FEDERAL COURT OF AUSTRALIA

Paramasivam v Tay [2001] FCA 758

human rights

GAJA LAKSHMI PARAMASIVAN v PROFESSOR ALICE TAY

N158 of 2001

MADGWICK J

25 JUNE 2001

SYDNEY

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

HIS HONOUR:

1                     This is an application brought pursuant to s 46PO of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) (“HREOCA”) following the termination by the respondent, who is the President of the Human Rights & Equal Rights Commission (HREOC), of a complaint made against the respondent under the HREOCA by the applicant on 1 February 2001. The respondent had offered to terminate the applicant’s complaint against her, so as to allow her to come directly to this Court, if the applicant wished, pursuant to s 46PE which makes specific provision for complaints against the President or other Commissioners of HREOC or against HREOC itself. The applicant declined that offer.

2                     By her application in this Court, the applicant claims that the respondent discriminated against her in the following way:

“My expressions of corporate wisdom were not treated on the same basis as those [of] others in positions of power.”

The applicant sought as remedies an apology from the respondent and that the respondent should:

“Provide service based on the substance of my communications. If my [substance] is not suitable - explain why – objectively as per the law”.

3                     The applicant alleges that the action she is complaining of is discrimination pursuant to s 13(b) of the Racial Discrimination Act 1975 (“RDA”) and she refers also to “Articles 5(a), 5(c), 5(e)(i) + 5(e)(v)” of the International Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”) to which the RDA is intended to give effect.

The legislation

4                     Section 13(b) of the RDA is in the following terms:

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

…

(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 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.”

5                     While it is conceded that the respondent supplies services within the meaning of s 13, Mr Markus of the Australian Government Solicitor, who appears for the respondent and has assisted the Court with his customary fairness and ability, suggests that s 9 of the RDA may be more relevant to the applicant’s claims. So far as relevant, s 9 provides:

“(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.

…

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

(4)         The succeeding provisions of this Part do not limit the generality of this section.”

6                     Article 5 of the Convention obliged the States parties to the Convention, among other things, to guarantee the rights of everyone:

“…without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)     The right to equal treatment before the tribunals and all other organs administering justice;

…

(c)    Political rights, in particular the rights to … take part … in the conduct of public affairs at any level and to have equal access to public service;

…

(e)     Economic, social and cultural rights, in particular:

(i)            the rights to work…

…

(v)          the right to education and training”.

The nature of the applicant’s claims

7                     The applicant’s case arises out of decisions by the respondent to terminate two complaints made by the applicant to HREOC. The applicant says that the respondent treated her less favourably than the respondent would have treated another complainant by reason of racial discrimination.

8                     The applicant is a well-educated woman of Sri Lankan origin whose first language is Tamil.

9                     The first of her complaints to HREOC concerned a Ms Jureszek who was an executive of Hospital Services Australia Limited (“HSA”), the applicant’s erstwhile employer. The applicant’s complaint was fairly summarised by the respondent as follows:

“You claim that you were employed by HSA as a casual employee on 2 February 2000. You allege that during your employment your supervisor, Ms Milena Jureszek, treated you less favourably by denying you access to OSCAR, a computer Booking System, and claim that your race and/or Asian background was the reason for such treatment. You claim that your employment was terminated on 12 April 2000 because of your race.”

10                  In her decision, the respondent said:

“Your complaint was investigated as a possible breach of sections 9, 15 and 18A of the RDA. I have considered all of the information you and HSA have provided to the Commission. I am satisfied that your complaint of racial discrimination against HSA is lacking in substance. Pursuant to section 46PH(1)(c) of the HREOCA, I have decided to terminate your complaint of racial discrimination against HSA on that basis.”

11                  In her reasons for that decision, which the respondent gave to the applicant, the respondent traversed certain information which HSA had given to the applicant and concluded:

“The information before me appears to indicate that, through a contractual arrangement between HSA and your employment agency, Jocellin Jansson and Associate, you were assigned to work with HSA for a specified period of time to undertake a particular project. HSA advised that your contract arrangement was concluded solely on the ground that the work you were employed to do was finished and that you had shown that you were unsuitable to carry out debt recovery function, as an extended work arrangement outside the original contract, in the office.

…

To date, you have provided the Commission with no or insufficient objective evidence to indicate that you[r] race and/or Asian background were a factor in the alleged less favourable treatment that you may have received during your employment with HSA. Based on the information before me, I am satisfied that your complaint of racial discrimination against HSA is lacking in substance. Accordingly, I have terminated your complaint on that basis pursuant to section 46PH(1)(c) of the HREOCA.”

12                  The second complaint made by the applicant to HREOC that the respondent terminated, concerned Mr Jonathan Shier, well known to be the managing director of the Australian Broadcasting Commission (“ABC”) and Mr Linnane, the Director of Corporate Affairs of the ABC. The applicant’s complaint against Messrs Shier and Linnane was that:

“…they have discriminated against me on the basis of my Race. They have not responded to my expressions of Ethnic Knowledge. I believe that I have Equal rights as any other citizen to participate in the governance of this country. The acts of Mr Shier and Mr Linnane, I believe are in breach of section 13 of the [RDA] & Article 5 of the Schedule [that is, the Convention] attached to the Act”.

13                  It may be noted that the applicant complained as a citizen and she complained in terms that they “have not responded to [her] expressions”. The letters to Mr Shier and Mr Linnane that the applicant enclosed with her complaint involved the applicant having told Mr Shier in no uncertain terms that:

·        various of his actions at the ABC were unwise and socially unproductive;

·        he had acted illegally in using ABC funds and resources allegedly for his self-aggrandisement; and

·        he ‘discriminated against [her] ethnic knowledge’.

14                  As I would understand it, the references made by the applicant to ethnic knowledge referred to either illustrations of her criticisms drawn from Indian and/or Sri Lankan analogies or illustrated by reference to Hindu legends, or her general knowledge and the specialised accounting knowledge that she apparently possessed, upon the basis that such knowledge was being discounted because of discrimination against her by reason of her ethnic origins.

15                  In any event, the respondent’s decision, dated 23 January 2001 was:

“Your complaint was assessed under sections 9 and 18A of the RDA.

I have carefully considered all of the information you provided to the Commission. Pursuant to section 46PH(1)(c) of the HREOCA, I have decided to terminate your complaint of racial discrimination against Mr Shier and Mr Linnane as I am satisfied your complaint is lacking in substance. My reasons for this decision are set out below.”

16                 In her reasons for decision, the respondent indicated that the correspondence which the applicant had provided “indicates that Mr Linnane is still responding to your correspondence on behalf of Mr Shier”. The respondentcontinued:

“To substantiate a complaint of racial discrimination under…the RDA, it is not sufficient for a person to show that he or she is of a different race, colour, descent, national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, wholly or partly, or sufficiently connected to his or her race, colour, descent or national or ethnic background.

The evidence before me does not indicate that Mr Shier and Mr Linnane are not responding to your letter because of your race. Accordingly, I am satisfied that your complaint is lacking in substance and I have terminated you complaint on that basis.”

17                  In effect, the respondent was saying that each of the persons complained against was responding appropriately to the applicant but, in any case, there was no indication that her race was a factor in the treatment of her by either of them.

The complaint against the respondent

18                  On 20 December 2000, (the relevant letter was misdated 20 September 2000) following the respondent’s termination of the applicant’s complaint against Ms Jureszek, the applicant initiated her complaint to HREOC about the respondent. In her letter to the respondent, she said, so far as is presently relevant:

“If your organisation cannot even get the basic complaint right – it indicates that you will never be able to understand the deep issues relating to Racial Discrimination – and therefore the Public money given to you for such purpose is being wasted. You have demonstrated through your communications with me that you are unable to operate beyond the gross level. You have also proved to be driven by the position powers of those in higher positions than the complainant. The indicator that you are driven by the gross is that you require gross evidence of Racial Discrimination which is often not available because the perpetrators cover their tracks through position power and Racial Discrimination has become so entrenched in their minds that they do not consciously know that they are discriminating. If you are driven by gross evidence – then we do not need highly paid officers who are employed at a higher level of pay to inquire and find the truth. We can employ lower grade staff who can match gross evidence to the offense. Even machines can do this. The indicator that you are driven by position powers is in your letters. For example – your Summary of Response in the above matter – reproduces the statements made by Mr Bob West – Manager, Support Services of Health Services Australia Ltd – but does not recognise in any manner the response made by me to Mr West’s letter. You have also failed to attach the two letters to your Notice of Termination. If as President of the Human Rights and Equal Opportunity Commission you are unable to assess on an Equal basis – based on the substance – then you are failing in your job.”

19                  Later, following the respondent’s termination of the complaint against Messrs Shier and Linnane, the applicant wrote to Ms Rocky Clifford, Director, Complaint Handling at HREOC on 1 February 2001, saying:

“Professor Tay has stated that Mr Linnane had responded to my letters. Acknowledgement of a letter and unsubstantiated denial of responsibility are not responses to the substance. Any officer can do that. We do not need to pay experts high salaries to do that. Professor Tay has taken the trouble to read, understand and reproduce Mr Linnane’s statement that ‘Mr Shier is regularly advised of issues of concern to the audiences’. But there is no indication that Professor Tay has taken the trouble to understand my expressions of knowledge. Professor Tay has thus further substantiated that she thinks that my expressions of knowledge are inferior to those of Mr Linnane and Mr Shier. Since Professor Tay has not based her substantiation on the substance of my letters – it is clear that such thinking stems from Professor Tay’s assessment of my ethnic looks. If decisions are not based on the substance but rather on the persons writing and their positions – then there will be discrimination – based on the limits of the thinker. One who is driven by position power – would tend to favour those who are in positions of power – and not those who are in lower positions due to their Race, Age and/or Gender.”

20                  The respondent’s ultimate decision (see para 1 above) was to terminate the complaint against her on the ground that she was satisfied that the complaint was lacking in substance. Her reasons for decision were:

“In response to the Notice of Termination about the decision in the HSA case, you wrote to me on 20 December 2000 expressing dissatisfaction about my lack of understanding of racial discrimination and how more weight was given to the HSA response and none was given to your reply to that response. You expressed the view that the Commission only recognizes ‘gross’ discrimination and in essence this subsequently covers the subtleness of race discrimination. You state that:

By failing to recognise the material in my communication – on an equal basis to that of Mr Bob West – you have discriminated against me on the basis of my race. I therefore am making, through this letter a formal complaint against you to the Human Rights and Equal Opportunity Commission. The gross evidence of your act of discrimination is in the Notice of Termination – which does not recognise my statements but recognises those of Mr Bob West.

I have now had the opportunity to consider your complaint and have reviewed all the material on the file relating to Health Services Australia Ltd. I am still of the view that that complaint was lacking in substance. I am also very clear in my mind that the reason I made that decision was because of the evidence that was available and that it did not involve any consideration of your race. I am obliged under the statute to make decisions on complaints before me. On many occasions parties are dissatisfied with the decision I make. But these decisions are not made lightly and are based on the balancing of evidence, transparent processes and case precedent.

I appreciate your views on the subtleness of race discrimination. I agree with you that race discrimination does not necessarily make itself apparent through gross acts. It is often difficult to support complaints of race discrimination with clear evidence. I, and officers of the Commission, do understand and appreciate this dilemma. However, decisions of the Courts have clearly demonstrated that mere belief of discrimination is insufficient to substantiate a complaint of discrimination. The Commission is obliged to properly consider the case law expressed through the Courts. It would be remiss of the Commission to ignore such deliberations, as parties to complaints need some indication and level of certainty whether they have or do not have a case to make out or to answer. It is not the role of the Commission to determine whether discrimination has occurred; that is a role for the Courts. The role of the Commission, in relation to complaint handling, is to attempt to conciliate complaints that have not been terminated for any of the other reasons outlined in the law.”

The case before the Court

21                  The nub of the applicant’s present complaint against the respondent in relation to the latter’s handling of the complaint to HREOC about Ms Jureszek, as set out in her affidavit of 24 May 2001, is as follows:

“… I concluded that by failing to use important substance of my correspondence, Professor Tay had failed to use this objective basis as required by law. On the basis that the only quality about me that would have affected Professor Tay’s thinking was my race which was visible through my correspondence, I concluded that Professor Tay had been influenced by my race. I thought that if indeed Professor Tay was not so prejudiced she would have had the substance of my letters assessed objectively by an expert professional – such as the Auditor General. I concluded that by acting in breach of that particular section of HREOCA that referred to Equal Service – Professor Tay had acted in breach of section 9 of the [RDA]. Hence my complaint against Professor Tay.”

22                  The gravemen of the applicant’s dissatisfaction with the respondent’s handling of the Shier/Linnane complaint seems to be that the respondent failed to appreciate and deal with the substance of her complaint. In her affidavit of 24 May 2001, she explained:

“I had forwarded to Human Rights and Equal Opportunity Commission copies of considerable material expressing my wisdom in Resource Management, with specific reference to the restructure that Mr Jonathan Shier of the ABC was trying to push through. I was participating in the management of Public Resources. I concluded that if Professor Tay had had my material assessed by an expert – she would have realised that Mr Shier had failed to provide me with Equal Services as he is required to by the Laws governing ABC’s operations and his contract of employment. I concluded that Mr Shier – as Managing Director provided ‘Services’ through his special expertise in Resource Management and in this instance specific to Management of Public Resources in the ABC. I observed that Mr Shier undertook discussions relating to Resource Management with many White Australians in positions of power. Since I considered the material supplied by me to be of superior quality, I concluded that Mr Shier did not undertake similar discussions with me because I was of a lowly status with my Asian origins. I concluded that by acting in breach of the laws of the ABC which required all ABC employees to provide Service on Equal basis to members of the Public, Mr Shier had acted in breach of the Racial Discrimination Laws which were embedded in the ABC’s laws of operation. Hence my complaint to the Human Rights and Equal Opportunity Commission”.

23                  The applicant’s case is that the errors made by Professor Tay were not what one would expect of the President of the HREOC; that she had identified herself to Professor Tay as being of “Asian” origin and as having a Sri Lankan background; and a compelling inference arose from these alleged facts that the respondent’s alleged errors and mishandling of the applicant’s complaints were grounded in the respondent’s discrimination against her on account of that origin and/or background.

Conclusions

24                  As to the Jureszek complaint, it seems to me that the respondent did not misunderstand the applicant’s complaint. In any case, there is nothing to indicate that the respondent failed to take into account that which the applicant had provided in purported answer to the accounted matters given by Mr West. At least in part, what the applicant had to say in her response to the West version of affairs was misconceived, and it appears to me to have been open to the respondent not to find that the further material the applicant provided was persuasive.

25                  In reality, it is clear that the respondent simply formed a view that such evidence in support of her complaint as the applicant had provided was insufficient to show that her complaint was substantial enough to warrant any further involvement by HREOC. So far as I can see, there is not a shred of material to ground any inference that any failing by the respondent, or any aspect of the respondent’s treatment of the applicant, was on account of the applicant’s racial origins.

26                  As to the Shier/Linnane complaints, it is perfectly plain that the respondent dealt with what she understood the applicant’s complaint to be and there was a clear and considerable basis for that understanding. No error in dealing with the complaint on the part of the respondent has been shown. If, contrary to my view, it be the case that there was some error, then, again, there is no basis at all for any inference that racial discrimination played a part in the respondent’s handling of the complaint.

27                  The applicant argued that equal opportunity practice and experience teach that difficulties of many kinds beset proof of racial discrimination, and that these difficulties may be overcome by showing different treatment of the person putatively discriminated against from that accorded to others and by a lack of explanation for the difference. For the respondent, Mr Markus agreed that discrimination may be proved without direct or “smoking gun” evidence. But he denied that in this case any relevantly different treatment has been shown. If any different treatment has been shown, then there is no lack of explanation for it. The explanation is that office holders of all kinds err from time to time in the discharge of their offices because they are human beings and human beings are fallible.

28                  I agree with Mr Markus. The inevitable occasional manifestation of human fallibility does not, even if this was a case of such manifestation, fail to explain entirely any error or misunderstanding that may have occurred here. There is, as I have already indicated, in my view nothing at all, in the evidence presented to the Court, from which any inference of racial discrimination against the respondent might be drawn.

Disposition

29                  For these reasons the application will be dismissed. I will hear the parties briefly as to costs.

Associate:

Dated: 25 July 2001