Federal Court of Australia

Cumaiyi v Northern Territory of Australia [2020] FCA 1299

ORDERS

THE COURT ORDERS THAT:

1.    The following pleas in the Amended Statement of Claim are struck out:

(a)    subparagraphs (b) and (f)-(l) of the second list in [28];

(b)    paragraphs [52]-[67]; and

(c)    the pleas of the “Relevant Period” in [1].

2.    The Applicants have leave to re-plead their claims presently contained in [52]-[61] and their claim of the “Relevant Period”, but only in a manner which is in accordance with these reasons and with s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth).

3.    The amended statement of claim is to be entitled “Third Statement of Claim”.

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

REASONS FOR JUDGMENT

WHITE J

1    Wadeye is a community of about 2,250-2,280 people in a remote location approximately 400 km southwest from Darwin. About 90% of its population is indigenous.

2    The most prevalent indigenous language used in Wadeye is Murrinh Patha as it is spoken by around 65% of the population. For some, it is their only language. English is the only language spoken at home by about 7.7% of Wadeye’s population.

3    In representative proceedings pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) commenced on 28 October 2019, the applicants claim, amongst other things, that by reason of institutional discrimination in contravention of s 9(1) and (1A) of the Racial Discrimination Act 1975 (Cth) (the RD Act), the first respondent (the Territory) has failed to provide sufficient or adequate interpreting services in connection with specified activities in Wadeye and has, in breach of s 9(1) of the RD Act, failed to provide adequate health services in Wadeye. The applicants allege that the second respondent, Top End Health Service (TEHS) has, in contravention of s 9(1) of the RD Act, failed to obtain or provide adequate interpreting services in relation to the health services it provides at its health clinic in Wadeye.

4    The applicants also allege that each of the Territory and TEHS contravened s 9(1) of the RD Act in relation to the provision of treatment to the first applicant at TEHS’s clinic on 9 and 10 November 2016.

5    On 9 May 2019, the applicants lodged a representative complaint (the Complaint) with the Australian Human Rights Commission (AHRC), pursuant to s 46P of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). The applicants alleged racial discrimination in contravention of the RD Act, the nature and content of which will be described in more detail shortly. Acting under s 46PH(1B) of the AHRC Act, the AHRC terminated the Complaint on 29 August 2019 because the President’s delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation. The applicants then commenced the present proceedings.

6    This judgment concerns an application by the respondents pursuant to r 16.21 of the Federal Court Rules (2011) (Cth) (the FCR) to have certain parts of the proceedings struck out on the basis that they do not disclose a reasonable cause of action. They contend that the effect of s 46PO(3) of the AHRC Act is that the applicants’ claims in this Court should be confined to the matters which were the subject of the Complaint, that the applicants’ Amended Statement of Claim (ASC) contains pleas which go beyond those matters, and that they are accordingly beyond the Court’s jurisdiction.

7    For the reasons which follow, I uphold the respondents’ application with respect to some of the subject matter of the proceedings and with respect to the period in which the conduct which the applicants impugn is said to have occurred.

The statutory scheme

8    Section 46P of the AHRC Act allows a written complaint to be lodged with the AHRC alleging that acts, omissions or practices constituted “unlawful discrimination”. By s 46P(1B), the complaint “must set out, as fully as practicable, the details of the alleged acts, omissions or practices”, but a complaint may, with the leave of the President of the AHRC be amended (s 46PA).

9    Division 1 of Pt IIB of the AHRC Act provides for the manner in which the President of the AHRC is to deal with a complaint. The President may decide to inquire into the complaint, to inquire into the complaint and attempt to conciliate it, or to terminate the complaint without inquiry (s 46PF). The President may require the provision of information to the AHRC in relation to a complaint (s 46PI) and may hold private conferences to conciliate a complaint (ss 46PJ-46PK). By s 46PH, the President may terminate a complaint on any one or more of eight grounds. Since 12 April 2017, these grounds have included the President’s satisfaction that the complaint was lodged more than six months after the alleged acts, omissions or practices took place (subs (1)(b)). However, it was common ground that, in the present case, that period was 12 months. By s 46PH(1B)(b), the President must terminate a complaint if the President is satisfied (relevantly) that there is no reasonable prospect of the matter being settled by conciliation. Section 46PH(2) requires the President, when terminating a complaint, to notify the complainant in writing of the termination and of the reasons for the termination.

10    When a complaint has been terminated by the President in the exercise of particular powers, an affected person in relation to the complaint may apply to this Court or to the Federal Circuit Court (the FCC) alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1)). The application must be made within 60 days after the date of the notice provided under s 46PH(2) or within such further time as the Court may allow. Section 46PO(3A) has the effect that an application may be made only in three circumstances: if the Court grants leave; if the complaint was terminated under s 46PH(1)(h) (the President is satisfied that the complaint involves a matter of public importance which should be considered by this Court or by the FCC); or the complaint was terminated under s 46PH(1B)(b) (no prospect of resolution by conciliation).

11    Section 46PO(3), on which the respondents rely presently, limits the matters which can be the subject of an application to the Court by requiring (using a general expression) that they have a close relationship with the conduct which was the subject of the complaint to the AHRC. It provides:

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.

12    The term “unlawful discrimination” appearing in s 46PO(1) and (3) is defined in s 3(1) of the AHRC Act to mean “any acts, omissions or practices that are unlawful” under the various Discrimination Acts including, relevantly for present purposes, the RD Act. The word “act” is also defined in s 3(1). When s 46PO(3) is read together with the definition of “unlawful discrimination”, it means that the unlawful acts, omissions or practices alleged in the Court proceedings under the relevant racial discrimination legislation must be the same (or the same in substance) as the unlawful acts, omissions or practices, as the case may be, as were alleged in the terminated complaint or arise out of the same (or substantially the same) acts, omissions or practices as were the subject of the terminated complaint.

13    Section 46PR provides that, on an application under s 46PO, this Court and the FCC are not bound by technicalities or legal forms.

Matters of approach

14    Section 46PO(3) has now been considered in several authorities and some matters concerning the approach to its application can be taken to be settled:

(a)    section 46PO does not provide for a general statutory cause of action available to anyone who may at any time have been affected by the unlawful discrimination. It is available only to those who made the complaint or on whose behalf the complaint was made (see the definition of “affected person” in s 3(1)) and it lies only in respect of the subject matter of the complaint to the AHRC: Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [18];

(b)    the legislative purpose is to define and filter the cause of action created by s 46PO so that it will correspond, within the limits contained in subs (1) and (3), with the complaint terminated by the President of the AHRC: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]: Grigor-Scott at [19];

(c)    subsection (3) indicates that the unlawful discrimination alleged in the application to the Court must either be the same as, or the same in substance as, the unlawful discrimination which was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices which were the subject of the terminated complaint: King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; (2012) 286 ALR 149 at [25]; Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [39]. It means that a terminated complaint cannot be used to launch an application to this Court or the FCC concerning “conduct substantially wider – or beginning substantially earlier – than that initially complained of”, with the effect that the procedures provided for in the AHRC Act are effectively bypassed: Travers v New South Wales [2000] FCA 1565 at [8]. I understand the reference of Lehane J in Travers to the conduct about which the complainant “initially complained” to be a reference to the conduct which was the subject of the complaint to the AHRC, including any amendments of that complaint or other elaborations of it to which occurred while the complaint was current in the AHRC, and not a reference to the complaint as initially lodged with the AHRC;

(d)    by limiting the subject matter of applications to this Court pursuant to s 46PO(1), subs (3) necessarily limits the exercise of power by this Court: Charles v Fuji Xerox at [35]. In this way s 46PO(3) indicates that the jurisdiction of this Court and of the FCC is available only if the allegations in an application do not travel in substance beyond the allegations made in the complaint to the AHRC: Stepien v Department of Human Services [2018] FCA 1062 at [13];

(e)    the subsection does not prevent an amendment which does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices: King v Jetstar Airways at [28]; and

(f)    the gateway or filter requirement in s 46PO(3) should be viewed as a practical one, and not as duly technical. It should not be approached in the same manner as are pleadings: Hastwell v Kott Gunning [2017] FCA 1557 at [26].

15    The inter-relationship between the two limbs in s 46PO(3) was considered in Charles v Fuji Xerox in which Katz J said:

[37]    It appears to me that s 46PO(3) of the HREOCA is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the HREOCA; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.

[38]    Paragraph (a) of s 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.

[39]    Paragraph (b) of s 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.

[40]    … It appears to me that the first limb of s 46PO(3) of the HREOCA was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work (see s 17 of the DDA).

[41]    On the construction which I give to subs 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission …

(Emphasis added)

16    Katz J’s understanding of s 46PO(3)(b) is supported by the extract from the Explanatory Memorandum for the Human Rights Legislation Amendment Bill 1998 (to which his Honour referred in [40]). The Explanatory Memorandum stated at [198(b)]:

… This second limb is intended to cover situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances. For example, an Asian woman may make a complaint to HREOC alleging that her dismissal from employment amounted to discrimination on the ground of her sex. On the basis of things said or done during the inquiry and conciliation process, the woman may form the view that her dismissal also amounted to discrimination on the ground of her race. If the complaint cannot be conciliated and is terminated, and the woman makes an application to the Federal Court in respect of the terminated complaint, this paragraph may permit her to allege racial discrimination in that application.

(Emphasis added)

17    The explanation by Katz J of the effect of subparas (a) and (b) in s 46PO(3) has been adopted in several subsequent decisions of the Court: Dye at [47]; Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217, (2013) 211 FCR 1 at [79]-[80]; Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 at [17]; Huang v University of New South Wales [2014] FCA 1337 at [43]. It was not suggested that it should not be applied in the present case.

18    It means on my understanding that, to come within subpara (3)(a), the pleaded claim must, at least in substance, be in respect of the same conduct which was the subject of complaint to the AHRC. The required identity must exist in the conduct alleged. An identity between the kind of conduct alleged and the kind of conduct about which the complaint was made is insufficient if the acts, omissions, or practices occurred at materially different times. This was the position stated by Katzmann J in Dye v Commonwealth Securities Ltd [2010] FCA 720 at first instance, at [105]:

To fall within s 46PO(3) it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different – not the same or substantially the same – conduct …

19    That view of s 46PO(3) was not disturbed on the appeal in Dye.

20    Were the position otherwise, proceedings in this Court or in the FCC could require consideration of conduct which has not been the subject of any assessment in the AHRC.

21    A claim will be within subpara (3)(b) if the character of the discrimination alleged is different but it arises from the same, or substantially the same, acts, omissions or practices about which complaint was made to the AHRC.

22    In the case of representative complaints like the present, account may have to be taken of the fact that the articulation of the complaint may be more generalised than in the case of a complaint concerning only one or two individuals: Dye at [43]. But nevertheless, s 46PO(3) applies in the case of both individual and representative complaints.

23    In respect of the provisions concerning complaints to the Australian Human Rights and Equal Opportunity Commission, it was said that a complaint under s 50 of the Sex Discrimination Act 1984 (Cth) was not to be equated to a criminal complaint or information nor to a pleading in a civil legal proceedings: Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607, (1998) 90 FCR 179 at 188; and see also Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. However, s 46PO(3) must be read in its context. Since the insertion of s 46P(1B) into the AHRC Act in 2017 by the Human Rights Legislation Amendment Act 2017 (Cth), that context includes the requirement that a complaint to the AHRC set out, as fully as practicable, the details of the alleged acts, omissions or practices. Likewise, since the insertion of s 46PA into the AHRC Act by the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth), the context also includes the prospect of amendment of the complaint lodged with the AHRC. Accordingly, some care may be required now in applying the authorities decided before the insertion of ss 46PA and 46P(1B).

24    It is the content of the complaint at the time of its termination rather than at the time of its commencement which is the critical matter: Dye at [47].

The Complaint to the AHRC

25    The applicants in the present proceedings are the same eight persons who lodged the representative Complaint with the AHRC on 9 May 2019.

26    Section 2 in the Complaint indicated that it was made against four respondents: the Territory; the Commissioner of Police of the Northern Territory Police Force; TEHS; and the Commonwealth of Australia. The AHRC did not accept the Complaint against the Commonwealth as it considered that it contained insufficient details of the acts or practices alleged against it. Only the Territory and TEHS are respondents to the present action.

27    It is fair to say that the primary focus of the Complaint concerned aspects of the treatment of the first applicant, Mr Patrick Cumaiyi, by the Northern Territory Police and at the TEHS clinic on 9 and 10 November 2016. So much was made apparent in a section of the Complaint headed “Introduction”, the first two paragraphs of which stated:

[1.1]    This complaint of unlawful discrimination is lodged pursuant to section 46P(2)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the ‘AHRC Act’), by persons aggrieved by the unlawful racial discrimination that occurred in relation to the events leading up to, surrounding and arising from the provision of policing and healthcare services to Mr Cumaiyi, as particularised below. The complaint is also a representative complaint lodged on behalf of a class of persons pursuant to s 46PB(1) of the AHRC Act. The Class of persons is defined as the Indigenous residents of Wadeye, ordinarily resident in Wadeye on 9 November 2016, who have been impacted by the discriminatory conduct of Respondents hereinafter described (“the other Group Members”), represented by Mr Cumaiyi and his Family (together described as “the Complainants”).

[1.2]    Patrick Cumaiyi suffered serious injuries when he was assaulted by officers of the Police Force of the Northern Territory at the Wadeye airstrip on 9 November 2016. The Family are the relatives of Mr Cumaiyi who witnessed and have been detrimentally psychologically and emotionally affected by what they saw, heard and experienced during and/or in the aftermath of this incident. The other Group Members on behalf of whom a complaint is brought have also been impacted by the discriminatory conduct of the Respondents. It is alleged that the episode in which Mr Cumaiyi suffered serious injury on 9 and 10 November 2016 occurred in the course of systemic discrimination which they have suffered in the provision of policing and health services. They are aggrieved by that particular episode and further allege that they have, in common, suffered from discriminatory conduct based on race which has interfered with their equal enjoyment of fundamental human rights, as particularised below.

(Bold emphasis in the original and italicised emphasis added)

28    The Introduction then concluded with the following subparagraph:

[1.16]    The Complainants contend Mr Cumaiyi’s treatment (sic) that this is indicative of the treatment of the Indigenous inhabitants of Wadeye by the Respondents more generally and that the failure of the Respondents to ensure that their human rights:

(a)    Not to be unjustly assaulted and battered by Police, and

(b)    To have their protests at Police abuse treated respectfully and without threat or intimidation, and

(c)    To receive proper and informed medical attention and treatment,

was a result of unlawful racial discrimination and breached their fundamental human rights.

29    The Complaint was lodged with the AHRC by Levitt Robinson, the same solicitors who are acting for the applicants in the present proceedings. It comprised some 28 pages with its contents grouped under the following headings:

30    Reference has already been made to Sections 1 and 2. A brief summary of the remaining sections follows:

Section 3: Circumstances surrounding the assault on Mr Cumaiyi

31    Section 3 of the Complaint contained detailed particulars of the events said to have occurred on 9 and 10 November 2016, in particular the assault of Mr Cumaiyi by the police, the injuries he was said to have suffered, and the treatment he received.

Section 4: Institutional Discrimination against the Complainants and other Group Members

32    Section 4 made complaints about the provision of a number of services in Wadeye. The following is, for the most part, a summary of the complaints.

Funding

33    The Complaint alleged that “under-funding” is a chronic issue affecting Wadeye; that the Territory has repeatedly “re-allocated” funding provided by the Commonwealth for Indigenous issues; and that it has justified this with “questionable claims”, at [4.1].

Medical Services

34    The Complaint stated that “Wadeye has no full-time in situ doctor despite having a population of over 2,200 people which increases dramatically during the wet season, when people from surrounding areas come to stay in the town”. It also alleged that there are no “regularly trained” Murrinh Patha, Larrakia and Kriol interpreters in attendance at medical consultations; that it is commonplace for medical histories not to be taken accurately; that second hand accounts are accepted; and that patients are commonly treated disrespectfully by nursing staff, at [4.2]-[4.3].

Policing Services

35    The Complaint noted the police services provided in Wadeye in a way which suggested that the complainants did not regard them as inadequate. Instead, the complainants referred again to the “threatening and intimidatory” behaviour of the police officers on 9 and 10 November 2016 in relation to Mr Patrick Cumaiyi, which was described as involving the use of “excessive force”. The Complaint also stated that the “lack of availability of appropriate social workers meant that intellectually disabled and disadvantaged Group Members are interviewed by police officers without a support person present, as is their right”. The same claim was made with respect to the “illiterate and emotionally and psychologically challenged Group Members and those lacking formal education”, at [4.4]-[4.6].

Legal Services

36    Under this heading, the complainants made three complaints. The first concerned the conduct of Court proceedings inside the police station; the second stated that “there are insufficient translation and interpretation services available”; and the third was the claim that Wadeye residents were invariably denied access to trial by a jury of their peers by reason of the only jury districts in the Northern Territory being located in Darwin and in Alice Springs, at [4.7]-[4.9].

Educational Services

37    The Complaint alleged that Wadeye’s educational services “have been chronically under-funded” and said that this was, in part, “responsible for the difficulties which the Complainants and other Group Members have faced in interacting with health authorities, police, instructing lawyers and understanding legal processes”, at [4.10], [4.11].

Translation Services

38    The Complaint stated that “there are inadequate translation and interpreting services available for the Complainants and other Group Members in multiple significant contexts, including health/medical, policing and legal contexts” and continued “[i]t is not acceptable that Australian citizens are forced to see medical staff and deal with police officers and participate in court proceedings without being afforded a genuine opportunity to understand and engage with those proceedings”, at [4.12].

Section 5: Discriminatory Conduct

39    Section 5 of the Complaint commenced with an allegation of unlawful racial discriminatory conduct in the treatment of Mr Cumaiyi on 9 November 2016. It then alleged in [5.2] that “the 9 and 10 November 2016 episode is indicative of the unlawfully discriminatory treatment of the Complainants and other Group Members by the Respondents and of the broader failure of the Respondents adequately to ensure that they have been treated in a manner which respects [their] fundamental freedoms and human rights, as the Respondents would have done in the case of any comparably sized remote population of non-Indigenous people”.

40    Paragraphs [5.3]-[5.11] then particularised the breach of s 9(1) of the RD Act alleged with respect to the treatment of Mr Cumaiyi on 9 and 10 November 2016 by reference to relevant international conventions and asserted the vicarious liability of the Territory, the Commissioner and TEHS respectively with respect to aspects of that conduct.

41    Paragraphs [5.12] and [5.13] made a complaint of a more general nature:

[5.12]    The Respondents have failed to provide adequate services, as particularised below, referable to a distinction based on race because no comparably-sized remote community of non-Indigenous residents would be allowed to suffer from deprivation of such fundamental government services, namely:

   (a)    Inadequate allocation of GP services;

(b)    Inadequate translation services to assist in interacting with medical, health, policing, legal and court services. No onsite translators for medical staff such that staff cannot effectively communicate with Indigenous inhabitants because English is only spoken by a very small number of the younger members of the Community;

(c)    No access to a trial by a jury of the peers of the Complainants or the other Group Members.

[5.13]    The Respondents have failed to take adequate steps to redress or prevent the unlawful discrimination which has had the effect of impairing the Complainants’ and other Group Members’ enjoyment of their right to access health/medical services, policing, translation/interpreter and legal services because of a distinction based on race because no comparably-sized remote community, if comprised of non-Indigenous residents, would be neglected to such an extent.

42    There then followed some particulars of the way in which the conduct constituted a breach of the RD Act, with some particulars directed to the conduct involving Mr Cumaiyi and some to the Group more generally.

43    Paragraph [5.18] stated:

The failure of the First and Fourth Respondents to provide adequate legal services including translation services at Wadeye constitutes conduct which have had the effect of nullifying or impairing the enjoyment of this right by the Complainants and other Group Members, who have been unable to properly access translation services despite the fact that they are already disadvantaged, by reason of lack of formal education and literacy and alienation, in terms of their capacity to understand court proceedings and despite the fact that the Respondents have failed to take adequate steps to rectify that disadvantage.

44    The Complaint then alleged a breach of s 13 of the RD Act.

Section 6: Relief sought by the Complainants

45    This Section identified the relief sought by the complainants and included claims by way of compensation and aggravated and exemplary damages.

Section 7: Reasons for delay in making this Complaint

46    In this Section, the Complaint provided an explanation for the time of its making, together with a submission that the President should not exercise her discretion to terminate it by reason of its subject matter having occurred more than 12 months before 9 May 2019.

The applicants’ pleaded claims

47    The pleaded claims of the applicants with respect to the incidents involving Mr Patrick Cumaiyi on 9 and 10 November 2016 are more limited than those detailed in the Complaint. In the ASC, the applicants make no allegation of an assault by the police on Mr Patrick Cumaiyi nor of any subsequent conduct (including Court proceedings) in respect of such an assault. Their pleading concerns only Mr Patrick Cumaiyi’s attendance at the clinic at about 6 pm on 9 November 2016, the injuries he suffered at about 6 am on 10 November 2016 and his treatment for those injuries at the clinic on 10 November 2016.

48    It was not suggested that this difference in the acts and omissions alleged meant, by itself, that the pleaded claims did not satisfy s 46PO(3).

49    The balance of the allegations in the ASC concern two principal subject matters: the adequacy of the interpreting services ([21]-[51]) and health services provided in Wadeye ([52]-[67]). The temporal element of each of the allegations is pleaded as the “Relevant Time” and the “Relevant Period”. Paragraph [1] of the ASC defines the “Relevant Time” to be 9 and 10 November 2016 and the “Relevant Period” to be the period between 1 July 2014 and 29 August 2019. The latter date appears to have been selected because that was the date on which the AHRC terminated the Complaint.

The respondents’ application

50    In submitting that the applicants’ pleaded claims went beyond the scope permitted by s 46PO(3), the respondents focussed on two aspects. The first was the period of time to which the claims related. The second concerned their subject matter. It is convenient to address these separately. However, I will consider the submissions concerning the subject matter first, as doing so assists in understanding the submissions concerning the time period.

Subject matter

51    The respondents contend that four of the allegations of unlawful discrimination in the ASC are outside the scope permitted by s 46PO(3), being the allegation:

(a)    relating to interpreting services, to the extent to which it relates to contexts other than health services, interactions with police, and criminal court proceedings;

(b)    that TEHS adopted a practice of relying on bilingual staff or others to interpret in relation to health services and made requests for Murrinh Patha interpreters from the Aboriginal Interpreting Service (AIS) in only a small minority of cases;

(c)    concerning the provision of health services in Wadeye to the extent that it goes beyond a complaint about a lack of general practitioners; and

(d)    that residents of Wadeye are required to travel for health services.

52    It is convenient to address the first and second of these matters together.

Interpreting services

53    The pleas in the ASC concerning the alleged inadequacy of interpreting services comprise some 30 paragraphs. Twenty two of those concern claims made against the Territory and eight concern claims made against TEHS.

The pleading

54    In [24]-[26], the applicants plead that AIS was the only organisation in the Northern Territory providing interpreting services for indigenous languages; that AIS was jointly funded by the Commonwealth and by the Territory; and that the Commonwealth funding to AIS was directed to the provision of interpreting services in connection with legal and policing services and for the activities of a number of non-governmental organisations. The ASC refers to services of these kinds as “Commonwealth-funded Services”, at [26]. With particular reference to Wadeye, [27] of the ASC pleads that most of the AIS interpreting services were provided in relation to legal services and legal proceedings, interviews and investigations conducted by police, and interactions with Centrelink.

55    Although the ASC does not contain an express plea to this effect, I infer that the AIS is an agency of the Northern Territory Government.

56    In [28] of the ASC, the applicants allege that, on one or more occasions during the Relevant Period, each of them and the Group Members had required the provision of the “Commonwealth-funded Services and/or services [which] are not Commonwealth-funded Services”, with both forms of services being identified as the “Services”. The Commonwealth-funded services were particularised as including the provision of assistance to the applicants and Group Members in interactions with the police, understanding police-issued orders such as bail conditions and police issued domestic violence orders, understanding criminal proceedings and the orders of criminal courts, engaging with Community Corrections and, in respect of children accused of criminal offending and their legal guardians, understanding the significance and the requirements of Youth Diversion under Pt 3 of the Youth Justice Act 2005 (NT).

57    The “non Commonwealth-funded Services” are particularised in [28] as including assistance in a diverse range of interactions with Government and with the legal system. The list is as follows:

(a)    accessing health services;

(b)    understanding why a Territory Families officer is visiting them and what they need to do to respond;

(c)    understanding legal proceedings relating to child welfare and applications to remove children from their custody;

(d)    accessing and understanding information at court registries and tribunals regarding rights and remedies in a civil dispute;

(e)    participating in civil law proceedings in any capacity;

(f)    registering a birth, death or marriage;

(g)    lodging a complaint with the Northern Territory Ombudsman or the Northern Territory Independent Commission Against Corruption;

(h)    understanding their rights and obligations as a public housing tenant;

(i)    finding out about, and applying for, benefits or grants;

(j)    accessing information regarding activities government agencies are undertaking in communities and understanding why an agency has chosen to take or not to take action in a particular case;

(k)    undertaking the steps required to obtain a driver’s licence and adhering to the conditions of the licence;

(l)    understanding the requirements of starting and maintaining a business.

58    In [29] of the ASC, the applicants allege that the degree to which they and Group Members were able to receive effectively the “Services” was related to whether or not they were able to access Murrinh Patha interpreters. In [30] of the ASC, the applicants plead that from “about July 2014” the Commonwealth had significantly reduced the funding to the AIS.

59    The applicants’ claim against the Territory is pleaded in [31]-[43] of the ASC. In [31], they plead that the decisions made by the Territory during the Relevant Period with respect to funding for Murrinh Patha interpreting services had not resulted in funding to AIS sufficient to offset the reduction in Commonwealth funding. In [32], the applicants plead that the number of staff, casual interpreters and trainers employed or engaged by the AIS reduced during the Relevant Period, as did the quality of training which it provided to the Murrinh Patha interpreters, and that the access by the applicants and Group Members to Murrinh Patha interpreters in connection with “the Services” as and when required by them was “nullified or impaired”.

60    In [33], the applicants allege the conduct later pleaded as constituting the unlawful discrimination. This is that, during the Relevant Period, the Territory failed to provide sufficient or adequate interpreting services as and when required for the provision of “the Services” to the applicants and Group Members (which they characterise as “Failures in the Provision of Interpreting Services”).

61    In [35] and [36], the applicants allege that the “Failures in the Provision of Interpreting Services” were acts of discrimination within the meaning of s 9(1) of the RD Act. Paragraphs [37]-[40] contain a corresponding allegation of a contravention of s 9(1A) of the RD Act.

62    The respondents contend that the pleaded “Failures in the Provision of Interpreting Services” are much broader than those made in the Complaint concerning interpreting services which, they submit, had been confined to interpreting services in relation to access to health services, interactions with police and criminal court proceedings.

63    The applicants’ allegations against TEHS in relation to interpreting services are contained in [44]-[51] of the ASC. They plead first that TEHS did not employ any Murrinh Patha interpreter at the Wadeye health clinic, at [44]. Next they plead that, prior to and during the Relevant Period, despite requests having been made to AIS for Murrinh Patha interpreters to assist in the provision of services to patients at the clinic, there had been many occasions when interpreters were not provided, at [45]. The applicants particularise this claim by setting out the number of requests to AIS for Murrinh Patha interpreters in each of the years from 2010 to 2019 inclusive, the number of those requests which were made by TEHS, and the number which were cancelled, either because no interpreter was available or because no interpreter presented to the clinic. The applicants then plead in [46]:

The Second Respondent’s practice was:

(a)    to rely on bilingual staff or other persons to interpret as required in regard to the provision of health services to Applicants and Group Members; and

(b)    not regularly to make requests for Murrinh Patha interpreters from AIS in regard to the provision of health services to Applicants and Group Members in only a small minority of cases

(Practice).

64    The applicants allege in [47]-[51] that the Practice constituted unlawful discrimination by TEHS.

65    Again, the respondents contend that this allegation goes beyond the matters in the Complaint concerning the provision of interpreting services at the TEHS. In particular they submit that the Complaint had not identified the defined practice, let alone make a complaint about it.

The terms of the Complaint concerning interpreter services

66    In Section 4 of the Complaint (which raised the allegations of institutional discrimination), the applicants alleged:

Medical Services

…

[4.3]    There are not regularly trained Murrinpatha, Larrakia and Kriol interpreters in attendance at medical consultations. Medical histories are frequently not taken accurately from Indigenous patients, second hand accounts are accepted in preference by triage staff from white interlocutors, such as Police, and patients are commonly treated disrespectfully by nursing staff.

Policing Services

[4.4]    Despite the lack of funding for medical personnel and interpreters, funding is provided for the employment of at least 14 police officers and for a $28 million police station.

…

Legal Services

…

[4.8]    Further, there are insufficient translation and interpretation services available to allow the Indigenous inhabitants of Wadeye to fully understand and thereby, engage with legal processes …

…

Translation Services

[4.12]    There are inadequate translation and interpreting services available for the Complainants and other Group Members in multiple significant contexts, including health/medical, policing and legal contexts. It is not acceptable that Australian citizens are forced to see medical staff and deal with police officers and participate in court proceedings without being afforded a genuine opportunity to understand and engage with those proceedings.

(Footnotes omitted and emphasis added)

67    In Section 5 under the heading Discriminatory Conduct, the Complaint stated:

[5.12]    The Respondents have failed to provide adequate services, as particularised below, referable to a distinction based on race because no comparably-sized remote community of non-Indigenous residents would be allowed to suffer from deprivation of such fundamental government services, namely:

   (a)    …

(b)    Inadequate translation services to assist in interacting with medical, health, policing, legal and court services. No onsite translators for medical staff such that staff cannot effectively communicate with Indigenous inhabitants because English is only spoken by a very small number of the younger members of the Community;

(c)    …

[5.13]    The Respondents have failed to take adequate steps to redress or prevent the lawful discrimination which has had the effect of impairing the Complainants’ and other Group Members enjoyment of their right to access health/medical services, policing, translation/interpreter and legal services because of a distinction based on race …

…

[5.18]    The failure of the First and Fourth Respondents to provide adequate legal services including translation services at Wadeye constitutes conduct which have had the effect of nullifying or impairing the enjoyment of [the right to be equal before courts and tribunals] by the Complainants and other Group Members, who have been unable to properly access translation services despite the fact that they are already disadvantaged, by reason of lack of formal education and literacy and alienation, in terms of their capacity to understand court proceedings …

(Emphasis added)

68    The applicants did not contend that any other extracts from the Complaint were pertinent presently in respect of the provision of interpreter services.

The respondents’ submission

69    The extracted passages indicate, the respondents contend, that the subject of the Complaint in respect of interpreter services was confined to the provision of those services in connection with health services, interactions with police and criminal court proceedings. On this basis, they contend that the provision of interpretation services in relation to the following “Commonwealth-funded services” had not been the subject of the Complaint:

(c)    accessing their rights when they are a victim of crime, including as a victim of domestic violence;

…

(g)    engaging with Community Corrections as part of a sentence or parole requirements;

(h)    in respect of children accused of criminal offending and their legal guardians, understanding the significance and requirements of Youth Diversion under Part 3 of the Youth Justice Act 2005 (NT).

70    Next, the respondents submit that only one of the pleaded list of circumstances in which interpreter services had been required in relation to the “non Commonwealth-funded Services” had been the subject of the Complaint, this being subpara (a) (accessing health services).

71    Hence, the respondents submit, the applicants’ pleaded case travels beyond the Complaint.

The applicants’ submission

72    The applicants resisted this challenge of the respondents, submitting that:

(a)    the respondents’ submission was based on a narrow and technical reading of the Complaint, treating it as though it was a pleading;

(b)    the submission overlooked the flexibility inherent in s 46PO(3) and the nature of the Complaint as being representative;

(c)    the Complaint had raised allegations of inadequate interpreting services in Wadeye as a result of longstanding under-funding. In that circumstance, particular “contexts” in which the under-funding had impaired the rights of the applicants and Group Members had been “highlighted”, but could not fairly be construed as exhaustive;

(d)    the subsets of circumstances in which the provision of interpreting services were inadequate stated in [4.12] of the Complaint were examples only and nothing in the above extracts expressly limited the interpreting services to these categories;

(e)    to the extent that the allegations concerned “contexts” not specifically mentioned in the Complaint, they can readily be seen as the same in substance as the lawful discrimination which was expressly the subject of the Complaint; and

(f)    the reference to “legal processes” in [4.8], “legal context” in [4.12] and “legal and court services” in [5.12], were not confined to “criminal court proceedings” but, understood reasonably, encompassed the provision of legal services in a wide variety of contexts.

Consideration

73    It is to be remembered that, for the purposes of s 46PO(3), the unlawful discrimination is constituted by an act, omission or practice of a defined kind.

74    In my view, when read fairly, the matter to which the Complaint referred was the provision of interpreter services in connection with the provision of health services, interactions with police and engagement in court proceedings. It was alleged that the provision of interpreter services for those purposes was inadequate. That was the act, omission or practice about which the complaint was made. The Complaint did not allege the failure generally by the Territory to provide adequate interpreter services in Wadeye, which is the subject of the ASC.

75    However, I see no reason to construe narrowly the concepts of “interactions with police” and “court proceedings” to which the Complaint referred. It may well be that the principal focus of the Complaint was on criminal proceedings, but the references to “legal processes” and “court proceedings” are sufficiently broad so as to encompass all forms of court proceedings.

76    I therefore regard the Complaint as encompassing the matters referred to in (c), (g) and (h) of the “Commonwealth-funded Services” set out earlier. Those matters do have a sufficiently close relationship to the subject matter of interactions with police and court proceedings. For the same reasons, I also regard the subject matter of (c), (d) and (e) of the “non Commonwealth-funded Services” as encompassed by the Complaint.

77    However, I do not consider that, with the exception of subpara (a) (accessing health services), the remaining activities listed in the Complaint concerning “non Commonwealth-funded Services” can, on a fair reading, reasonably be regarded as the subject of the Complaint. Looked at as a class, the matters in these subparagraphs concern interactions with government more generally. They cannot reasonably be regarded as encompassed by the expressions “legal processes”, “legal contexts” and “legal and court services”, as the applicants submitted. Those expressions take their colour from the Complaint read as a whole including, in particular, the content of the Complaint under the heading “Legal Services”. Further, the reference by the applicants in the Complaint in [4.12] to “multiple significant contexts including health/medical, policing and legal contexts” cannot reasonably be regarded as a complaint about the inadequate provision of interpreter services in whatever context the applicants later chose to nominate.

78    Does s 46PO(3) allow this extended range of activities to be the subject of the present proceedings? Approaching that question in the manner set out earlier in these reasons, I consider that the answer to it must be in the negative. The act, omission or practice constituting the denial of, or failure to provide, interpreting services in connection with the activity of, say, registering a birth, death or marriage (subpara (f)) is self-evidently not the same, or the same in substance, as the act or omission constituting the unlawful discrimination in relation to the accessing of health services or participating in the justice system. The occasions in which the impugned conduct occurred in each are different in time, place and circumstance. Accordingly, these claims do not fall within s 46PO(3)(a).

79    Nor can it be said that the acts, omissions or practices constituting the alleged discrimination in relation to the “non Commonwealth-funded Services” arose out of the same, or substantially the same, acts, omissions or practices which were the subject of the terminated Complaint, so as to come within s 46PO(3)(b). Again, using the example of registering a birth, death or marriage, it cannot reasonably be said that such an act or omission arises out of the same act, omission or practice concerning the participation of the applicants or Group Members in the justice system. It is not a matter of characterising differently the same conduct, or substantially the same conduct, which was the subject of the Complaint.

80    In relation to the claim against TEHS, I consider that the plea in [46(a)] of the ASC is encompassed, on a fair understanding, by [4.3], [4.12], [5.12(b)] and [5.13] of the Complaint. It is true that the Complaint did not refer expressly to the use of bilingual staff or other persons to interpret but that does seem implicit in it. I also consider that the plea in [46(b)] can reasonably be regarded as encompassed by the Complaint if only because it seems to be an integer of the unlawful discrimination pleaded in [46(a)].

81    In summary, in relation to the first contention of the respondents concerning the subject matter, I uphold it only with respect to the pleas concerning “non Commonwealth-funded Services” in subparas (b) and (f)-(l) inclusive of [28] in the ASC.

The provision of health services in Wadeye

82    The respondents contend that the Complaint concerning the provision of health services in Wadeye was confined to a complaint concerning the number of general practitioners provided. They contend that the ASC goes beyond that subject matter by pleading that Wadeye has inferior health services more generally.

83    Putting to one side that part of the content of the Complaint which concerns the treatment of Mr Cumaiyi on 9 and 10 November 2016, and the complaint regarding the provision of interpreters at medical consultations, the relevant portions of the Complaint are as follows:

Medical Services

[4.2]    Wadeye has no full-time in situ doctor despite having a population of over 2,200 people which increases dramatically during the wet season, when people from surrounding areas come to stay in the town. Data compiled by the Australian Bureau of Statistics in 2013 indicates that the per capita ratio of GPs to population in remote areas of Australia was 113 per 100,000. This suggests that Wadeye, in 2016 with 2,280 people, would ordinarily have 2.58 GPs, but although 2 GPs have been allocated to the Clinic, they do not work contemporaneously and continuously or on a full-time basis.

…

[5.12]    The Respondents have failed to provide adequate services, as particularised below, referrable to a distinction based on race because no comparably-sized remote community of non-Indigenous residents would be allowed to suffer from deprivation of such fundamental government services, namely:

(a)    Inadequate allocation of GP services;

…

[5.21]    As set out above, the other Group Members have also not received proper and adequate policing and medical services, as they contend that they would have received had they not been Indigenous.

84    As noted earlier, in [5.13], the applicants allege that the respondents had failed to take adequate steps to redress or prevent the unlawful discrimination which has had the effect of impairing their right, and that of Group Members “to access health/medical services …”.

85    In [60] and [61] of the ASC, the applicants plead that the Territory “underserviced” them and Group Members in Wadeye “in regard to health services” compared with the provision of “health services” to residents in the towns of Nhulunbuy and Tennant Creek. They plead in [53] that Wadeye does not have a hospital, or any private medical clinics and has only the government funded clinic which does not have “a permanent on-site doctor” and does not have any “effective after-hours ambulance services”. In [54] and [56], they plead that the health services available in Nhulunbuy and in Tennant Creek (which are said to have comparable populations) include a public hospital providing a range of medical services as well as medical clinics.

86    The applicants contend that their pleading is within the bounds of the Complaint because, in essence, the Complaint alleged institutional discrimination “in the context of the provision of medical services, including in relation to general practitioners, in comparison with what would have been the position had the complainants ‘not been Indigenous’”.

87    I do not accept that submission. In my opinion, if the issues concerning the adequacy of interpreter services at medical consultations and the treatment of Mr Cumaiyi on 9 and 10 November 2016 are put to one side, it is readily apparent that the subject matter of the Complaint with respect to health services concerned only the inadequate provision of GPs. It is also plain that the more general pleas concerning health services in the ASC travel beyond that complaint in a matter which does not conform with s 46PO(3). The content of [4.2] and [5.12] in the Complaint makes this evident. Accordingly, the pleas in [52]-[61] of the ASC should be struck out. There should, however, be a grant of leave to the applicants to re-plead a claim with respect to the adequacy of the health services provided in Wadeye but confined in the manner required by s 46PO(3).

The travel for health services requirement

88    In [62]-[67], the applicants allege that the Territory discriminated against them by requiring them and Group Members to travel to other locations to access health services which were not available in Wadeye.

89    It is plain that the Complaint did not contain any claim to that effect. These paragraphs of the ASC should be struck out.

Conclusion on the respondents’ submissions concerning the subject matter of the action

90    In summary, for the reasons given above, I uphold the respondents’ submissions with respect to the pleading of the “non Commonwealth-funded Services” in subparas (b) and (f)-(l) inclusive of [28] and in respect of [52]-[67] of the ASC. There will be a grant of leave to the applicants to re-plead their claims concerning the adequacy of the health services (presently contained in [52]-[61] of the ASC) but in a manner which accords with these reasons and is compliant with s 46PO(3) of the AHRC Act.

Time period

91    The respondents contend that, whereas the allegations in the ASC concern the “Relevant Period”, being the period between 1 July 2014 and 29 August 2019, the focus of the allegations in the Complaint lodged with the AHRC had been on the events which occurred on 9 and 10 November 2016. They submit in addition that there had been no particularisation in the Complaint indicating that the period between 1 July 2014 and 9 November 2016 was material. This had the effect, they contend, that the applicants should be confined in the present proceedings to allegations of contravening conduct in the period between 9 November 2016 and 29 August 2019.

92    The period between 1 July 2014 and 9 November 2016 constitutes just under 50% of the total period between 1 July 2014 and 28 August 2019. The respondents contend that the “extension” of the period in the proceedings in this Court undermines the scheme contemplated in Pt IIB of the AHRC Act because the AHRC had not had the opportunity to consider the additional complaints, and to deal with them in the manner contemplated by that Part.

93    The respondents emphasise that the unlawful discrimination alleged in [1.1] and [1.2] in the Complaint was said to have occurred “in relation to the events leading up to, surrounding and arising from, the provision of policing and health care services to Mr Cumaiyi”. They also emphasise that the class of persons in respect of whom the Complaint was made were defined as “the Indigenous residents of Wadeye, ordinarily resident in Wadeye on 9 November 2016, who have been impacted by the discriminatory conduct of Respondents hereinafter described … represented by Mr Cumaiyi and his Family”. As I understood it, this was a submission that this definition added to the impression that complaint had not been made in respect of conduct before 9 November 2016.

94    The respondents referred to other indicia in the Complaint that allegations were not being made with respect to the whole of the “Relevant Period”. These include that, while the complainants had referred to Australian Bureau of Statistics data in 2013 concerning the per capita ratio of general practitioners to population in remote areas of Australia, the Complaint had referred to what the position should have been in 2016.

95    The respondents also note that, putting the allegations concerning the conduct towards Mr Cumaiyi on 9 and 10 November 2016 to one side, the great majority of the allegations in the Complaint concerning the institutional discrimination alleged were expressed in the present tense, such as “Wadeye has no full-time in situ doctor”, “[t]here are not regularly trained … interpreters in attendance at medical consultations”, “there are insufficient translation and interpretation services available”, and “there are inadequate translation and interpreting services available”. Numerous other examples could be given.

96    The respondents sought to support this understanding of the Complaint by noting that the media reports to which reference was made in the Complaint by way of support for the allegations of institutional discrimination in funding, policing and the provision of legal services comprised reports made between 2017 and 2019.

97    Section 46PO(3) does not contain any express stipulation of a time period. However, some limitation by reference to time, or perhaps occasion, is implicit in the notion of “unlawful discrimination”. As already noted, unlawful discrimination comprises acts, omissions or practices, that is to say, actual acts, actual omissions or actual practices which, if they have occurred (or, in the case of omissions, did not occur), did so at a particular time, during a particular period, or on a particular occasion.

98    The enquiry presently therefore is to ascertain the time, period or occasion at which the acts, omissions or practices alleged in the Complaint were said to have occurred. That assessment is to be made in the usual manner by which courts construe documents, namely, by an objective appraisal of the Complaint. This requires consideration of what the Complaint can be taken to have conveyed, considered objectively, to the President of the AHRC, being the person to whom it was directed.

99    In my opinion, a reasonable person making that objective assessment would take into account that the Complaint was prepared by lawyers and was structured so as to provide considerable particularity of the allegations being made. That being so, I consider that the respondents are correct in submitting that it is pertinent that the Complaint gave no indication that it concerned events as far back as 1 July 2014. Had that been the solicitors’ intention it would have been easy, and natural, for them to have said so.

100    The indications in the Complaint on which counsel for the applicants relied as indicating that the unlawful discrimination to which it referred had not been confined to acts, omissions or practices occurring or commencing only on 9 November 2016 were these:

(a)    the statement in [1.2] that the episode in which Mr Cumaiyi suffered serious injury on 9 and 10 November 2016 occurred “in the course of systemic discrimination”;

(b)    the claim in [1.16] that Mr Cumaiyi’s treatment was “indicative of the treatment of the Indigenous inhabitants of Wadeye by the respondents more generally”;

(c)    the allegation in [4.10] that Wadeye’s educational services “have been chronically under-funded and were the subject of a previous complaint” and that that “chronic lack of committed funding is in part responsible for the difficulties” which the complainants and Group Members have faced;

(d)    the assertion in [5.2] that the episode involving Mr Cumaiyi on 9 and 10 November 2016 “is indicative of the unlawfully discriminatory treatment of the Complainants and other Group Members by the Respondents and of the broader failure of the Respondents adequately to ensure that the they (sic) have been treated in a manner which respects its fundamental freedoms and human rights”;

(e)    the assertion in [5.4] that the conduct on 9 and 10 November 2016 “is indicative of a general pattern of such discriminatory conduct which has been ongoing for some time”; and

(f)    the claim in [7.2] in respect of the conduct alleged on 9 and 10 November 2016 “that general conduct has been ongoing for some time and is continuing”.

101    Counsel also submitted that the complaints with respect to several of the subject matters had not been “limited by a time period”.

102    It is not clear that the applicants had been intending in the Complaint to assert unlawful discrimination before 9 November 2016, although I accept that it is possibly implicit in the assertion that the events involving Mr Cumaiyi on 9 and 10 November 2016 occurred in the course of “systemic conduct”, and were “indicative” of more general conduct. However, it is also plausible to understand the Complaint as focussing on the treatment of Mr Cumaiyi on 9 and 10 November 2016, with the references on which counsel relied serving only to indicate that the unlawful conduct which occurred then was not isolated (or was of an entrenched kind) because it was the same as conduct which had been occurring for some time. That is, the references to “systemic conduct” and to “general conduct” were made by way of characterising the conduct said to have occurred on 9 and 10 November 2016, rather than comprising a complaint of conduct occurring at some other time. On balance, I think that this is the better view of the Complaint.

103    I accept that the use of the present tense in the Complaint provides some support for the respondents’ submission, but regard it as only slight. It is not uncommon for persons describing a continuing state of affairs to do so using the present tense even though that necessarily encompasses, in part, periods which have already occurred.

104    I do not regard the applicants’ reliance in the Complaint on media reports made between 2017 and 2019 as a matter which is significant presently. It is commonplace for the media to report on matters which have occurred in the past, as well as on contemporaneous matters. That being so, the date on which a media report was made may say little about the time when the conduct described in the report occurred.

105    The applicants submitted that the approach of the respondents to the Complaint, and in particular their references to the use of the present tense in the Complaint, was unduly technical and, therefore, not consistent with s 46PR. As noted earlier, s 46PR provides that “in proceedings under this Division” courts are not bound by “technicalities or legal forms”. I do not consider s 46PR to be of assistance presently, as the issue concerns the Court’s jurisdiction. The Court must still “respect the substantive directions given in s 46PO(3)” to ascertain the matters in respect of which its jurisdiction has been invoked: Maghiar v State of Western Australia [2002] FCA 262 at [18]; Dye at [48]. See also Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 at [104]-[105].

106    However, putting these last three matters to one side, I do consider that it is fair to conclude, as the respondents contend, that most of the allegations in the Complaint concerning the institutional discrimination alleged seem to be describing contemporaneous circumstances in Wadeye and not circumstances in a period commencing on 1 July 2014. That is the general tenor of the Complaint. More particularly, I do not consider that the President of the AHRC would have understood that the Complaint was referring to acts, omissions and practices said to have been occurring as far back as 1 July 2014.

107    This impression is strengthened by counsel’s explanation for the applicants’ selection of the date 1 July 2014 as the commencement date of the “Relevant Period”. Counsel explained that it had been selected so as to avoid pleading a claim which would be time barred by reason of limitations of action legislation and, further, so as to have some coincidence with the financial years on which funding for the various services was provided. The proposition implicit in that explanation is that, were it not for time bar and funding cycle considerations, it would have been open to the applicants, if they wished, to have selected a still earlier commencement date. Counsel’s submission did not, however, indicate a basis upon which, in accordance with s 46PO(3)(a) or (b), acts or omissions and practices occurring within the whole of the period commencing on 1 July 2014 could be regarded as encompassed by the Complaint. In particular, counsel was unable to explain by reference to the Complaint why some alternative period was not the period which had been conveyed, say, the period commencing on 1 July 2015, or on 1 July 2016, or for that matter (putting aside the issue of a time bar) commencing on a date some five or ten years earlier. The very fact that the applicants have thought it possible to select at their discretion the commencing date for the period of the unlawful conduct alleged which is not linked to the content of the Complaint itself suggests that their pleaded case travels beyond the Complaint.

108    Ultimately, the matter is to be determined by an application of s 46PO(3) according to its terms, as explained by Katz J in Charles v Fuji Xerox and in the subsequent decisions and as outlined above. It should also be determined on the basis that the Complaint had, as required by s 46P(1B) set out as fully as practicable details of the alleged acts, omissions or practices , and, in doing so had not made any specific complaint concerning the period before 9 November 2016.

109    In my view, the factual allegations of conduct occurring in the period from 1 July 2014 to 9 November 2016 cannot reasonably be regarded as the same as (or the same in substance as) the unlawful discrimination which was the subject of the terminated complaint. The fact that the acts, omissions or practices occurred at different times (as must be the case) is sufficient to indicate that that is so. For similar reasons, the acts, omissions or practices occurring throughout the period from 1 July 2014 to 9 November 2016 cannot be said to arise out of the same, or substantially the same, acts which were the subject of the terminated complaints.

110    This understanding is consistent with the statement of Lehane J in Travers at [8] quoted earlier that an allegation of discrimination “covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of” (emphasis added) is not permissible.

111    Two other matters support my understanding of the period of the conduct to which the Complaint referred. The first is that it is consistent with the applicants’ own view as indicated by the terms of the Originating Application filed on 28 October 2019. It indicated that the claimants were alleging unlawful discrimination which occurred on 9 and 10 November 2016 and between 9 November 2016 and 9 May 2019. It was only by the Amended Originating Application filed some five months later (on 8 April 2020) that the applicants alleged discriminatory conduct commencing on 1 July 2014. The applicants’ change of position would be immaterial if the pleading was otherwise consistent with s 46PO(3) but the applicants’ own understanding of the content of their Complaint supports the construction I think appropriate.

112    The second is that the affidavit of the applicants’ solicitor filed on 28 October 2019, which accompanied the Originating application and sought to support it, contained no reference to unlawful discrimination in a period commencing on 1 July 2014. It is not immaterial that that affidavit was made by the same solicitor who lodged the Complaint with the AHRC.

113    Accordingly, I hold that s 46PO(3) precludes the applicants from alleging in the proceedings conduct said to be unlawful which occurred before 9 November 2016. The plea of the Relevant Period should therefore be struck out, but with leave to re-plead in accordance with these reasons. This will not of course preclude the applicants from leading evidence at the trial of matters which occurred before 9 November 2016 in support of the conduct which they allege occurred on and after that date.

Conclusion

114    For the reasons stated above, the following pleas in the ASC are struck out:

(a)    subparagraphs (b) and (f)-(l) in the second list in [28];

(b)    paragraphs [52]-[61];

(c)    paragraphs [62]-[67]; and

(d)    the plea of the “Relevant Period” in [1].

115    The applicants have leave to re-plead their claims presently contained in [52]-[61] and their claim of the “Relevant Period”, but only in a manner which is in accordance with these reasons and with s 46PO(3) of the AHRC Act.

116    The amended statement of claim is to be entitled “Third Statement of Claim”.

117    I will hear from the parties with respect to costs and with respect to any consequential matters.

Associate:

Dated:    9 September 2020

SCHEDULE OF PARTIES