FEDERAL COURT OF AUSTRALIA
ORDERS
Applicant | ||
AND: | First Respondent TECHNICAL AND FURTHER EDUCATION COMMISSION TRADING AS TAFE (NSW) Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondents’ costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 This proceeding originated in a complaint dated 17 June 2016 by the applicant, Mr Carl Payne, lodged with the Australian Human Rights Commission (the Commission) against the Technical and Further Education Committee (trading as TAFE NSW), TAFE Western, and Mr Ian Long. At all relevant times, TAFE Western was an administrative Institute of TAFE NSW. TAFE NSW is established by s 4 of the Technical and Further Education Commission Act 1990 (NSW) (TAFE Act). Mr Long is an employee of TAFE NSW.
2 In the complaint, Mr Payne complained of racial discrimination under the Racial Discrimination Act 1975 (Cth) (RDA). He alleged that he had been subject to racial discrimination on that basis that, when he sought to enrol in the Certificate III Civil Construction and Plant Operations course (the Course) offered by TAFE NSW commencing on 15 August 2016, he was advised by Mr Long that he was not eligible for the Course or the fee exemption as he was not of Aboriginal descent. His complaint was amended to add allegations that the respondents had victimised him contrary to s 27 of the RDA.
3 Mr Payne’s complaint was terminated by the Commission under s 46PH(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) by a notice under s 46PH(2) dated 10 April 2017 on the grounds that: (1) the complaint alleging victimisation was lacking in substance and/or misconceived; and (2) the Commission was satisfied that there were no reasonable prospects of the complaint alleging racial discrimination being settled by conciliation.
4 By an application dated 12 June 2017, Mr Payne claims that he has been the subject of racial discrimination and victimisation contrary to ss 8, 9, 13 and 18A of the RDA. Further, while there is no reference to s 27 of the RDA in the originating application, Mr Payne pressed the claim of victimisation in his written submissions filed on 4 December 2018 and no issue was taken in this regard by the respondents. Mr Payne claims relief in terms of a public apology, disciplinary action, and monetary compensation in the sum of $265,000.00 described as expected earnings, $65,000.00 for emotional and mental stress, and $200,000.00 for “the respondents[’] belligerence and lack of any remorse”. He further claims rehabilitation and “[p]sychological [t]herapy to understand my changed feelings and emotions (intimidation and resentment) when in the company of or competing with other races and my grandchildren $100,000.”
5 While the manner in which Mr Payne puts his case is not entirely clear, it is fair (as the respondents accept) to describe the relevant alleged conduct generally as:
(a) Mr Long not admitting Mr Payne into the Course because he was not Aboriginal; and
(b) TAFE NSW offering an “Aboriginal-brokered course” delivering preferential enrolment to Aboriginal students.
(Respondents’ Outline of Submissions at [18])
6 In this regard, the respondents accepted that the Course constituted the supply of a service to the public by TAFE NSW and was therefore capable of engaging s 13 of the RDA which proscribes discrimination in the supply of a service by reason of a person’s race (Respondents’ Outline of Submissions at [19]). The respondents also accepted that the way in which the Course was structured gave a preference to a racial group and that:
… in terms of section 9(1) of the [RDA], we accept that there is a preference based on race which has the purpose or effect of impairing the recognition, enjoyment or exercise on an equal footing of a human right, or, more specifically, in respect of section 13, we accept that there ha[s] been an offer of the supply of services on less than favourable terms and conditions by reason of race. … And we come here to justify that as lawful discrimination on the basis of section 8(1) of the [RDA], which incorporates special measures pursuant to article 1(4) of the [International Convention on the Elimination of All Forms of Racial Discrimination].
(T113.18-33)
7 Further, TAFE NSW accepted for the purposes of s 18A(1) of the RDA that Mr Long’s alleged conduct, if established, was undertaken in connection with his duties as an employee of TAFE NSW. As such, if Mr Long’s conduct amounted to unlawful discrimination, TAFE NSW accepted that it will be vicariously liable (Respondents’ Outline of Submissions at [20]).
8 However, the respondents contended that:
(1) Mr Long did not engage in any act that constituted racial discrimination because, irrespective of the information relayed by Mr Long to Mr Payne about his ineligibility for the Course, as a matter of fact the Course was already fully subscribed at the time that Mr Long reviewed Mr Payne’s application; and
(2) further and in any event, neither Mr Long’s conduct nor that of TAFE NSW in offering the Course constituted unlawful racial discrimination by reason of s 8(1) of the RDA because the preference given to Aboriginal students in the Course was a “special measure” within the meaning of Art 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention).
9 I note that the Convention was opened for signature on 21 December 1965 and entered into force on 2 January 1969, and that a copy of the Convention is reproduced in the Schedule to the RDA. Australia ratified the Convention on 30 September 1975. I also note that the Convention does not apply of its own force domestically but only to the extent to which it has been implemented by statute being relevantly the RDA: see e.g. Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, 480 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
10 For the reasons set out below, I agree with the respondents’ submission that the Course plainly constituted a special measure for the purposes of s 8 of the RDA and, therefore, that Mr Long’s conduct in advising Mr Payne that he did not meet the eligibility requirements for the Course in his capacity as an employee of TAFE NSW, did not on any view constitute unlawful discrimination contrary to ss 9 or 13 of the RDA. Mr Payne has therefore failed to establish that the respondents discriminated against him on the grounds of race contrary to the RDA. Accordingly, the application must be dismissed with costs.
11 In their outline of submissions at paragraphs [8]-[10], the respondents submitted that the only proper respondents to the proceedings are Mr Long and TAFE NSW on the basis that these were the respondents to the complaint lodged by Mr Payne in the Commission. They submit that the State of New South Wales was not a respondent to the complaint and therefore cannot be the subject of the proceedings.
12 By way of background, on 14 July 2017, Jagot J, the then docket judge, made orders disjoining TAFE Western and TAFE NSW. Subsequently, Jagot J made orders on 22 September 2017 setting a timetable for the parties to file submissions in relation to the proper respondents. On 17 October 2017, the (then) respondents, Mr Long and the NSW State Government, filed submissions to the effect that:
(1) the NSW State Government is not a proper respondent;
(2) on 11 August 2017 notices of address for service were filed on behalf of Mr Long and “TAFE Commission (incorrectly referred to as NSW State Government)”; and
(3) the correct reference for TAFE NSW as the respondent should be “The Technical and Further Education Commission” which is constituted by the TAFE Act.
13 The submissions dated 17 October 2017 did not, however, request that Jagot J make orders joining the TAFE Commission. In addition, during the course of a case management hearing on 11 April 2018, counsel for the respondent submitted that the appropriate respondent was the TAFE Commission, but did not elaborate on that submission or seek any orders joining them as a party to the proceeding.
14 It is unfortunate that orders were not ultimately sought until the trial correcting the respondents to the proceeding, particularly in circumstances where Mr Payne has been unrepresented throughout and the issue of joinder involved technical legal arguments. This issue should with respect have been properly raised and resolved well before trial.
15 That notwithstanding, it is plain that the TAFE Commission is the entity which should be the second respondent and that the NSW State Government is not a proper respondent because it was never a party to the complaint in the AHRC. In this regard, s 46PO(1) of the AHRC Act provides that an application may be made to this Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint” and not therefore against other persons, such as the State of New South Wales, who were not respondents to the terminated complaint: see e.g. Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [71] and [78] (the Court). Accordingly, orders were made at the commencement of the trial substituting the Technical and Further Education Commission trading as TAFE NSW for the State of New South Wales as the second respondent (T20.23).
16 Mr Payne relied on his statement of evidence filed on 16 October 2017 (the applicant’s statement) pursuant to orders made by Jagot J save that he did not ultimately rely upon annexures CP01, CP03 and CP16 to that statement to which the respondents had objected (T26.11-26.35). I note that annexure CP04 to Mr Payne’s statement was a transcript of a telephone conversation between Mrs Payne and Mr Long on 15 June 2016, while annexure CP05 was a transcript of a telephone conversation between Mr Payne and Mr Long on the same day. The respondents initially objected to the receipt of the transcripts in evidence on the basis that the telephone conversations had been recorded by Mr and Mrs Payne without Mr Long’s knowledge or consent contrary to the Surveillance Devices Act 2007 (NSW). Without in any way denying the potential seriousness of such conduct, ultimately the respondents did not press that objection given that they accepted that the transcripts were a faithful record of those conversations (T21.35).
17 In his outline of submissions filed on 4 December 2018, Mr Payne expanded upon the factual allegations made in his statement of evidence. Upon an objection being taken to paragraph [22] of his outline of submissions on the grounds of remote hearsay, Mr Payne conceded that the paragraph “doesn’t matter. Leave it out” (T32.29). Subject to these caveats, the applicant’s statement and the submissions to the extent that they contained allegations of fact were adopted by Mr Payne as true and accurate at the commencement of his evidence (T61) and were received as exhibits A1 and A2 respectively.
18 As I later explain, Mr Payne was cross-examined upon his evidence. It is apparent from his evidence that he feels very strongly that he has been unfairly treated. However, as I later explain, the question of whether he has been treated fairly is not the issue for this Court. Rather, he must establish racial discrimination with the meaning of the relevant provisions of the RDA.
19 The respondents relied upon the affidavit of Mr Ian Long affirmed on 22 January 2018 (the Long affidavit) and tendered a bundle of documents filed on 22 June 2018 entitled the Respondents’ Further Evidence (exhibit R1) addressing indigenous disadvantage in Australia (received subject to relevance (T84.15-21; orders made on 12 December 2018)). Mr Long was cross-examined by Mr Payne in a respectful manner, and gave careful and credible evidence.
20 Finally, I note that the parties relied upon two further documents. The first, filed on 19 October 2018, set out a table containing statements of alleged facts by the respondents, the applicant’s reply to each statement, and the respondents’ further response (the first consolidated statement of facts). The second document, which was filed on 25 October 2018, set out a table containing statements of alleged facts by the applicant with a separate column setting out the respondents’ response to those allegations (the second consolidated statement of facts). These were received as submissions in which the parties indicated those issues of fact on which they were agreed and those factual issues which were in dispute (T54-56).
21 It is not in issue that Mr Payne has been a long-term unemployed person for approximately 20 years and has been on Newstart Allowance since mid-2013 (applicant’s statement at p. 1).
22 It is also not in issue that Mr Payne suffers from illiteracy and dyslexia and other stress-related illnesses (first consolidated statement of facts at item 4). Mr Payne also contends that he is “socially and economically disadvantaged, living in a remote rural area 14[km] outside the town of Lake Cargelligo in standards equal to third world conditions. The applicant’s depression, anxiety, adjustment disorder and PTSD came to light and were diagnosed 16 months after being racially discriminated against and victimized” (ibid). The respondents agreed and said that these facts should be taken as admitted for the purposes of the proceedings, but contended that the facts were irrelevant to Mr Payne’s claim to have been discriminated against on the basis of his race (ibid).
23 As earlier explained, TAFE NSW is established under the TAFE Act. TAFE NSW’s principal function is to provide technical and further education services (TAFE Act, s 6). In exercising that function, s 6 of the TAFE Act provides that TAFE must:
(a) ensure that it provides technical and further education services to meet the needs of individuals and the skill needs of the workforce and, in particular, ensure that it provides basic and pre-vocational education as well as vocational education and training, and
(b) provide adults and young persons with a range of technical and further education services that recognise the changing nature of the working environment and the need for new skills and re-training, and
(c) provide, through formal arrangements and after consultation, technical and further education services that are relevant to the needs of industry, business, students and other client groups, and
(d) provide students with the maximum opportunity for progression by the linking or other articulation of courses and programs provided by the TAFE Commission and between those courses and programs and those provided by other education and training providers, and
(e) 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, and
(f) consult with relevant agencies to promote the effective and efficient use of resources and co-operation between TAFE establishments and other educational institutions.
(emphasis added)
24 At all material times before and including 2016, Mr Long was employed by TAFE NSW as an Aboriginal Consultant in the Aboriginal Education and Training Unit (AETU) of TAFE Western in Orange, New South Wales (Long affidavit at [2]). TAFE Western is, in geographical terms, the largest Registered Training Organisation in regional New South Wales. As to his role, Mr Long explained in his affidavit:
2. … I work in partnership with rural Aboriginal communities to identify training courses appropriate for developing employment pathways for aboriginal students, or providing opportunities for community capacity building. I negotiate with various internal and external stakeholders to optimise training outcomes for local Aboriginal people. External stakeholders include various Aboriginal organisations such as Aboriginal Land Councils, local employment agencies, and employers such as local councils and mining operations. Internal stakeholders include the senior management of TAFE Western (who allocate funds for the delivery of training courses), and the Head Teachers of the various courses offered by TAFE Western. I also oversee the daily operation of the Winhangnahna Aboriginal Learning Centre in Orange, which provides Aboriginal health training courses to meet needs of Aboriginal organisations, government health agencies and community controlled Aboriginal health services.
3. Prior to working for TAFE Western, I held a number of positions in which I was responsible for the planning and delivery of health services in regional communities with large Aboriginal populations. I also held a number of policy positions with the Aboriginal and Torres Strait Islander Commission (now disbanded). …
4. Through my work with TAFE Western, and my previous health-related roles and positions with ATSIC, I have developed extensive networks in Aboriginal communities, government agencies and Aboriginal health organisations, and have 25 years of experience in developing strategic initiatives that meet local and regional Aboriginal priorities, particularly in relation to the delivery of health and education services.
25 It is clear that Mr Long brought considerable relevant experience to his role with the AETU in working strategically with Aboriginal communities to deliver health and education services.
4.2 The complaint to the Commission
26 In his original complaint, Mr Payne alleged that he sought to enrol in the Course but was subsequently advised by Mr Long that he was not eligible for the course or the fee exemption as he was not Aboriginal. He claimed that this amounted to racial discrimination. That claim was accepted by the Commission and progressed as a complaint alleging racial discrimination against TAFE NSW under the RDA. A reply from TAFE NSW was received by the Commission on 12 September 2016 and sent to Mr Payne on the same day. Mr Payne provided further submissions by a letter dated 15 September 2016.
27 Subsequently, by a letter dated 22 September 2016, Mr Payne sought leave to amend the complaint to add Mr Long as a respondent alleging racial discrimination. Specifically, he claimed that on 15 June 2016, Mr Long advised him that he was not entitled to the fee exemption available for the course because he was “not Aboriginal”. Leave was granted by the Commission to amend the complaint to add Mr Long as a respondent in accordance with ss 46PA and 46PF(3) of the AHRC Act. A supplementary response was received from TAFE and Mr Long on 17 January 2017, which was sent to Mr Payne on 19 January 2017.
28 By an email to the Commission dated 1 February 2017, Mr Payne sought leave to further amend the complaint to add allegations of victimisation as outlined in his email of 30 January 2017. Those allegations by Mr Payne were summarised by the Commission in its reasons for decision as follows:
• TAFE NSW and Mr Long (the respondents) humiliated, offended, discredited, intimidated and threatened you in their response to your complaint before the Commission;
• the respondents attempted to persuade/coerce the Commission that you fabricated your claims, and cannot be trusted or taken seriously; and
• the respondents requested the complaint to be terminated.
29 The Commission granted leave for Mr Payne to amend the complaint to add further allegations of victimisation in accordance with s 46PA of the AHRC Act. Pursuant to an invitation by letter dated 1 March 2017, Mr Payne was invited to provide further information or comments in support of the complaint alleging victimisation. Mr Payne provided additional information to the Commission on 20 March 2017 including copies of transcripts of his telephone conversations with certain people.
4.3 The decision by the delegate of the AHRC President
30 By a notice of termination under s 46PH(2) of the AHRC Act, the Commission advised that Mr Payne’s complaint alleging unlawful discrimination and victimisation under the RDA against TAFE NSW and Mr Long had been terminated under s 46PH(1) of the AHRC Act. The Commissioner’s reasons were set out in a letter dated 10 April 2017 from the delegate of the AHRC President (the delegate) and may be summarised as follows.
31 First, the delegate decided to terminate that aspect of Mr Payne’s complaint which alleged racial discrimination against the respondents under s 46PH(1)(i) of the AHRC Act on the ground that there was no reasonable prospect of the matter being settled by conciliation. In this regard, the delegate found that conciliation discussions facilitated by it with the parties between 12 September 2016 and 27 February 2017 did not result in any agreed resolution of the complaint.
32 Secondly, the delegate found that the allegations of victimisation against TAFE NSW and Mr Long were misconceived and/or lacking in substance and therefore decided to terminate the complaint under s 46PH(1)(c) of the AHRC Act. In this regard the delegate found that:
I understand that you disagree with the submissions from TAFE NSW and Mr Long and are very dissatisfied with the nature of the response/s to your complaint.
However, overall there is insufficient information before me to support your claim that the respondents have engaged in conduct that could amount to any of the actions provided for in section 27(2)(a)-(d) of the RDA. There is insufficient information to support that in providing their responses to your complaint the respondents have refused to employ you, dismissed you, prejudiced your employment or engaged in any acts that could arguably be seen to constitute intimidation or coercion in relation to you.
While I appreciate that you are concerned about the content of the responses, the fact that a respondent has provided a response that a complainant does not agree with, has a different version of events, or has requested that a complaint be terminated does not reach the level of severity required to constitute intimidation or coercion.
5. FACTUAL FINDINGS AS TO THE MATTERS THE SUBJECT OF THE COMPLAINT
33 Ultimately the facts in issue were narrow in compass and are identified in my findings below.
5.1 Events leading up to the information session for the taking of enrolment applications
34 By way of background to development of the Course, Mr Long had for many years engaged with an Aboriginal community at a small Aboriginal reserve known as Murrin Bridge approximately 15 km by road north of Lake Cargelligo (Long affidavit at [11]). However, Murrin Bridge fell within the TAFE Western region and was therefore not ordinarily serviced by TAFE Riverina which includes the (more proximate) Lake Cargelligo TAFE College.
35 In about March 2016, Mr Long identified Murrin Bridge as a community which in his view would benefit from the delivery of the Course (Long affidavit at [12]; see also T92.46-93.11). He explained that the Course was “a largely practical course, suitable for a wide range of students with varying standards of literacy and numeracy, although it still has a theory component which in my experience Aboriginal students have some difficulties with” (Long affidavit at [12]). He considered that successful completion of this course would enable graduates to obtain employment operating road building and construction equipment with local councils and other plant operators (Long affidavit at [12]). He had conducted the same course in 2016 at a number of locations within the TAFE Western region including Forbes in March 2016 and Condobolin in April 2016 (Long affidavit at [12]).
36 There were 14 student places available in the Course. As to the reasons why the course was limited to this number, Mr Long explained that:
… the section that run the course informed me that we were only allowed to have 14 in the class because they only had two teachers, one teacher to look after half the class while they were working on machinery, and the other teacher that teach the guys about all the mechanical and theory stuff.
(T104.42-45)
37 The Course was able to be delivered out of funds for the delivery of what Mr Long and other members of the Aboriginal team described as an “Aboriginal-brokered course” (Long affidavit at [13]). The funding was provided by TAFE NSW, which quarantined a certain amount of the regional allocation specifically for Aboriginal-brokered courses (T90.5-11 (Long)). Senior management of TAFE Riverina and TAFE Western approved delivery of the course in Lake Cargelligo using staff and plant from the Orange (TAFE Western) campus.
38 Mr Long explained that the purpose of such courses was to provide Aboriginal communities with the opportunity to obtain a qualification suitable to their level of education and which provided skills in demand in the local region (Long affidavit at [13]). As such, priority was given to Aboriginal students in enrolments. Nonetheless, in the past Mr Long had enrolled non-Aboriginal students in Aboriginal-brokered courses, including the Certificate III Civil Construction and Plant Operations courses conducted in Forbes and Condobolin in 2016, in order to ensure the viability of the courses where the number of Aboriginal applications for enrolment were fewer than the number of places available (Long affidavit at [13] and the Learner Detail Reports at annexure IRL-7).
39 Following approval, Mr Long informed a number of his contacts working for public and private employment agencies about the availability of the course, including Ms Anne-Marie Davies from Sureway and Damien (whose surname Mr Long could not recall) from Joblink Plus. Mr Long also visited a number of local communities including Murrin Bridge and spoke with members of those communities and local Aboriginal organisations about the Course, advising that it was “targeting Aboriginal students”. He also informed the people with whom he spoke that there would be an information session held at the Lake Cargelligo campus at 10am on 7 June 2016, enrolments in the Course would be taken at that information session, and places would be allocated on a “first-come, first-served” basis (Long affidavit at [15]).
40 Damien was Mr Payne’s job search provider case manager. He contacted Mr Payne regarding the Course and said that it would be free for Mr Payne, and that Mr Payne could go and fill out the enrolment forms between 10am and 12pm on 6 June 2016 (T73.40-44). Mr Payne considered that the Course “would be an excellent opportunity to better myself and my standard of living, therefore reintroducing myself back into the workforce with a future” (applicant’s statement at p. 1). Damien arranged for Mr Payne to attend the Course enrolment on 7 June 2016 (applicant’s statement at p. 2).
41 Mr Long explained that the eligibility criteria for the Course were that the applicant “[h]ad to be Aboriginal, had to be long-term unemployed and, from my experience working with groups like this for 20-odd years, also, in the majority of cases, very low numeracy and literacy skills” (T108.25-28 (Long)).
5.2 The Course information session on 7 June 2016
42 Mr Long and an Aboriginal Student Support Officer, Mr Sandon Gibbs-O’Neill, held the information session at the Lake Cargelligo campus on 7 June 2016 which lasted about 15 minutes. Mr Long explained what happened at the session in his affidavit as follows:
17. At 10am, there were no students in attendance. There were various people I understood would be attending who were not present, and so I made a number of phone calls to find out whether people were in fact coming. I recall calling Anne-Marie Davies from Sureway. I also recall ringing Damien from Joblink and getting through to his voicemail, where I left a message for him.
18. By about 10:15am 16 or 17 students had turned up, and I began the information session. In the course of that session:
a. I thanked the students for attending;
b. I introduced myself and the Aboriginal Student Support Officer, Mr Gibbs-O’Neill, and explained our roles;
c. I introduced Dr Karen Ritchie, and explained that she would be helping out with the course (Dr Ritchie specialised in teaching students with numeracy and literacy difficulties, which was an area that had been identified from the delivery of the course in Forbes and Condobolin as requiring attention, particularly amongst the Aboriginal students, in order to enable the students to complete the theory part of the course);
d. I explained that the course would run for 4 weeks, and would be just like having a full-time job, requiring attendance 5 days per week from 9am to 5pm;
e. I explained that this was “an Aboriginal targeted course” and that “this is why the course is free”;
f. I explained that because of safety considerations and there only being 2 teachers available to deliver the course, we could only take 14 students;
g. I explained that we would be collecting enrolment forms that morning, but that we would need to get back to them to confirm their enrolment (this was to enable enrolments staff in Orange to locate, or generate, the student’s Unique Student Identifier);
h. I explained the forms they would need to complete, being the Enrolment Form and the Student Fee Exemption Application Form;
i. I indicated that we (by which I meant myself, Mr Gibbs-O’Neill and Dr Ritchie) were there to help them complete the forms if they required assistance, or to answer any of their questions.
(See also T88.12-17 (Long).)
43 At the conclusion of the information session, Mr Long gave application forms to Ms Davies from Sureway for a couple of other potential students (Long affidavit at [19]).
44 Upon hearing from Mr Long at approximately 10am, Damien rang Mr Payne advising that Mr Long had called to say that no-one had turned up for the course as yet and asked whether he still intended to attend (T73.44). Mr Payne responded that he had been told by Damien that the session was between 10am-12pm but said that he would be there in ten minutes. Damien replied that he would telephone Mr Long and let him know (applicant’s statement at p. 2).
45 Mr Payne arrived at the information session at about 11am (T68.1-7). It is not clear whether Mr Payne was present for any part of the 15 minute information session as Mr Long and Mr Payne appear to have different recollections. Mr Long explained that:
20. By about 11am as best I can recall most of the students who attended the information session had completed their forms, handed them in, and had left. There may have been a few who were still in the process of completing their forms, when Mr Payne (accompanied by his wife) and another gentleman (who I understand had also been sent along by Joblink Plus) named Shane Macguire arrived.
46 However, I accept Mr Payne’s recollection that Mr Long was speaking to a group when he arrived, given his detailed evidence about what occurred even though I find that Mr Payne was not present when Mr Long explained that the Course was “an Aboriginal targeted course”. In particular, Mr Payne said, and I accept, that when he arrived, Mr Long “was talking to the whole group” (at least those who were still present), that Mr Long “got some other guy to go get someone else [who] hadn’t turned up yet” because he was still in bed, and that Mr Long told the group that “he needs as many people as possible to – to enrol in this course because it’s going to ensure future funding and – and get more courses to the town because this is the – the first course that they’ve brought to the town and – and sort of just gave a big spiel like that …” (T68.33-44). I note also that the last part of this evidence accords with Mr Long’s evidence as to his hopes that the course would be a catalyst for future similar courses to be given in the area, including the possibility that they may generate income if also offered commercially.
47 I also accept Mr Long’s evidence that he spoke with Mr and Mrs Payne individually along the lines to which he deposed as follows and as to the reasons why he did not then mention that the course was an Aboriginal-brokered course:
20. … I recall that I welcomed Mr Payne and Mrs Payne, provided Mr Payne with an enrolment form to complete, and offered my assistance in completing the forms if required. I do not recall saying to Mr Payne that the course was an “Aboriginal targeted course” as I assumed that Joblink Plus had only sent down Aboriginal job seekers doing the course.
48 During the course of that conversation, Mr Payne also told Mr Long about how he was looking forward to doing the Course and how it could possibly change his life (T87.43 (Long)). Mr Long accepted that he did not explain to Mr Payne at this time that the Course was for Aboriginal people (T88.20 (Long)).
49 Following his conversation with Mr Long, Mr Payne completed the forms with the assistance of his wife (applicant’s statement at p. 2; T69.9-20). In the TAFE NSW Enrolment Form 2016 form which he completed, Mr Payne ticked the box marked “No” in answer to the question “Are you of Australian Aboriginal and/or Torres Strait Islander descent?” (Long affidavit at [20] and annexure IRL-8). He also ticked the box marked “No” in answer to the question “Do you consider yourself to have a disability, impairment or long term condition?” (ibid). Mr Payne also completed the Student Fee Exemption Application Form – 2016 and did not tick the boxes asking whether he was an Australian Aboriginal and/or Torres Strait Islander or a person with a disability (ibid). I accept the reasons given by Mr Payne as to why he did not tick the box indicating that he had a disability in these forms, namely, that even though his wife argued with him that he should tick the box, he considered that:
… the fact is that I don’t really have a disability learning. It’s how I – how I learn that – like I can pull any motor apart, petrol, diesel, whatever. I can pull it all apart throw it in a heap and put it all back together and repair it. I have dealerships wanting me to put their – their – fix their cars. I – I used to fit gas. I can – anything physical that I learn I exceed in. I just can’t learn from a computer or I can’t learn from a piece of paper so I don’t have a problem with learning. And that’s – so how can I answer that question?
(T71.16-23)
50 He was also concerned that he may need a “teacher’s proof or something like that” if he said he had a learning disability (T70.18).
5.3 Assessment of enrolment applications
51 Mr Long did not review the enrolment forms until later that week and only then noticed that Mr Payne had indicated on his application forms that he was not of Australian Aboriginal and/or Torres Strait Islander descent. Mr Payne was one of two non-Aboriginal job seekers referred by Joblink Plus (Long affidavit at [21]).
52 Mr Long’s evidence that the course was limited to 14 students and that 16 or 17 other students had already submitted their enrolment forms to Mr Long before Mr Payne completed his enrolment form was not challenged. Nor was Mr Long’s evidence in his affidavit as to the order in which he processed the application forms as follows:
23. By the time I read Mr Payne’s enrolment form, I had already processed the 16 or 17 other forms that I had received, which were all applications by students who identified as being of Aboriginal descent. I was also aware of another couple of possible applications from students who I understood were of Aboriginal descent. As there were only 14 places available in the course, and I had least 16 (and possibly as many as 19) applications from students who identified as Aboriginal, I was unable to offer Mr Payne a place in the course.
53 That evidence was slightly different from his evidence in cross-examination where Mr Long referred to having only 15 Aboriginal enrolments of the people who attended “[o]n the day” (from which I do not draw any adverse inference) (T96.7 (Long)). However, his evidence in cross-examination was otherwise consistent and the slight difference in numbers was not material. Mr Long said in the course of cross-examination by Mr Payne that he had two more enrolments, with one from Mr Payne and the other from another non-Aboriginal person:
Both of you come from the Joblink Agency, and you were the two last to come in, and the other non-Aboriginal fellow left before you, so hence, yours was at the bottom of the list. When I took all of those forms back and we’ve done all of the analysis and checked everything was filled in, the order that you and the other non-Aboriginal guy, they were on the bottom, not because of me being prejudiced, you were the two last in the room.
(T96.9-14).
54 Mr Long rang Mr Payne on 15 June 2016 to inform him that his application had been unsuccessful. Initially, he spoke to Mrs Payne and, about half an hour later, spoke to Mr Payne. As earlier mentioned, the parties were agreed that the contents of the telephone conversations to Mrs and Mr Payne as set out in annexures CP-04 and CP-05 respectively to Mr Payne’s statement were accurate. Furthermore, Mr Payne accepted that where there were differences in his description of the telephone conversation with Mr Long and the transcript of that conversation in CP-05, the Court should rely upon the transcript as an accurate record of the conversation (T65.8-13). In this regard I note that it appears that the differences between the transcript in CP-05 and Mr Payne’s statement were simply the result of Mr Payne seeking to summarise the effect of aspects of that conversation in his statement (see in particular at T65.23-67.19).
55 In the first, short call to Mrs Payne, Mr Long advised that unfortunately he had been under the impression that Mr Payne was of Aboriginal descent as the course was specifically for people of Aboriginal descent but, having looked at the forms, realised that he was not.
56 In his call to Mr Payne shortly thereafter, Mr Long explained that as the course was only funded for Aboriginal students, he was mistakenly under the impression that Mr Payne had Aboriginal heritage, but that “we haven’t got the fees to cover the exemption for you if you’re non aboriginal and the problem [is] it would cost you eight and a half grand” and that “the only way we are able to run this course is because we got specific money from the government to put aboriginal students through this course” (annexure CP05, applicant’s statement). 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 (Long affidavit at [25]; T89.38-40 (Long)).
57 It is clear that Mr Payne was very disappointed by the news, and he expressed his strong disappointment and the sense of injustice which he felt to Mr Long in the telephone call.
58 Difficulties in contacting a number of applicants to complete their enrolment led Mr Long to email Ms Moxon, who was responsible for completing enrolment administration, to suggest that Mr Payne and another person could be accepted into the course if “worst comes to worst”, i.e, if the other applicants did not complete their enrolments (Long affidavit at [26]; see also at T95.38-47 (Long)). Ultimately, however, all of the places in the Course were filled by persons who identified as being of Aboriginal descent (Long affidavit at [27]).
59 In this regard, 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 by people of Aboriginal descent, places would have been offered to non-Aboriginal people who were unemployed such as Mr Payne in line with his standard practice:
[MR PAYNE] Under the conditions that you proposed on this course, was there any chance of me ever being enrolled in that course? [MR LONG] Absolutely.
[MR PAYNE] And how would have that been? [MR LONG] In, as I said, 24 January next year I will have worked for TAFE for eight years. This was the most unique course in eight years I’ve ever run. The reason being it was the very first time in eight years I had to actually turn away a client. In every other course this nearly eight years, Aboriginal students sometimes are very apathetic, and, as a result, we don’t get a full group for a course. That costs a lot of money for teachers and everybody else when we don’t have many people in the class. So what do I do as standard practice? I go back to job agencies and ask them do they have any unemployed people. Not Aboriginal unemployed people, unemployed. Two courses that were run previously in that same year, one in March in Forbes, one in Condobolin in May had that approach. We had done exactly the same thing as Lake Cargelligo. The unfortunate thing, which was normal practice, was we did not get enough enrolments in Forbes or Condobolin, so I went back to the job agencies and we filled the course with non-Aboriginal people, which is normal practice. And it’s not only normal practice for this particular course, but normal practice in every course that I have ran in TAFE.
[MR PAYNE] Yes, thank you very much then. Thank you very much. So in your – what you’re stating now is that if you don’t fill a course, you go back to job agencies and you ask for any unemployed people to fill the course? [MR LONG] That would be normal, given it’s a job agency, yes.
[MR PAYNE] So you when you first approach the job agency, it would be fair to say that you’re asking for all Aborigines? [MR LONG] Correct.
[MR PAYNE] Yes. So … ? [MR LONG] That’s why I couldn’t understand why Damian, from Joblink, who I’ve never set eyes on, in, as I said again, eight years as at 24 January next year, that’s the first time in eight years that anybody that I have talked to in a job agency and asked to send unemployed Aboriginal people – that’s the first time anyone in a job agency has turned around and sent other people.
(T93.26-94.11)
6. THE STATUTORY REGIME FOR DISCRIMINATION CLAIMS UNDER THE AHRC ACT
60 Mr Payne’s complaint was determined by the AHRC under the AHRC Act as in force prior to 13 April 2017. I recently summarised the relevant principles in my judgment in the related proceeding instituted by Mr Payne’s wife, Mrs Tracey Payne, which was summarily dismissed: Payne v Davies [2019] FCA 1506 at [36]-[43]. The explanation of relevant principles which follows draws to some extent upon that summary.
6.1 Relevant provisions of the RDA
61 Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” (as defined in s 3(1) of the AHRC Act) under various Commonwealth anti-discrimination laws, including, relevantly, Part II of the RDA in which ss 8, 9, 13 and 18A appear: see s 46P(1), AHRC Act. Section 27(2) in Part IV of the RDA proscribes conduct that constitutes the offence of victimisation created by that section and also constitutes “unlawful discrimination” for the purposes of Part IIB: see the definition of “unlawful discrimination” at paragraph (e).
62 Commencing with s 9 of the RDA, subs 9(1) relevantly provides that:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race … 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.
(emphasis added)
63 The terms of s 9(1) are taken directly from Article 1 of the Convention and must, therefore, be construed in that international context: Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451 (Baird) at [58] (Allsop J (as his Honour then was) (with whose reasons Spender and Edmonds JJ agreed)) and the authorities cited there; Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 (Wotton) at [511] and [517] (Mortimer J).
64 As to the proper construction of s 9(1) of the RDA, Mortimer J recently observed in her helpful exposition of relevant principles in Wotton that:
530. It is critical, as Allsop J observed in Baird … at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.
531. The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.
(emphasis in the original)
65 Secondly, the phrase “based on race” in s 9(1) means “‘by reference to’ and involve[s] no causal connection between race and the relevant distinction or exclusion”: Baird at [48] (Allsop J). Furthermore, “whilst s 9 may involve a question of purpose and thus considering why the person acted as he or she did, there is no necessity otherwise to examine motive or intention to discriminate”: Baird at [54] (Allsop J, citing among other decisions, Purvis v New South Wales (2003) 217 CLR 92).
66 Thirdly, in rejecting the propositions that it was a necessary element of s 9(1) that there be an obligation to do the act in question or that there was a need to demonstrate a direct comparator or comparison, Allsop J in Baird also held that:
61. A broad interpretation of s 9(1) apt to encompass all kinds of acts of racial discrimination is to be preferred in furtherance of the purpose of eliminating racial discrimination in all its forms and manifestations … Further, it is important to treat the terms of s 9(1) as comprising a composite group of concepts directed to the nature of the act in question, what the act involved, whether the act involved a distinction etc based on race and whether it had the relevant purpose or effect: see Schwelb E, “The International Convention on the Elimination of all forms of Racial Discrimination” (1966) 15 International and Comparative Law Quarterly 996 at 1001.
62. … The RD Act and the Convention were directed to the real world. To achieve the broad purpose referred to requires broad and elastic terminology. As Gibbs J said in Gerhardy v Brown [(1985) 159 CLR 70] at 86:
“The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention, are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence.”
67 Mr Payne also relies upon s 13 of the RDA. That section relevantly provides that it is unlawful for a person who supplies services to the public (or to any section of the public) to refuse to supply those services to another person, or to do so only on less favourable terms, by reason of the race of that other person.
68 Fourthly, by virtue of s 8, relevantly ss 9 and 13 do not apply to special measures to which Art 1(4) of the Convention applies, being in essence measures taken for the sole purpose of securing advancement of racially disadvantaged groups. I discuss the principles relevant to assessing whether the Course in this case constituted a special measure later in my reasons.
69 In the fifth place, Mr Payne relies upon s 18A of the RDA to affix liability to TAFE NSW for Mr Long’s alleged conduct. Section 18A provides that employers are vicariously liable for acts done by their employees in connection with their duties of employment that are unlawful under Part II, save where the employer took all reasonable steps to prevent the employee from doing the act.
70 Finally, s 27 (quoted below at [112]) makes it an offence relevantly for a person to intimidate or coerce, or impose any penalty upon, a person by reason of the fact that that other person has made a complaint under the RDA or the AHRC Act, or has provided information or documents to a person exercising powers under that legislation.
6.2 The statutory regime established by the AHRC Act for the making of complaints of unlawful discrimination
71 It is well established that the regime established by the AHRC Act is an exclusive one for remedying contraventions of the various Commonwealth discrimination laws, which include the RDA: see e.g. Picos v Australian Federal Police [2015] FCA 118 at [36]-[38] (Perry J) and Picos v Servcorp Limited (No 2) [2015] FCA 343; (2015) 236 FCR 141 at [18] (Perry J). As a result, a contravention of (relevantly) Part II and s 27(2) of the RDA gives rise to a right only to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] (RD Nicholson J); French v Gray [2013] FCA 263; (2013) 217 FCR 404 at [149]-[151] (Besanko J); Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye) at [71] (the Court).
72 Relevantly, Part IIB of the AHRC Act prescribes a number of steps as follows.
(1) Section 46P of the Act provides that a written complaint may be lodged by a person aggrieved with the AHRC alleging “unlawful discrimination” as defined in s 3(1).
(2) A complaint under s 46P must be referred to the President of the AHRC (s 46PD).
(3) The President must then inquire into the complaint and attempt to conciliate it (subs 46PF(1)).
(4) The President may terminate a complaint on a number of grounds including that the President is satisfied that: the alleged unlawful discrimination is not unlawful discrimination; the complaint was trivial, vexatious, misconceived or lacking in substance; or there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1)(a), (c) and (i) respectively).
(5) Relevantly, where a complaint is terminated under s 46PH and the President has given notice of the termination, an affected person in relation to the complaint may apply under s 46PO(1) within 60 days to the Federal Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint subject, importantly, to s 46PO(3).
(6) The Court has power to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (subs 46PO(4)).
73 With respect to point (5) above, s 46PO(3) provides that:
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
74 The Full Court considered the purpose and effect of s 46PO(3) in Dye, explaining that:
46. … s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [v State of New South Wales] [2000] FCA 1565 at [8].
75 As the Full Court then continued, “the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination” (Dye at [47] (the Court)). In this regard, while different facts may be alleged by an applicant in court proceedings from those alleged in the terminated complaint, those new facts must not differ in substance from those formerly alleged (ibid). Furthermore, the terms of a complaint made to the Commission should not be read subject to the same strictures as apply to a pleading in a court, given that s 46PR of the AHRC Act requires that the Court is “not bound by technicalities or legal forms”. Nonetheless, s 46PR does not detract from the proposition that the “substantive directions” given by s 46PO(3) must be respected (Dye at [48] (quoting Maghiar v Western Australia [2002] FCA 262 at [18] (French J))).
7. NO JURISDICTION TO ENTERTAIN ANY CLAIM OF DISABILITY DISCRIMINATION
76 Applying the authorities referred to above, s 46PO(3) prevents an applicant from effectively bypassing the procedures established by the AHRC Act by seeking relief from the Court on the basis of allegations of discrimination other than those fairly the subject of the terminated complaint. The originating application filed by Mr Payne alleges discrimination against the respondents contrary to ss 9, 13 and 18A of the RDA consistently with the subject matter of the terminated complaint. (While s 8 is also referred to, as earlier mentioned that section does not render any discrimination unlawful.) However, some of the material on which Mr Payne relies appears to allege that he was discriminated against on the grounds of his disability presumably contrary to Part 2 of the Disability Discrimination Act 1992 (Cth). As no allegations were made of disability discrimination in the terminated complaint, the Court lacks jurisdiction to entertain any such claims. As the respondents submit, an allegation of discrimination on this ground “is not simply putting a different legal complexion on the same or substantially the same acts or omissions that are properly the subject of these proceedings” (Respondents’ Outline of Submissions at [12]).
8. DID MR LONG DO ANY ACT INVOLVING A DISTINCTION BASED ON RACE?
77 The respondents submitted that Mr Long did not engage in any act that amounted to racial discrimination, quite apart from the question of whether the Course constituted a special measure. In their submission:
22. … When Mr Long reviewed Mr Payne’s application, at least 16 students had already been processed, filling the 14 places available for the Course at that point in time. In other words, Mr Long did not refuse Mr Payne’s enrolment on the basis of race, but rather on the basis that the available spaces in the Course had already been filled. There was no act involving an exclusion or preference or refusal on the ground of race.
78 The respondents also submitted that, even though Mr Long explained that Mr Payne was not eligible for the course in the telephone conversation on 15 June 2016 on the ground that he was not Aboriginal (see above at [56]), this “does not change the anterior historical fact that the Course was already fully subscribed by the time Mr Long reviewed Mr Payne’s application. At that point in time, even if Mr Payne was Aboriginal, he would not have been offered place [sic] in the Course” (Respondents’ Outline of Submissions at [23]). While Mr Villa SC for the respondents accepted in oral argument that even if Mr Payne had been the second person to apply for enrolment, his application would have been refused because of the preference given to Aboriginal people in the enrolments (T119.31-47), he submitted that this was “a different hypothetical situation” which did not reflect what in fact occurred (T120.15-20). Furthermore, as Mr Villa SC emphasised, when places did potentially become available in the Course, Mr Long put Mr Payne’s name forward for the Course in accordance with his standard practice in order to ensure the viability of such courses (see above at [59]).
79 I note in this regard that the fact that Mr Long was labouring under the misunderstanding when he spoke to Mr Payne on 15 June 2016 that Mr Payne would have to pay approximately $8,500.00 if he were to undertake the course perhaps explains why Mr Long did not mention the possibility that Mr Payne might still be offered a place if the Course was not ultimately fully subscribed by Aboriginal applicants (see above at [56]). It will be recalled that he discovered only later that Mr Payne would have to pay only $240.00 to undertake a Certificate III course.
80 There is some force in the respondents’ submission that there was no act by Mr Long involving an exclusion based on race in the factual circumstances of this case quite apart from s 8 of the RDA. Mr Payne would have been excluded from the Course in any event because his application for enrolment was made after the Course was fully subscribed by persons meeting the criteria for the Course, Mr Long having applied a “first-come, first-served” criteria. However, it is ultimately unnecessary to determine this question as the Course was without doubt a special measure within Art 4(1) of the Convention. As such, by virtue of s 8 of the RDA, in simply applying the criteria for the Course that the person must be Aboriginal, Mr Long in his capacity as an employee of TAFE NSW would not have engaged in unlawful discrimination contrary to ss 9 or 13 of the RDA in any event.
9. WAS THE COURSE A SPECIAL MEASURE?
9.1 Principles by which it is determined whether the acts in question constitute special measures
81 Section 8 of the RDA provides that:
(1) This Part [i.e. Part II] 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).
…
82 Article 1(4) of the Convention, which is picked up by s 8 of the RDA, provides:
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.
(See also Art 2(2) of the Convention, imposing an obligation upon States parties to take special measures when the circumstances so warrant.)
83 A number of particular points should be emphasised with respect to s 8 of the RDA.
84 First, as is apparent from a proper reading of s 8 in light of Art 1(4), s 8 is properly not seen as an exception to the non-discrimination principle in s 9. Thus, as Brennan J (as his Honour then was) explained in Gerhardy v Brown (1985) 159 CLR 70 (Gerhardy) at 128-129:
… it has long been recognized that formal equality before the law is insufficient to eliminate all forms of racial discrimination. In its Advisory Opinion on Minority Schools in Albania [(1935) Ser. A/B No. 64, at p. 19], the Permanent Court of International Justice noted the need for equality in fact as well as in law, saying:
Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.
It is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would result in inequality in fact. …
As Mathew J. said in the Supreme Court of India in Kerala v. Thomas [[1976] 1 SCR 906 at 951], quoting from a joint judgment of Chandrachud J. and himself:
It is obvious that equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.
In the same case, Ray C.J. pithily observed [[1976] 1 SCR 906 at 933]:
Equality of opportunity for unequals can only mean aggravation of inequality.
The validity of these observations is manifest. Human rights and fundamental freedoms may be nullified or impaired by political, economic, social, cultural or religious influences in a society as well as by the formal operation of its laws. Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”.
85 Similarly, Gageler J emphasised in Maloney v The Queen [2013] HCA 28; (2013) 252 CLR 168 (Maloney) at [327] with respect to the role of special measures under the Convention:
327. … What is required is the removal of all differential treatment that impacts on the equality of enjoyment of a human right by persons of different races save for differential treatment that can be judged, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to result from the application of criteria that are both applied in pursuit of a legitimate aim and proportionate to the achievement of that aim. The [Racial Discrimination] Committee’s characterisation of special measures not as an exception to the principle of non-discrimination but as “integral to its meaning” and “essential to the … project of eliminating racial discrimination and advancing human dignity and effective equality” underlines an international understanding that the range of differential treatment that is capable of justification is closely circumscribed.
86 Secondly, in explaining the elements necessary to establish that an act constitutes a special measure, Brennan J said in Gerhardy at 133:
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.
87 Thirdly, the elements of a special measure identified by Brennan J notably do not include any restriction upon the form which the special measure may take. This accords with the fact that the Convention does not require special measures to be legislative in nature, as Brennan J observed in Gerhardy at 135. Rather, it is left to State parties to the Convention to determine for themselves the most appropriate means by which their international obligations under the Convention are implemented domestically. Equally it follows that s 8 of the RDA is not limited to “exempting” certain measures of a legislative kind from the provisions of Part II of the RDA rendering racial discrimination unlawful.
88 Finally, Mr Payne submitted that there was a lack of clarity as to where the line should be drawn, that is, “when has the special measures served its purpose?” (T137.35), and suggested that discrimination such as the Course in favour of Indigenous Australians could not be justified when others in Australia also suffered disadvantage through disabilities and other factors in terms of their access to education, qualifications and employment.
89 As to the first submission, while no bright line may exist, discrimination for the advancement of particular racial groups does not constitute a special measure for the purposes of Art 1(4) of the Convention and therefore, s 8 of the RDA, where the objectives for which the measure was taken have been achieved in terms of ensuring the equal enjoyment or exercise of human rights and fundamental freedoms. As Brennan J explained in Gerhardy at 136, “[t]he degree of advancement which a special measure is intended to achieve is ‘adequate’. The purpose of a special measure must not be to convert the beneficiaries from a disadvantaged class to a class that enjoys greater privileges than are necessary to ensure their ‘equal enjoyment of human rights and fundamental freedoms’.” However, for reasons which I explain below, on no view can it be said that that point has been reached with respect to Australia’s Indigenous peoples.
90 As to Mr Payne’s second submission, while not in any way underestimating the disadvantages from which other groups within the community may suffer and from which Mr Payne personally may have suffered, the issue which Mr Payne raises in this proceeding is whether the Course constituted unlawful discrimination under ss 9 and 13 of Part II of the RDA. That question must be answered by applying the RDA which includes s 8 providing that Part II of the RDA does not apply to special measures under Art 4(1) of the Convention. The existence of disadvantage elsewhere in the community does not constitute a reason for the Court to decline to apply provisions of the RDA.
9.2 Ruling on the relevance of evidence tendered by the respondents in support of the submission that the Course was a special measure
91 As the respondents submit, when determining whether or not a law constitutes a “special measure” within the meaning of Art 8 of the Convention, the Court is required to undertake a particular form of fact-finding akin to the determination of constitutional facts. For example, in Gerhardy at 88, Gibbs CJ held that the Court may take judicial notice of facts that are notorious and rely upon material placed before it such as (in that case) the report of the Pitjantjatjara Land Rights Working Party of South Australia, in finding whether the ethnic groups for whose benefit the law was enacted required special protection within the meaning of Art 1(4) of the Convention: see also to similar effect, Mason J at 105 and Brennan J at 141-143.
92 The present case does not concern the validity of a law, in contrast to the decision in Gerhardy where the issue was whether the Pitjantjatjara Land Rights Act 1981 (SA) was inconsistent with the RDA and invalid (in the sense of inoperative) by operation of s 109 of the Commonwealth Constitution. Rather this case concerns whether the criteria for a course determined by an educational body established under State law is unlawful in the sense in which that term is employed under the joint scheme established by the RDA and AHRC Act. Nonetheless, no reason was given, or is apparent, as to why the Court should not have regard to material of the kind relied upon by the respondents in considering whether Aboriginal people in remote NSW required special measures within the meaning of Art 1(4) with respect to their education, training and assistance with obtaining employment. In addition to Mr Long’s affidavit and the materials produced by TAFE NSW annexed to that affidavit deposing to the particular disadvantages faced by Aboriginal people in the regions covered by TAFE Western, the respondents sought to rely upon their volume of further evidence (exhibit R1) which comprised:
(1) Extracts from the Australian Bureau of Statistics (ABS), 4714.0 – National Aboriginal and Torres Strait Islander Social Survey, 2014-15 (released 28 April 2016) addressing:
(a) Labour Force Characteristics (ABS 2014-15 Survey – Labour Force Characteristics);
(b) Education (ABS 2014-15 Survey – Education);
(2) Extracts from the Australian Bureau of Statistics (ABS), 4727.0.55.006 – Australian Aboriginal and Torres Strait Islander Health Survey: Updated Results, 2012-13 (released 6 June 2014) addressing:
(a) Highest Educational Attainment (ABS 2012-13 Survey – Highest Educational Attainment);
(b) Labour Force Characteristics (ABS 2012-13 Survey – Labour Force Characteristics);
(3) Australian Government, Department of the Prime Minister and Cabinet, Indigenous Advancement Strategy Grant Guidelines March 2016 (the 2016 Grant Guidelines); and
(4) Australian Government, Department of the Prime Minister and Cabinet, Closing the Gap: Prime Minister’s Report 2018 (Closing the Gap 2018).
93 The statistics and abstracts contained in the first and second categories of these documents have been compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905 (Cth) (see s 159 of the Evidence Act 1995 (Cth)).
94 The material described above is directly relevant to the question of whether the Course constitutes a special measure so as to fall within s 8 of the RDA in line with the approach adopted by the High Court in Gerhardy. Mr Payne’s objection to the tender of these materials as irrelevant must therefore be dismissed.
9.3 Have the respondents established that the Course constituted a special measure?
95 For the reasons which follow, the evidence clearly establishes that the Course constituted a special measure.
9.3.1 The Course confers a benefit on members of a class based on race
96 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.
9.3.2 The sole purpose of the Aboriginal-brokered Course
97 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.
98 That purpose accords with the obligation on TAFE NSW to exercise its functions in accordance with s 6(e) of the TAFE Act. It also accords with evidence as to the active development at all relevant times by TAFE NSW and, in particular, TAFE Western, of “programs to improve access to education and training for Aboriginal peoples, and to improve the education and employment outcomes of Aboriginal students”: Long affidavit at [8]; see also the TAFE Western Aboriginal Education and Training Statement of Intent at annexure IRL-3, p. 49; and the 2015 Annual Report, annexure IRL-2, at pp. 40 and 42, which referred among other things to the commitment to “bridging the gap”, the disadvantage confronted by Aboriginal peoples in terms of education and employment, and specific expenditure on Aboriginal Education Programs in 2013, 2014, and 2015. Other programs open only to Aboriginal and Torres Strait Islander students developed by TAFE Western included:
(1) IPROWD (Indigenous Police Recruiting Our Way Delivery), a program designed to assist Aboriginal people to gain entry to the New South Wales Police Academy at Goulburn, being the first step to becoming an officer in the NSW Police Force; and
(2) iSmile, which is a training program designed to provide Aboriginal students with a pathway either to a career in oral health therapy and dentistry or to other health industry areas.
(Long affidavit at [8] and annexures IRL-4 and IRL-5.)
99 The goals underlying the Course and these other programs are also reflected in the TAFE Western Reconciliation Action Plan for 2016 to 2018 (TAFE Western RAP) which states among other things:
TAFE Western’s vision for reconciliation is that the education and employment outcomes of Aboriginal students will be at least equal to those of non-Aboriginal students; that we make a significant and sustainable difference to the education and employment outcomes of all our students and all their communities, both Aboriginal and non-Aboriginal; that all our staff have a commitment to achieving this aspiration, through mutual respect and the recognition and celebration of Aboriginal peoples and their Cultures.
TAFE Western is determined to address the disadvantage caused by the racism and stereotyping Aboriginal peoples experience. To implement the objectives of the NSW TAFE Commission Act 1990, TAFE Western will “bridge the gap” by improving:
• access to education and training for Aboriginal peoples
• the literacy and numerouacy of our Aboriginal students
• the education and employment outcomes of our Aboriginal students
• the completion of qualifications by our Aboriginal students
• the careers of our Aboriginal staff.
TAFE Western’s approach to Aboriginal education and training is underpinned by four core principles:
• Partnership and engagement with Aboriginal peoples and their Communities
• Innovative delivery to improve access and outcomes for our students
• Developing the Cultural Competence of the whole organisation
• Building the economic independence of Aboriginal peoples but not at the expense of Cultural identity.
(Long affidavit, annexure IRL-6, at p. 61)
9.3.3 The Course and funding are necessary in order for the beneficiaries to enjoy equal human rights and fundamental freedoms
100 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.
101 In this regard, it was not in issue that TAFE Western is geographically the largest of the 10 TAFE NSW Institutes, servicing an area over 50% of New South Wales (the Central West, North Western and Far West regions of New South Wales) but with less than 5% of its total population (Long affidavit at [5]; first consolidated statement of facts at item 5). As Mr Long explained, these areas include some of the most isolated and remote communities in Australia.
102 Further, the proportion of Aboriginal and/or Torres Strait Islanders amongst the population of the catchment area of TAFE Western is higher than the proportion of Aboriginal and/or Torres Strait Islanders amongst the general population of NSW. This is reflected in the TAFE Western Annual Report 2015 (2015 Annual Report) which records that approximately 23% of its students were Indigenous (Long affidavit, annexure IRL-2, at p. 39).
103 Aboriginal people in these remote communities experience disadvantage in terms of access to education, educational achievement, and access to employment opportunities. As stated in the TAFE Western RAP as to the employment and education levels of its Aboriginal students:
… Aboriginal students come to TAFE Western with statistically lower levels of educational outcomes from school and lower levels of employment. Across western New South Wales, around a third of the population have Year 10 completion as their highest level of schooling and around 50 per cent have no post-school qualification. For TAFE NSW state-wide, around 27 per cent of the students had completed Year 10 completion as their highest level of schooling. For TAFE Western, around 51 per cent had completed Year 10 or lower as their highest level of schooling. For our Aboriginal students, 64 per cent had completed Year 10 or lower as their highest level of schooling.
(Long affidavit, annexure IRL-6, at p. 62)
104 The evidence that Aboriginal populations in remote communities experience even greater disadvantage in terms of access to education, educational achievement, and access to employment than the population generally, also accords with the ABS survey reports.
(1) Thus, according to the ABS 2014-15 Survey – Labour Force Characteristics:
(a) the unemployment rate was higher for Aboriginal and Torres Strait Islander people aged 15 years and over in remote areas (27.4%) than in non-remote areas (19.3%);
(b) a larger proportion of Aboriginal and Torres Strait Islander people living in non-remote areas were working full-time (29%), compared with 21% in remote areas; and
(c) the unemployment rates for Aboriginal and Torres Strait Islander people were higher than those for non-Indigenous people in all age groups.
(2) According to the ABS 2014-15 Survey – Education, after adjusting for differences in the age structure of the two populations, Aboriginal and Torres Strait Islander people aged 15 years and over were:
(a) less than half as likely as non-Indigenous people to have completed Year 12 or equivalent (rate ratio of 0.4), and
(b) significantly less likely to have a non-school qualification (rate ratio of 0.8).
(3) The ABS 2014-15 Survey – Education also noted that an increase in attainment of a non-school qualification between 2002 and 2014-15 “is largely due to an increase in the proportion of people who have completed a Certificate level qualification”.
(4) Consistently with these statistics, the ABS 2012-13 Survey – Highest Educational Attainment and Labour Force Characteristics reported that:
(a) Aboriginal and Torres Strait Islander people aged 20 years and over were significantly less likely than non-Indigenous people to have completed Year 12 or a Certificate III or above (rate ratio of 0.6);
(b) unemployment rates for Aboriginal and Torres Strait Islander people were three to seven times as high as the comparable rates for non-Indigenous people;
(c) after adjusting for differences in the age structure of the two populations, Aboriginal and Torres Strait Islander people aged 15-64 years were around four times as likely as non-Indigenous people to be unemployed (rate ratio of 4.2); and
(d) in 2012-13, Aboriginal and Torres Strait Islander people in non-remote areas were more likely than those in remote areas to be working (49% compared with 44%).
105 The problems identified by statistics of this nature informed the national approach adopted by Australian governments in March 2008 to work collaboratively to achieve equality in health and life expectancy between Aboriginal and Torres Strait Islander people and non-Indigenous Australians by the year 2030. As the Closing the Gap 2018 report at p. 11 explains:
The Council of Australian Government (COAG) implemented the Closing the Gap strategy, setting six ambitious targets across the areas of health, education and employment to drive progress.
The strategy recognised that closing the gap in Indigenous disadvantage would require long-term, generational commitment, with effort to be directed across a range of priority areas: early childhood, schooling, health, economic participation, healthy homes, safe communities and governance and leadership.
106 Nonetheless, the report found that while certain targets, including to halve the gap in Year 12 attainment by 2020, were on track and that there had been an increase in the number of Aboriginal and Torres Strait Islander students progressing to higher education, other targets were not. These included the targets of closing the gap in school attendance by 2018, halving the gap in reading and numeracy by 2018, and relevantly halving the gap in employment by 2018 (at pp. 9 and 11). Furthermore, even though the report stated that NSW was the only jurisdiction then on track to meet the employment target (at p. 77), it had not yet done so.
107 Thus, the Closing the Gap 2018 report pointed specifically to the need for continuing efforts to close the gap in higher education, recognising the link between completion of higher course levels, including Certificate III courses, and improved employment outcomes (at p. 68). The report also referred to various strategies being employed specifically to assist more remote and regional students to pursue their education (ibid). That such measures may assist in securing adequate advancement of Aboriginal and Torres Strait Islander people towards equality in fact is a matter involving a political assessment which it is not the function of a municipal court to decide: Gerhardy at 138-139 (Brennan J). At most, the Court must decide the limits within which such assessments might reasonably be made, as is plainly the case here in light of the evidence including the material collated and analysed by the ABS.
9.4 Conclusions on the question of special measures
108 While Mr Payne seeks to emphasise different points, no evidence was led which contradicted that of the respondents examined above to the effect that when compared with the general population of NSW and of regional NSW, the Aboriginal and/or Torres Strait Islander population in regional NSW:
(1) has lower levels of literacy and numeracy;
(2) experiences disadvantage in terms of access to education;
(3) has lower levels of educational achievement; and
(4) experiences greater disadvantage in terms of access to employment.
109 These findings do not deny that there may be a greater number of non-Indigenous people who suffer from low levels of literacy, limited education, and unemployment, within NSW as Mr Payne alleges. However this does not address the respondents’ evidence which establishes a difference in the proportion of Indigenous and non-Indigenous Australians who are suffering from these disadvantages and that in the case of Indigenous Australians, there is a significantly greater proportion who suffer from these disadvantages. That inequality underpins initiatives such as the national Closing the Gap strategy and the 2016 Grant Guidelines.
110 Equally, Mr Payne’s reference to the inspirational achievements of some Aboriginal people, with respect, misses the point. As the respondents submitted, “[t]he achievement of some Aboriginal Australians does not deny the fact of disadvantage when comparing rates of educational achievement between Aboriginal and non-Aboriginal Australians” (first consolidated statement of facts at item 6(c)).
111 It follows for these reasons that the claim of racial discrimination against both respondents must be dismissed.
10. ALLEGED ACTS OF VICTIMISATION
112 Finally, s 27, which appears in Part IV of the Act concerning “Offences” provides that:
(2) A person shall not:
(a) refuse to employ another person; or
(b) dismiss, or threaten to dismiss, another person from the other person’s employment; or
(c) prejudice, or threaten to prejudice, another person in the other person’s employment; or
(d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person;
by reason that the other person:
(e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or
(g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.
113 While neither the AHRC Act nor the RDA refer to “victimisation” in terms, they proscribe conduct which is recognisable as such: see also s 26, AHRC Act.
114 As the respondents submit, it appears from the AHRC’s reasons for terminating the complaint that the claim of alleged victimisation arises from the contents of responses to inquiries from the AHRC provided by TAFE NSW dated 12 September 2016 and 17 January 2017 as part of the conciliation process being undertaken by the AHRC under the AHRC Act. The claim, is with respect, without any merit. The short point is that submissions to the AHRC in response to a complaint and to the effect that a complaint should be terminated do not fall within any of the categories of conduct proscribed by s 27(2). TAFE NSW and Mr Long were entitled to respond to the complaints made against them and the fact that Mr Payne disagreed with the contents of those responses to the Commission does not establish victimisation of Mr Payne. As such, the claim should be dismissed. Nor was there any evidence to support the bare allegations of lying made against Mr Long in Mr Payne’s outline of submissions and, in any event, Mr Long was not cross-examined upon them. As such, the allegations were scandalous and should not have been made.
115 For the reasons set out above, Mr Payne’s application must be dismissed with costs.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
