commissioner’s letter advised the applicant as follows:

“In light of the actions taken by Telstra, I can find no evidence that it has discriminated against you either, and I would encourage you to take up Mr Hofsteters suggestion, should you receive such distressing telephone calls in the future.

The Commonwealth Ombudsman did undertake some inquiry into your complaint about the AFP, but decided that they had not acted unreasonably and declined to take any further action.  I can find no, or no sufficient, evidence of discrimination in this decision.  I note that the Ombudsman advised you that, if you were dissatisfied with Telstra, you could take up the matter with the Telecommunications Industry Ombudsman.

In light of the foregoing, I have decided not to continue to inquire into this complaint as I think that it is lacking in substance.”

As is mentioned above, the President, having reviewed the decision of the Commissioner not to continue to inquire into the applicant’s complaints, dismissed the complaint on the basis that he was satisfied that there was no evidence, or insufficient evidence, that the respondents had discriminated against the applicant by reason of his disability.

STATUTORY BACKGROUND

Disability Discrimination Act 1992 (Cth)

Section 4(1) of the Act defines “disability” in relation to a person to mean, amongst other things, a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.  I accept that the applicant has a disability in this sense.

Section 5 of the Act provides as follows:

“(1)     For the purposes of this Act, a person (“discriminator”) discriminates against another person (“aggrieved person”) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2)               For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”

The Act does not make all discrimination on the ground of disability unlawful; only acts of discrimination in circumstances identified by particular provisions of the Act are rendered unlawful.  Section 24(1) of the Act, which seems the most relevant provision of the Act from the applicant’s point of view, makes it unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:

“(a)     by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)               in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)               in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.”

Section 24 is within Part 2 of the Act.

Section 69 of the Act authorises a complaint in writing alleging that a person has done an act that is unlawful under a provision of Part 2 to be lodged with the Human Rights and Equal Opportunity Commission (“HREOC”) by a person aggrieved by the act.

 Section 71 provides, so far as is here relevant, as follows:

“(1)     If:

(a)               a complaint relating to an alleged unlawful act is made to the Commission under section 69; or

(b)               …

the Commission must notify the Commissioner accordingly and the Commissioner must, subject to subsection (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.

(2)        The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:

(a)               the Commissioner is satisfied that the act is not unlawful under a provision of Part 2; or

…

                        (d)        in a case where a complaint has been made to the Commission in relation to the act – the Commissioner thinks that the complaint was trivial, vexatious, misconceived or lacking in substance; or

                                    …

(3)        If the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner must give notice in writing to the complainant … of the reasons for that decision and of the rights of the complainant … under subsection (5).

(4)        …

(5)        If the Commissioner has given a complainant a notice under subsection (3), the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the President.

…”.

Section 101(1) of the Act is concerned with the powers of the President when a complaint is referred to him or her under s 71(5) of the Act.  So far as is here relevant, it provides as follows:

“(1)     If a complaint is referred to the President under subsection 71(5), the President may, without holding an inquiry, dismiss the complaint if:

(a)               the President thinks the complaint is trivial, vexatious, misconceived, lacking in substance or stale; or

(b)               the President is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2; or

…”

Administrative Decisions (Judicial Review) Act 1977 (Cth)

A decision to which the ADJR Act applies is, so far as is here relevant, a decision of an administrative character made under an Act.  It is not in dispute in this case that the decision of the President is a decision to which the ADJR Act applies.

Section 5 of the ADJR Act provide as follows:

“5.       (1)        A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)               that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)               that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)                that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)               that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)                that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)                 that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)               that the decision was induced or affected by fraud;

(h)               that there was no evidence or other material to justify the making of the decision;

(i)                 that the decision was otherwise contrary to law.

(2)               The reference in paragraph (1)(e) to an improper exercise of power shall be construed as including a reference to –

(a)               taking an irrelevant consideration into account in the exercise of a power;

(b)               failing to take a relevant consideration into account in the exercise of a power;

(c)                an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)               an exercise of a discretionary power in bad faith;

(e)                an exercise of a personal discretionary power at the direction or behest of another person;

(f)                 an exercise of a discretionary power in accordance with a rule of policy without regard to the merits of the particular case;

(g)               an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)               an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

                        (j)        any other exercise of a power in a way that constitutes abuse of the power.

(3)               The ground specified in paragraph (1)(h) shall not be taken to be made out unless –

(a)               the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

CONSIDERATION

Understandably in the circumstance that the applicant did not have legal representation before the Court, the applicant’s case was not presented to the Court by reference to s 5 of the ADJR Act, but on the basis that a review on the merits of the President’s decision was available to the applicant.  A review on the merits is not available under the ADJR Act.

I have given consideration to the contents of HREOC files and other documents placed before me by the first respondent.  Such files and documents include over 750 pages, a considerable number of which are copies of correspondence from the applicant to one or other of the respondents.  Having given consideration to the HREOC file and the other documents before me, I am not able to identify any ground upon which the decision of the President of 11 April 1997 should be reviewed pursuant to s 5 of the ADJR Act.

Under s 101 of the Act the President was empowered to dismiss the applicant’s complaint if he thought that the complaint was misconceived or lacking in substance or if he was satisfied that the complaint related to acts that were not unlawful under a provision of Part 2 of the Act.  It is not for me to substitute my views or my satisfaction for those of the President.  However, I record that having considered the material contained in the HREOC files and the documents, I am in agreement with the President that they do not disclose evidence of any unlawful act of discrimination under the Act against the applicant by reason of his disability.

The application will be dismissed.

Associate:

Dated:              2 October 1998