FEDERAL COURT OF AUSTRALIA
Leach v Burston [2022] FCA 87
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 10 February 2022 |
THE COURT ORDERS THAT:
1. The cause of action in the Further Amended Originating Application alleging a contravention of s 28G(2) of the Sex Discrimination Act 1984 (Cth) be summarily dismissed.
2. Paragraphs 11, 12 and 13 of the Points of Claim be struck out.
3. The respondent’s interlocutory application filed on 14 September 2021 (interlocutory application) be otherwise dismissed.
4. If the parties are unable to agree orders by 24 February 2022 with respect to the payment of their costs of and incidental to the hearing of the interlocutory application, each party should by not later than that date file and serve a copy of their proposed orders as to costs, together with an outline of written submissions in support not exceeding two pages in length.
5. Costs orders will then be determined on the papers and without a further oral hearing.
6. The matter be listed for a case management hearing at 9.30 am on Friday, 18 February 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HALLEY J:
Introduction
1 By an interlocutory application filed on 14 September 2021, the respondent, Mr Brian Burston, seeks an order pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Act) and r 26.01(1)(a), (b), (c) or (d) of the Federal Court Rules 2011 (Cth) (Rules) dismissing the proceeding summarily or alternatively an order pursuant to r 16.21 that parts of the Points of Claim dated 13 May 2021 (POC) be struck out.
2 In summary, the respondent contends that:
(a) having regard to s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the applicant, Ms Wendy Leach, cannot pursue these proceedings in this Court because the claims that she seeks to advance were not the same claims or did not arise out of the same claims that were the subject of the complaint terminated in the Australian Human Rights Commission (Commission);
(b) this Court has no jurisdiction to determine whether the respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) and no power to declare the respondent has committed an offence; and
(c) further, or in the alternative, the claims advanced by the applicant have no reasonable prospects of success.
3 The first contention advanced by the respondent raises for determination whether, in the context of a summary dismissal/strike out application, it is reasonably arguable that the “acts, omissions and practices” for the purposes of s 46PO(3)(b) are confined to the events constituting the sexual harassment or sex discrimination. For the reasons outlined below in relation to my consideration of the application of s 46PO(3) of the AHRC Act, I am satisfied that it is reasonably arguable that the “acts, omissions or practices” which are the subject of s 46PO(3)(b) are limited to the events constituting the alleged sexual harassment or sex discrimination, and further that it is not appropriate to determine this issue on a summary dismissal/strike out application.
4 The second contention advanced by the respondent raises for determination whether it is reasonably arguable in the context of a summary dismissal/strike out application that the definition of unlawful discrimination in s 3 of the AHRC Act, together with s 46PO of the AHRC Act, confer jurisdiction on this Court to hear a civil claim of victimisation as unlawful discrimination, conduct that is an offence under s 94 of the SD Act. I am satisfied for the reasons outlined below in relation to my consideration of the proper construction and effect of s 94 of the SD Act that it is reasonably arguable that the Court does have such jurisdiction and it is not appropriate to determine this issue on a summary dismissal/strike out application.
5 The third contention advanced by the respondent raises for determination whether the POC discloses any reasonably arguable causes of action. I am satisfied for the reasons outlined below in relation to my consideration of whether the POC discloses any reasonably arguable cause of action that, with the exception of the claims relating to s 28G(2) of the SD Act alleging sexual harassment in the course of the provision of the receipt of services, the claims advanced in the POC are reasonably arguable.
6 The respondent has not demonstrated that the applicant has no reasonable prospects of success in establishing the claims that she has advanced in the POC, other than with respect to the s 28G(2) claims.
Factual Background
7 On or about 1 September 2016 the applicant commenced work as a full-time member of the respondent’s electorate office staff. She was employed by the Commonwealth pursuant to Part IV of the Members of Parliament (Staff) Act 1984 (Cth) (MOPS Act).
8 Section 20(1) of the MOPS Act provides:
A Senator or a Member of the House of Representatives may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the staff of the Senator or Member
9 The applicant contends that during that employment she was providing services to the respondent, and the respondent exercised many of the powers and responsibilities of an employer including exercising day to day control and direction over her duties.
10 On 29 October 2018, the applicant’s employment was terminated with immediate effect because of events that had occurred over the previous weekend that are not necessary to set out for present purposes.
11 In or about the first half of November 2018, the applicant alleges that she provided the Department of Finance with a document setting out her account of the respondent’s conduct towards her and other staff during her employment as a member of the respondent’s electoral office staff (Leach Employment Story Document). The respondent admits that the Leach Employment Story Document was provided to the Department of Finance but says he does not know and cannot admit when it was provided.
12 On 16 November 2018, the applicant brought an unfair dismissal claim against the Commonwealth in the Fair Work Commission pursuant to Part 3-2 of the Fair Work Act 2009 (Cth) (Unfair Dismissal Claim).
13 On 16 January 2019, following a conciliation conference and the acceptance by the applicant of a settlement offer from the Commonwealth, the Commonwealth and the applicant signed a deed of settlement that brought the Unfair Dismissal Claim to an end (Settlement Deed).
14 On 15 November 2019, the applicant made a complaint to the Commission (Complaint).
15 The applicant made four allegations against the respondent in the Complaint.
16 First, the respondent had sexually harassed her within the meaning of s 28B(2) of the SD Act as a ‘fellow employee’ by reason of what was described as the ‘Pet Incident’ sometime after 1 September 2016 and the ‘Sexual Proposition Incident’ on 1 May 2018, which she alleged to be unwelcome sexual advances and engaged in unwelcome conduct of a sexual nature.
17 Second, the same conduct amounted to ‘direct sex discrimination’ in contravention of s 14(2) of the SD Act. Specifically, she alleged that the Pet Incident and the Sexual Proposition Incident together with what was described as the ‘Sexist Hiring Comment’, which she was told about in 2018 but occurred in 2016, were breaches of s 14(2) of the SD Act because she was subjected to a detriment.
18 Third, the respondent engaged in “indirect sex discrimination” in breach of s 14(2) of the SD Act because he imposed a condition, requirement or practice which had or was likely to have the effect of disadvantaging females. The applicant alleges that this was the requirement that she work in a sexually hostile environment by reason of his fostering and facilitating the ‘Pet Incident’, the ‘Sexist Hiring Comment’, the ‘Sexual Proposition Incident’ and what was described as the ‘Inappropriate Sexual Environment’.
19 Fourth, the applicant was subjected to an act of victimisation by the respondent because she had asserted her rights by reference to s 94(2)(g) of the SD Act and the respondent is therefore “liable for victimisation under s 94 of the SD Act, which constitutes unlawful discrimination pursuant to s 3 of the AHRC Act”. The alleged act of victimisation was the respondent making public denials, in the period between 30 January 2019 and 15 April 2019, of the instances of sexual harassment alleged in the Complaint.
20 The applicant also alleged in the Complaint that the Commonwealth was vicariously liable for the respondent’s alleged breaches of s 14(2) and s 28B(2) of the SD Act.
21 A delegate of the President of the Commission terminated the Complaint, as against the Commonwealth, on the ground that the applicant had sought another remedy and noted the release given by the applicant in the Settlement Deed, and, as against the respondent, on the basis that there was no reasonable prospect of the matter, as it concerned him, being settled by conciliation.
22 On 13 November 2020, the applicant commenced these proceedings against the respondent and the Commonwealth.
23 The claim as formulated against the respondent in the origination application was that he had:
a. discriminated against her on the ground of sex and engaged in sexually harassing conduct in contravention of sections 5, 14, 28A and 28B of the SDA.
b. committed acts of victimisation against her in contravention of section 94 of the SDA.
24 The applicant only relied on ss 5, 14, 28A, 28B and 94 of the SD Act.
25 The grounds on which the Complaint was terminated against the Commonwealth meant the applicant was required to obtain the Court’s leave to commence a proceeding against the Commonwealth, pursuant to s 46PO of the AHRC Act.
26 On 22 January 2021, Lee J heard an application by the applicant for leave to proceed against the Commonwealth.
27 On 9 February 2021, the applicant filed an amended originating application. The applicant withdrew her allegations of contraventions of ss 14 and 28B and advanced claims based on different sections of the SD Act. She alleged that the respondent:
a. discriminated against her on the ground of sex and engaged in sexually harassing conduct in contravention of sections 5, 14, 26, 28A, and 28B, 28G(2) and 28L of the SDA.
b. committed acts of victimisation against her in contravention of section 94 of the SDA.
28 On 2 March 2021, Lee J dismissed the application for leave to proceed against the Commonwealth.
29 On 12 March 2021, the applicant filed a further amended originating application (FAOA). The claims against the Commonwealth were removed. The claim that the respondent had committed acts of victimisation against the applicant in contravention of s 94 of the SD Act was retained but the claim that the discrimination complained of was unlawful pursuant to s 94 was removed, as was the reference to the applicant seeking a declaration that the respondent had contravened s 94.
30 On 13 May 2021, the POC were filed by the applicant. The relief that the applicant seeks in the POC includes a declaration that:
Mr Burston has unlawfully victimised Ms Leach contrary to s.94 of the Sex Discrimination Act 1984.
31 The applicant’s claims in the POC can be summarised as follows:
(a) by reason of the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’, the respondent sexually harassed the applicant as defined in s 28A of the SD Act, contrary to both s 28G(2) and s 28L of the SD Act.
(b) by reason of the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’, and the ‘Sexist Hiring Comments’, the respondent engaged in direct sex discrimination as defined in s 5(1) of the SD Act, and contrary to s 26 of the SD Act.
(c) by reason of the respondent engaging in ‘Sexist and/or Sexually Charged Conduct’ in relation to his electorate office staff, he imposed a condition, requirement or practice on the applicant that constituted indirect sex discrimination as defined in s 5(2) of the SD Act, and contrary to s 26 of the SD Act.
(d) the respondent engaged in acts of victimisation in response to and actuated by allegations made by the applicant that the respondent had engaged in sexual harassment, such that he committed acts of victimisation contrary to s 94(1) of the SD Act.
32 The applicant contends that the Leach Employment Story Document included an account of the Sexual Proposition Conduct.
Preliminary statutory context and relevant principles
Summary dismissal and striking out pleadings
33 Sections 31A(2) and (3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provide that:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
34 Rule 16.21 of the Rules provides:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
35 The parties were in broad agreement about the relevant principles guiding the exercise of the Court’s discretion to summarily dismiss proceedings or to strike out pleadings.
36 The principles relevant to summary dismissal can be summarised as follows:
(a) the discretion to summarily dismiss proceedings should be exercised if, and only if, the Court is satisfied that there is no reasonable prospect of success: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ);
(b) the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail: Spencer at [52];
(c) the use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128]-[129] (Gordon J);
(d) full weight must be given to the expression “no reasonable prospect” as a whole, and it might readily be accepted that the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [60]
(e) particular caution to exercise the discretion is required if there are factual disputes and evidence is not in a final form: Houston v State of New South Wales (No 2) [2021] FCA 637 (Houston) at [5(d)] (Griffiths J); Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 at [43]-[45] (Rares J);
(f) appropriate account needs to be taken of the possibility that existing authority may be overruled, qualified or further explained; summary dismissal must not be used to stultify the development of the law: Houston at [5(e)] (Griffiths J); Spencer at [25]; Western Australia v Fazeldean and Others (No 2) (2013) 211 FCR 150; [2013] FCAFC 58 at [35] (Allsop CJ, Marshall and Mansfield JJ); and
(g) the party seeking summary dismissal bears the onus of establishing the proceeding or defence has no reasonable prospects of success: Kitiko v University of Technology Sydney [2021] FCA 360 at [55] (Griffiths J).
37 The principles relevant to the power to strike out pleadings can be summarised as follows:
(a) the power should be employed sparingly and only in a clear case: Polar Aviation Pty Ltd and Another v Civil Aviation Safety Authority and Others (2012) 203 FCR 325; [2012] FCAFC 97 (Polar Aviation) at [42]-[43] (Perram, Dodds-Streeton and Griffiths JJ). Normally, the power to strike out should be exercised where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455;
(b) if a pleading is struck out, a Court will ordinarily permit the party to replead unless it would be futile to do so: Nulyarimma v Thompson (1999) 96 FCR 153; [1999] FCA at [208] (Merkel J); Houston at [6];
(c) a reasonable cause of action means a case with some chance of success having regard to the pleaded allegations. The mere fact that at an interlocutory stage a case appears to be weak is not sufficient to justify striking out the proceeding: Polar Aviation at [42]; cf Davey v Bentinck [1893] 1 QB 185;
(d) the pleadings must state all material facts necessary to establish the cause of action and the relief sought: Wride v Schulze [2004] FCAFC 216 at [25] (Spender, Tamberlin and Bennett JJ); Bruce v Odhams Press Limited [1936] 1 KB 697 at 712-13 (Scott LJ);
(e) failure to plead all material facts does not necessitate exercise of the discretion. Restraint will be appropriate where the omission has not caused confusion nor raised substantive principles, or where the deficiency can be resolved through the provision of further particulars or evidence: Deep Investments Pty Ltd v Casey [2018] FCA 603 at [211] (Gleeson J) citing HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59]; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; [1999] ATPR 41-691 at 42,828-9;
38 In Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; 386 ALR 331; [2020] VSCA 186, Niall, Hargrave and Emerton JJA noted the “high hurdle” faced by defendants seeking to strike out claims for failing to disclose a reasonable cause of action. Their Honours said at [35]:
Uber’s contentions on ground 1 fail to grapple with the high hurdle it must cross, and the low bar confronting the plaintiff. When a defendant contends that a statement of claim should be struck out because it does not disclose a cause of action it is necessary for a defendant in the position of Uber to establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. It follows that, where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context.
Operation of the SD Act
39 Unless otherwise indicated, the provisions of the SD Act outlined below are the provisions that were in force at the time of the impugned conduct.
40 Section 9 of the SD Act reflects the constitutional basis upon which the Commonwealth has the power to enact legislation with respect to sexual discrimination. It sets forth the specific circumstances in which the SD Act will be enlivened. It relevantly provides:
(5) Sections 14, 15, 16 and 28B have effect in relation to discrimination against, and sexual harassment of:
(a) Commonwealth employees in connection with their employment as Commonwealth employees; and
(b) persons seeking to become Commonwealth employees.
41 Section 14 of the SD Act is directed at discrimination in specific employment relationships and superannuation. It relevantly provides:
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
42 Division 2 of Part II the SD Act is directed at discrimination in other areas, including in connection with the supply of goods, services and facilities. Section 22 provides:
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section binds the Crown in right of a State.
43 The expression “discriminate” is defined in s 5 of the SD Act in these terms:
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
44 Sexual harassment is addressed in Division 3 of Part II of the SD Act. The expression “sexual harassment” is defined in s 28A which provides:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
45 Section 28B(2) provided:
It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
46 For present purposes, the other relevant provisions of the SD Act are ss 26, 28G(2), 28L and 94. I address these provisions below in the course of my consideration of the proper construction and effect of s 94 and the various causes of action sought to be advanced in the POC.
AHRC Act
47 The process for lodging an unlawful discrimination complaint to the Commission is set forth in s 46P of the AHRC Act. Section 46P relevantly provides:
(1) A written complaint may be lodged with the Commission:
(a) alleging:
(i) that one or more acts have been done; or
(ii) that one or more omissions or practices have occurred; and
(b) alleging that those acts, omissions or practices are unlawful discrimination.
Note: Unlawful discrimination is defined in subsection 3(1).
…
(1A) It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
(1B) The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices.
48 Section 46PO(1)(a) provides that if a complaint to the Commission has been terminated by the President of the Commission under s 46PE, s 46PF(1)(b) or s 46PH any person who is an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australian (Division 2) (Federal Circuit Court) alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
49 Section 46PH(1B)(b) provides that the President must terminate a complaint if the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.
THE APPLICATION OF SECTION 46PO(3) OF THE SD ACT
Statutory provisions and relevant principles.
50 Section 46PO(3) of the AHRC Act provides:
(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.
51 The effect of s 46PO(3) is to confine the proceeding that might be brought in the Federal Court or the Federal Circuit Court to the same (or the same in substance) unlawful discrimination or the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. The Full Court in Grigor-Scott v Jones (2008) 168 FCR 450; [2008] FCAFC 14 at [19] (Emmett, Lander and Tracey JJ) stated:
The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).
52 The Full Court in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (Dye FCAFC) (Marshall, Rares and Flick JJ) stated at [70]-[71]:
70 The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act. (The draft amendment referred to s 46 but that was an obvious typographical error for s 46PO and we were satisfied this could be corrected.) She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act. Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s 94 of the Sex Discrimination Act. As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3). In arriving at this conclusion her Honour applied Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362–363 [20], 366 [31]–[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
71 The primary judge was correct to have rejected this amendment because Re East 196 CLR 354 made it unarguable. The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act: Re East 196 CLR at 364–365 [24]–[25]. Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act. That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. Neither the AHRC Act nor the Sex Discrimination Act create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act: Re East 196 CLR 354. It follows that the primary judge was correct to have rejected this proposed amendment to para 75.
53 In Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [18]-[21], White J stated with respect to s 46PO(3):
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.
54 In Travers v State of New South Wales [2000] FCA 1565 at [8], Lehane J stated:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility (“or the same in substance as”, “or substantially the same”) and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the “complaint” to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant’s submission to the contrary.
55 In King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149; [2012] FCA 8 (King), Robertson J considered whether the applicant was precluded by s 46PO(3) from bringing a claim, in the alternative, for indirect discrimination that had not been advanced in the terminated complaint. His Honour concluded at [25]-[26]:
25. The point of reference in s 46PO(3) is the unlawful discrimination alleged in the application to the Court: it is that which must either be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint or which must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. I emphasise the alternative. It is sufficient if the unlawful discrimination alleged in the application to the Court arises out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.
26. I therefore reject Jetstar’s submission that if the unlawful discrimination the subject of the terminated complaint was only within s 5 and not s 6 the applicant could not rely on indirect discrimination in this Court. This is because in this case the unlawful discrimination alleged in the application to the Court arose out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.
56 In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 (Fuji Xerox), Katz J stated at [39]-[40] that s 46PO(3)(b) permitted an applicant to rely on facts not different in substance from those alleged in a terminated complaint and to claim that facts now being alleged bore a legal character that was different in substance to the legal character that the facts alleged in the terminated complaint bore. In coming to this conclusion, Katz J referred to the Explanatory Memorandum for the Human Rights Legislation Amendment Bill (No 1) 1999 that introduced s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA):
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 is worth recording here that, although the Senate explanatory memorandum for the Bill which became the amending Act did not elaborate on the intended operation of the proposed s 46PO(3)(a) of the HREOCA, it did elaborate on the intended operation of the proposed s 46PO(3)(b) of the HREOCA, saying,
“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 or 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.”
57 Justice Katz, however, did not accept that s 46PO(3)(b) permitted the applicant to include allegations of unlawful disability discrimination in employment that occurred after 3 April 1999, being the date on which the complaint was made to the Commission. His Honour considered that there was nothing in the language of s 46PO(3)(b) nor the passage of the Senate explanatory memorandum which would support such a construction: Fuji Xerox at [36], [41]. His Honour also considered that a construction that did not permit the applicant to rely in the proceedings on any act done after 3 April 1999 as constituting unlawful discrimination was consistent with the policy of the HREOCA of ensuring that there is an opportunity for conciliation before complaints were litigated: Fuji Xerox at [42].
58 Section 46PO(3) permits reliance on facts that differ to a “certain extent” from those alleged in the terminated complaint: Fuji Xerox at [41]. The section does not require “complete symmetry” between the allegations in an application to the Court and allegations made in a terminated complaint: Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 at [17] (Marshall J). Further, the section does not preclude reliance on more specific allegations, including identification of those involved in the conduct, than those made in general terms in a terminated complaint: Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 at [77]-[87] (Collier J). The section allows a new allegation or new allegations about the same incident to be advanced before the Court: Dye v Commonwealth Securities Limited [2010] FCA 720 at [106] (Katzmann J) (Dye FCA).
Submissions
59 The respondent submits that the applicant has abandoned her employment claims and is now seeking to advance new claims based on other grounds in Part II of the SD Act, namely claims based on the receipt of services ground (s 28G(2)) and Commonwealth laws and programs ground (ss 26 and 28L).
60 He submits that s 46PO(3) of the AHRC Act confines any proceedings before the Court to the subject matter of the terminated complaint and an applicant cannot bypass the filtering procedures provided for in the AHRC Act by raising new or different claims to those identified in the terminated claim and investigated by the Commission.
61 The respondent submits no allegation with respect to ss 26, 28G(2) and/or 28L of the SD Act was made in the Complaint and that the claims that are now sought to be advanced in the POC alleging contraventions of these sections are new. He submits that the claims advanced in the POC are materially different to the claims made in the Complaint and the allegations are not the “same” or “substantially the same” as the matters alleged in the Complaint.
62 The respondent contends that the “acts, omissions or practices” that were the subject of the terminated complaint for the purposes of s 46PO(3)(b) of the SD Act are not restricted to the “events” of sexual harassment or sex discrimination. Rather, he submits, they encompass all “acts, omissions or practices” that would be necessary to enliven the specific provisions of the SD Act relied upon by the applicant. He submits that the applicant has overlooked that the words “unlawful discrimination” in s 46PO(3) are directed to the particular areas in Part II of the SD Act that proscribe conduct.
63 Hence, he submits the applicant needs to demonstrate that all of the matters that she now seeks to rely upon to engage s 26 of the SD Act with respect to sex discrimination and ss 28G(2) and 28L with respect to sexual harassment were identified in the Complaint. He submits that as the alleged “services” and the alleged “Commonwealth laws and programs” were not the subject of, or otherwise identified in, the Complaint, the causes of action based on these sections of the SD Act cannot now be advanced in the POC.
64 The respondent also submits that the applicant should not be permitted to advance the claims:
(a) in paragraphs 28 to 31 of the POC, because they contain a new complaint that a copy of the Leach Employment Story Document was subsequently provided to the respondent (Leach Employment Document Claims); and
(b) in paragraphs 31, 35 and 38 of the POC, because they raise new allegations of victimisation by way of broader publications and/or different detriment to that alleged in the terminated complaint (Broader Publication Claims).
65 The respondent contends that these claims were not the same or substantially the same as those advanced in the Complaint and are therefore excluded by operation of s 46PO(3) and should be struck out. The applicant submits that each of the ss 26, 28G(2) and 28L claims, the Leach Employment Document Claims and the Broader Publication Claims arise out of the same, or substantially the same acts, omissions and practices that were the subject of the Complaint and therefore satisfy the requirement in s 46PO(3)(b).
66 The applicant submits that the “acts, omissions or practices” that she relies upon in the POC are the same, or substantially the same, as those she relies upon in the Complaint, and she is permitted by reason of s 46PO(3)(b) to put a different legal complexion in the POC on those acts, omissions or practices. She contends that her claims are therefore not excluded by reason of s 46PO(3) and are not liable to be dismissed or struck out.
67 The applicant submits that the Leach Employment Document Claims were not expressly referred to in the Complaint but the Complaint did include a claim of victimisation on the basis that the applicant had asserted that she had been sexually harassed by the respondent.
68 The applicant submits that the Broader Publication Claims are further allegations, or particulars of the respondent’s public denials of the sexual harassment alleged in the Complaint and are therefore acts, omissions or practices that are substantially the same as those she relied upon in the Complaint.
Consideration
Construction of s 46PO(3)
69 The statutory provisions, in particular s 46PO(3), and the authorities make plain that the Commission is to act as a gateway to the Court hearing complaints of unlawful discrimination.
70 The two limbs of s 46PO(3) focus on the unlawful discrimination that was advanced in the terminated complaint (s 46PO(3)(a)) and the acts, omissions or practices that were the subject of the terminated complaint (s 46PO(3)(b)). The two limbs are expressed in the alternative.
71 The unlawful discrimination that may be alleged in an application to the Court is not limited to the unlawful discrimination that was the subject of the terminated complaint. Any different or new claim of unlawful discrimination must, however, arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
72 It would appear reasonably well settled that any acts, omissions or practices must have occurred or existed as at the date on which the terminated complaint was first made to the Commission: Fuji Xerox at [36], [41].
73 I am satisfied that it is reasonably arguable that the relevant “acts, omissions or practices” alleged in the POC for the purposes of s 46PO(3)(b) are the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’, the ‘Sexist Hiring Comments’ and the ‘Sexist and/or Sexually Charged Conduct’. These acts, omissions or practices constituted the same matters that were referred to in the Complaint as the ‘Pet Incident’, the ‘Sexual Proposition Incident’, the ‘Sexist Hiring Comment’ and the ‘Inappropriate Sexual Environment’.
74 I consider that it is reasonably arguable, contrary to the position advanced by the respondent, that the acts, omissions or practices referred to in s 46PO(3)(b) do not extend beyond the “events” that gave rise to the alleged unlawful discrimination. Textually, the expression “acts, omissions or practices” appears to refer to the conduct that is alleged to have given rise to the unlawful discrimination, not the statutory elements of unlawful discrimination as specified in the various sections of Part II of the SD Act. Such an alternative construction would, on one view, be antithetical to the apparent clear demarcation between the “unlawful discrimination” in s 46PO(3)(a) and the “acts, omissions or practices” in s 46PO(3)(b).
75 I consider that it is reasonably arguable that an interpretation that extended the acts, omissions or practices to each of the statutory elements of unlawful discrimination in different sections of Part II of the SD Act would effectively render inutile s 46PO3(b). Advancing a claim of unlawful discrimination not advanced in a terminated complaint, but arising out of the same (or substantially the same) acts, omissions or practices, necessarily would require raising additional factual matters to satisfy the specific statutory elements of the different unlawful discrimination now sought to be relied upon. Such additional matters are to be distinguished from the acts, omissions or practices relied upon as constituting or giving rise to the unlawful discrimination. They would include, by way of example with respect to a claim under s 26 or s 28L, the identification of the specific Commonwealth law or program pursuant to which it is alleged a person performed any function or exercised any power.
Paragraphs 11, 12, 13 and 47(a) of the POC
76 In paragraphs 11, 12, and 13 of the POC it is alleged that by reason of the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’, each of which is alleged to have occurred in the course of the applicant’s work as a member of the respondent’s electorate office staff, the respondent sexually harassed the applicant contrary to s 28G(2) of the SD Act. Paragraph 47(a) of the POC seeks a declaration that the respondent unlawfully sexually harassed the applicant contrary to s 28G(2) of the SD Act.
77 For the reasons outlined above, I am satisfied that it is reasonably arguable that the acts, omissions and practices relied upon to advance the s 28G(2) (receipt of services sexual harassment) claims are the same or substantially the same as the acts, omissions and practices that were relied upon to advance the s 28B(2) (employment sexual harassment) claims in the Complaint.
78 I am therefore not satisfied that the respondent has established that the applicant’s contention that it can rely on s 46PO(3)(b) to advance the claims in these paragraphs of the POC has no reasonable prospects of success.
Paragraphs 14 to 19, 20 and 21 and 22 to 27 of the POC
79 In paragraphs 14 to 19 of the POC it is alleged that by reason of the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’, each of which it is alleged occurred in the course of the applicant’s work as a member of the respondent’s electorate office staff, the respondent sexually harassed the applicant contrary to s 28L of the SD Act. Paragraph 47(a) of the POC seeks a declaration that the respondent unlawfully sexually harassed the applicant contrary to s 28G(2) and s 28L of the SD Act.
80 In paragraphs 20 and 21 of the POC it is alleged that by reason of the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’, and the ‘Sexist Hiring Comments’, each of which is alleged to have occurred in the course of the applicant’s work as a member of the respondent’s electorate office staff, the respondent discriminated against the applicant on the grounds of her sex, contrary to s 26 of the SD Act. Paragraph 47(b) of the POC seeks a declaration that the respondent unlawfully sexually discriminated against the applicant contrary to s 26 of the SD Act.
81 In paragraphs 22 to 27 of the POC a claim of indirect sex discrimination contrary to s 26 of the SD Act is alleged. It is based on a large number of individual instances of pleaded conduct giving rise to the conclusion that the respondent’s electorate office was a ‘Sexist and/or Sexually Charged Workplace’, and that the applicant was required to acquiesce to work in such a workplace in order to remain in her employment.
82 For the reasons outlined above, I am satisfied that is reasonably arguable that the acts, omissions and practices relied upon to advance the ss 26 and 28L (Commonwealth laws and programs sex discrimination and sexual harassment) claims are the same or substantially the same as the acts, omissions and practices that were relied upon to advance the s 28B(2) (employment sexual harassment) claims in the Complaint.
83 I am therefore not satisfied that the respondent has established that the applicant’s contention that it can rely on s 46PO(3)(b) to advance the claims in these paragraphs of the POC has no reasonable prospects of success.
Paragraphs 28 to 31, 35 and 38 of the POC
84 These paragraphs are part of the applicant’s claim that the respondent engaged in acts of victimisation contrary to s 94(1) of the SD Act.
85 Paragraphs 28 to 31 of the POC refer to the applicant providing the Department of Finance with two iterations of the Leach Employment Story Document, which it is alleged included an account of the “Sexual Proposition Conduct”. Paragraph 37 refers to a letter in which it was asserted that the applicant had made “defamatory and false statements” about the respondent in “a complaint” that would be, or had been, “republished to third-parties including, but not limited to, other political parties and journalists” (Defamation Threat letter).
86 Further, the letter that accompanied the applicant’s original complaint referred to and attached a 15 April 2019 letter from Alexander Law, a firm of solicitors acting for the respondent, which included a threat to commence defamation proceedings against the applicant seeking a large sum in damages. This is the “Defamation Threat” referred to in paragraph 37 of the POC. Each of the allegedly defamatory statements set out in the Defamation Threat letter appear to have been sourced from the allegations set out in the Leach Employment Story Document. They include an allegation that the respondent had sexually harassed the applicant.
87 Paragraph 35 of the POC refers to certain denials made by the respondent to the media, which were then published in the articles set out in that paragraph.
88 The Complaint included references to:
(a) denials made by the respondent in or around mid-February 2019 to the Sydney Morning Herald and the Guardian Australia that were published by those media outlets, being denials that are now pleaded in paragraphs 32 and 33 of the POC; and
(b) further unspecified media articles in or around March 2019 in which the respondent referred to having launched defamation action against the applicant and imputed that the applicant had made false statements.
89 I consider that it is reasonably arguable that the denials pleaded at paragraph 35 of the POC are either denials that were made in the unspecified media articles in or around March 2019 that were referred to in the Complaint, or they can fairly be construed as further allegations or particulars of the respondent’s “public denials regarding the above instances of sexual harassment”, being conduct that was the subject of the Complaint.
90 I am therefore not satisfied that the respondent has established that the applicant’s contention that she is not precluded by s 46PO(3) from seeking to press a claim in these proceedings that the respondent’s denials made to media outlets, and his making of the “Defamation Threat”, constitute him subjecting, or threatening to subject, the applicant to a detriment for the purposes of s 94(2) of the SD Act, has no reasonable prospect of success.
PROPER CONSTRUCTION AND EFFECT OF SECTION 94 OF THE SD ACT
Statutory provisions and relevant principles
91 Part IV of the SD Act is entitled “Offences” and includes a range of offences, including an offence of victimisation in s 94.
92 Section 94 of the SD Act provides:
(1) A person shall not commit an act of victimization against another person.
Penalty:
(a) in the case of a natural person—25 penalty units or imprisonment for 3 months, or both; or
(b) in the case of a body corporate—100 penalty units.
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or
(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.
93 Section 3(1) of the AHRC Act relevantly provides:
Unlawful discrimination means any acts, omissions or practices that are unlawful under:
…
(c) Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52);
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial Discrimination Act 1975; or
(f) section 94 of the Sex Discrimination Act 1984.
94 Paragraphs (ca), (d) and (e) of the definition of unlawful discrimination in s 3(1) of the AHRC Act encompass the offence victimisation provisions in the discrimination statutes referred to in those paragraphs.
95 The Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (SD 2021 Amendment Bill), included the following explanation at [197]:
The intention has always been that these provisions in relation to victimisation can form the basis of two causes of action, civil and criminal, which is made clear by their inclusion in the definition of ‘unlawful discrimination’ in the AHRC Act (notwithstanding their framing as criminal offences).
1992 amendments to the SD Act
96 In 1992, the SD Act was amended by the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) to introduce s 47A into Part III “INQUIRIES AND CIVIL PROCEEDINGS”. Section 47A provided:
Part applies to victimisation offences
47A. In this Part, a reference to an act that is unlawful under a provision of Part II includes a reference to an act that is an offence under section 94.
97 The Explanatory Memorandum for the 1992 amendment stated:
New section 47A - Part applies to victimisation offences. This provision will allow a person who is the victim of action which may amount to an offence under section 94 of the Act to be able to lodge a complaint with the Commission which will then be dealt with in the usual way. This will not affect any criminal proceedings that may be undertaken under section 94.
98 Sections 47A and 115 were repealed with effect on 13 April 2000 by the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) (HRL Amendment Act). This was in part in response to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10. Other than s 48 of the SD Act, all of Part III of the SD Act concerning enquiries and civil proceedings was repealed. The provisions dealing with enquiries and complaint handling in each of the federal discrimination laws were consolidated and incorporated into the HREOCA, later renamed the AHRC Act. These were significant amendments and provided for “terminated complaints” to be heard and determined by the Court or the then Federal Magistrates Court.
99 A provision akin to s 47A of the SD Act was not reproduced in the AHRC Act by the amendments brought about by the HRL Amendment Act in 2000. The respondent submits that the repeal of s 47A and the absence of any provision making victimisation “unlawful” is a material consideration in approaching the proper construction of the SD ACT whether s 94 which operates as an offence, is capable of also proscribing “unlawful” conduct.
100 The HRL Amendment Act amendments also introduced a s 49B into the HREOCA. Section 49B in the AHRC Act now provides:
The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC.
101 The AHRC Act does not confer jurisdiction with respect to criminal matters. The effect of Part IIB, Division 2 means the Court exercises jurisdiction in the terms conferred by the AHRC Act. The Court has no jurisdiction to determine a claim, unless and until a complaint has been lodged and terminated by the AHRC Act (see s 46PO(1) of the AHRC Act).
102 Part IIB is concerned with “Redress for unlawful discrimination”. Part IIB sets up a scheme which enables a person to make a complaint to the Commission about “unlawful discrimination”. As noted above, s 3(1) of the AHRC Act relevantly defines “unlawful discrimination” as any acts, omissions or practices that are unlawful under Pt II of the SD ACT and includes any conduct that is an offence under s 94 of the SD ACT (see s 3(1)(f)).
2021 amendments to the SD Act
103 The absence of an express provision conferring jurisdiction on the Court to deal with victimisation was addressed in the AHRC’s Respect@Work: Sexual Harassment National Inquiry Report (2020) (Respect@Work Report, Australian Human Rights Commission, Sydney, 2020) (Respect@Work Report) released on 5 March 2020. The Sex Discrimination Commissioner recommended the AHRC Act be amended to “make explicit that any conduct that is an offence under section 94 of the SD Act can form the basis for a civil action for unlawful discrimination”: Respect@Work Report, Recommendation 21, p 45; see also pp 490-6.
104 On 8 April 2021, the Commonwealth Government released its response and said it would agree to the recommendation and consider amendments to the AHRC Act to make explicit that any conduct that is an offence under s 94 of the SD Act can form the basis of a civil action for unlawful discrimination: Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (8 April 2021) p 13, 15.
105 On 24 June 2021, the SD 2021 Amendment Bill was introduced to the House of Representatives. The SD 2021 Amendment Bill provided for the introduction of a new “Part II, Division 5 Victimisation” in the SD Act which would include a new s 47A in these terms:
It is unlawful for a person to commit an act of victimisation against another person.
106 The Explanatory Memorandum to the SD 2021 Amendment Bill (SD 2021 Amendment Bill EM) stated at [18] that the amendments to be introduced to the SD Act were intended to:
clarify that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SD Act. This amendment responds to case law which has created uncertainty as to whether a civil complaint can be made for victimising conduct, as identified in the Respect@Work Report. The effect of the amendment would be to clarify the existing position under the legislation, which has become unclear in response to judicial comments, that victimisation can form the basis of a civil action for unlawful discrimination.
[Footnotes omitted.]
107 The SD 2021 Amendment Bill EM noted at [190] that:
Prior to 2011, the case law held that subsection 94(1) of the SD Act could give rise to both civil and/or criminal proceedings. This was because the definition of “unlawful discrimination” used in section 46PO of the AHRC Act, which provides the mechanism for a person to initiate civil proceedings under the SD Act, specifically captured conduct that was covered by subsection 94(1) of the SD Act.
108 Also relevant for present purposes, are the following statements in the SD 2021 Amendment Bill EM that were made in the context of the explanation of the transitional provisions applicable to the new victimisation provision to be inserted into the SD Act (s 47A), in particular the rationale for the retrospective operation of s 47A:
215. As the existing victimisation provision in the SD Act (and all other Commonwealth anti-discrimination Acts) was always intended to provide the basis of civil victimisation claims - through the operation of the definition of ‘unlawful discrimination’ in the AHRC Act - the new civil victimisation provision will be retrospective in operation. … It is appropriate for this provision to apply for conduct that has already occurred given it is confirming the existing civil jurisdiction of section 94 and not introducing a new form of liability.
…
217. Subsection (1) of item 89 provides that despite the amendments this Bill would make to the definition of ‘unlawful discrimination’ in the AHRC Act, paragraph (f) of the definition (which lists section 94 of the SD Act, being the existing victimisation provision) will continue to have effect in relation to victimising conduct engaged in prior to commencement of this Bill, as if it were not amended.
218. The effect of subsection (1) of item 89 would be to preserve the existing meaning of ‘unlawful discrimination’ in the AHRC Act for the purposes of complaints concerning victimising conduct engaged in prior to commencement of this Bill. This will enable the AHRC to continue to handle a victimisation complaint as if it relates to conduct that is unlawful under existing section 94 of the SD Act (unless the President decides to deal with it as a complaint of victimisation that relates to the new victimisation subsection of the SD Act, subsection 47A(1) - see discussion about subsection (3) of item 89 below), or enable the complainant to proceed to the FC or FCC with the complaint.
109 On 2 September 2021, the SD 2021 Amendment Bill was passed.
Relevant authorities
110 In Penhall-Jones v State of NSW [2007] FCA 925 at [6], Buchanan J found that s 46PO of the HREOCA (as the AHRC Act was then known) provided the source of the jurisdiction to advance a victimisation claim under s 42 of the Disability Discrimination Act 1992 (Cth) in the Federal Magistrates Court. His Honour concluded at [10]:
Accordingly the Federal Magistrates Court has power to deal with an application alleging victimisation under the Act if a complaint to that effect is terminated under s 46PH of the HREOC Act. Such proceedings are civil proceedings. They are to be distinguished from proceedings for an offence brought directly under s 42 of the Act (see O’Connor v Ross (No 1) [2002] FMCA 210 at [11]).
111 In O’Connor v Ross (No 1) [2002] FMCA 210, Driver FM rejected an application to strike out a claim of victimisation contrary to s 42 of the Disability Discrimination Act 1992 (Cth). His Honour explained at [11]:
The respondents properly objected to the assertion in the original application that they had been guilty of criminal offences. The jurisdiction of this Court is to deal with complaints of discrimination that HREOC has been unable to resolve. The jurisdiction of this Court does not extend to the hearing of charges for alleged offences against the DDA or the HREOC Act. It was for that reason that I ordered that the application be amended to delete reference to an offence. That has been done. Mr Abaza submits that the amended application remains objectionable because it continues to assert victimisation contrary to either or both of s.42 of the DDA and s.26 of the HREOC Act. This objection indicates a partial misunderstanding. The DDA provides that it is an offence for a person to commit an act of victimisation. Where victimisation is dealt with as an offence, it will be prosecuted by the Director of Public Prosecutions in a court of competent jurisdiction other than this Court. However, a person may also make a complaint of victimisation to HREOC which the Commission will attempt to resolve by conciliation. Where conciliation is unsuccessful, the matter will then be referred for hearing by this Court or the Federal Court if application is made. Section 3(1) of the HREOC Act defines unlawful discrimination as acts, omissions or practices that are unlawful under Part 2 of the DDA and specifically includes any conduct that is an offence under Division 4 of Part 2 of the DDA. It follows that the applicant was entitled to make a complaint of victimisation to HREOC and that this Court has jurisdiction to consider the claim in respect of victimisation where HREOC has been unable to resolve the complaint by conciliation and the President has issued a notice of termination. This Court has dealt with such claims on a number of occasions: Tadawan v State of South Australia [2001] FMCA 25; Aleksovski v AAA [2002] FMCA 81; and Font v Paspaley Pearls & Ors [2002] FMCA 142. I add, for completeness, that my conclusions on this issue have taken into account s.125 of the DDA. The applicant’s right of civil action derives from the HREOC Act, not the DDA.
112 In Dye FCA, Katzmann J rejected an amendment to a pleading to allege that conduct that amounted to a breach of s 94 of the SD Act also gave rise to a common law cause of action. Her Honour concluded at [78]:
… the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. In my view it is an exclusive one.
113 Her Honour’s conclusion was upheld on appeal in Dye FCAFC. The Full Court stated at [70]-[71]:
70 The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act. … She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act 1984 (Cth). Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s94 of the Sex Discrimination Act 1984 (Cth). As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3). In arriving at this conclusion her Honour applied Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at 362-363 [20], 366 [31]-[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
71 The primary judge was correct to have rejected this amendment because Re East [1998] HCA 73; 196 CLR 354 made it unarguable. The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act: Re East 196 CLR at 364- 365 [24]-[25]. Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act 1984 (Cth). That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act 1984 (Cth), creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. Neither the AHRC Act nor the Sex Discrimination Act 1984 (Cth) create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act: Re East [1998] HCA 73; 196 CLR 354. It follows that the primary judge was correct to have rejected this proposed amendment to par 75.
114 A different view as to the jurisdiction of the Court to deal with a civil claim of victimisation under s 94 of the SD Act was expressed by Gray J in Walker v Cormack (2011) 196 FCR 574 (Cormack); [2011] FCA 861 at [41]:
The specific provisions permitting a complaint of victimisation (but not in relation to advertising) to be made to HREOC, coupled with the provisions of s 46PO(1) of the Human Rights Act, permitting an application alleging unlawful discrimination, following the termination of a complaint, suggest that Parliament was contemplating that victimisation might also be dealt with as a civil matter. This would be an unusual situation. It would give rise to the possibility that a litigant dissatisfied with the result of a civil proceeding in relation to alleged victimisation might then bring a criminal prosecution. This possibility would inhibit the ability of the alleged victimiser to give evidence in the civil proceedings, because of the possibility that he or she might be giving self-incriminatory evidence that could be used against him or her in a later criminal trial. For these reasons, it may be that, despite the use of the phrase “unlawful discrimination” in s 46PO(1), coupled with the definition of that term in s 3(1) of the Human Rights Act, victimisation cannot be the subject of a civil proceeding. The conferral only of civil jurisdiction might amount to a contrary intention, to which the opening words of s 3(1) refer, so that the meaning of “unlawful discrimination” is to be construed in a more restrictive way in s 46PO(1). Again, these issues were not able to be fully explored.
115 The view expressed by Gray J, however, was obiter dicta because his Honour agreed with the Federal Magistrate that the reason for the applicant’s exclusion from an all-female exercise class was in response to his inappropriate behaviour, not in response to his complaint of discrimination: Cormack at [24] and [46]. Moreover, the view was expressed tentatively (“it may be that”), the question of whether a civil action was available for victimisation by reason of ss 3(1) and 46PO(1) of the HREOCA was not raised by the parties, and the decisions of Katzmann J in Dye FCA and the Full Court in Dye FCAFC were not addressed.
116 A more definitive view that the HREOCA did not convert victimisation offence provisions into civil causes of action was expressed by Gray J in the Full Court in Walker v State of Victoria [2012] FCAFC 38 (Walker). Gray J (with Reeves J agreeing at [167]) stated at [99]:
It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37] – [41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether “conduct that is an offence” under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.
117 Again, the statement by Gray J was obiter dicta. The Full Court was addressing whether the trial judge had jurisdiction to deal with victimisation as a criminal offence. It was not being asked to determine if the trial judge had jurisdiction to deal with victimisation as a civil case. Further, it would appear that their Honours were not referred to the earlier decision of the Full Court in Dye FCAFC.
118 The Full Court in Chen v Monash University (2016) 244 FCR 424; [2016] FCAFC 66 (Chen) (Barker, Davies and Markovic JJ), endorsed the views expressed by Gray J in Walker concerning the absence of any civil jurisdiction to deal with victimisation offences in discrimination legislation. Their Honours stated at [121]:
Section 49B of the AHRC Act confers on this Court and the Federal Circuit Court of Australia (Federal Circuit Court) concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC and, in conferring jurisdiction on this Court in relation to any matter arising under any laws made by the Commonwealth Parliament, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) expressly excludes “a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. While a claim of victimisation can be made to the AHRC it seems that it cannot, based on the operation of these sections, be made to this Court.
119 After setting out the statement by Gray J in Walker at [99], their Honours then stated at [123]-[124]:
123 The primary judge addressed this issue at [10] to [11] of his judgment. In doing so he observed that the applicant accepted the Court could not entertain claims of victimisation because the Court has no jurisdiction to deal with a claim that creates a criminal offence. At the election of the applicant and, without opposition from the respondents, the allegations that would otherwise have made up the applicant’s claim of victimisation were dealt with as sex discrimination claims which formed part of a course of conduct on the part of the first respondent. There is no appealable error in the approach of the primary judge to this issue. He properly found that there was no jurisdiction in this Court to hear a claim which amounts to a criminal offence and made reference to the authority that was binding on him: Walker v Victoria. The applicant was permitted to lead evidence in relation to the matters that she said amounted to victimisation as part of her sex discrimination claims.
124 The applicant relies on Alexander v Cappello, a decision of Judge Driver in the Federal Circuit Court, in which Judge Driver made a finding that a claim of victimisation pursuant to s 94 of the SD Act had been established. Although Judge Driver refers to the judgment of Gray J in Walker v Victoria, he did not consider the issue of whether the Federal Circuit Court had jurisdiction to consider a claim for victimisation pursuant to s 94 of the SD Act. We assume the issue was not raised and his attention was not drawn to the relevant remarks of Gray J on that issue in Walker v Victoria. In any event, Alexander v Cappello was not binding on the primary judge and, if it was brought to his attention, he properly did not follow it.
120 The Full Court’s attention does not appear to have been drawn to the earlier decision of the Full Court in Dye FCAFC and again the statements in Chen at [121] to [124] were strictly only obiter dicta. The Full Court was considering whether it had an implied power, in the interests of justice, to permit a discontinued appeal to be reinstated. The Court concluded at [54] that there had been no abuse of process, the decision to discontinue had been a deliberate and informed decision by the applicant and therefore the implied power to prevent an abuse of the processes of the Court was not enlivened. Their Honours made the statements at [121] to [124] in the course of concluding that, “[f]urther, and in any event” the appellant’s prospects for success in the appeal were so low that it would not be appropriate to exercise the power in the applicant’s favour.
121 Further, it is relevant to note that at first instance, as explained in Chen at [123], the applicant’s victimisation claims were dealt with as sex discrimination claims that formed part of a course of conduct of the first respondent.
122 In Winters v Fogarty [2017] FCA 51, Bromberg J declined to strike out a claim of victimisation based on the proposition that the Court lacked jurisdiction to deal with it. After referring to the judgments of the Full Court in Chen and Walker, his Honour then stated at [33]-[34]:
33 In Chen v Birbilis [2016] FCA 661, North J, on a summary judgment application, followed the Full Court in Chen ([10]–[11]). But with respect to his Honour, I do not consider that I am bound by the Full Court’s judgment in Chen because what was there said was obiter. Nevertheless, it is obiter from a Full Court and I would have followed it had the Full Court in Dye not made the observations to which I have referred. It is not apparent that either North J or the Full Court in Chen were taken to Dye. Nor, given that in each case Ms Chen was unrepresented, did North J, Tracey J or the Full Court have the benefit of fulsome argument on the point. Equally, the Full Court in Dye did not have the benefit of the observations made by Gray J in Walker or those of the Full Court in Chen.
34 In the circumstances, I am not persuaded that there is no reasonable question to be tried as to the Court’s jurisdiction and that, on the basis of a lack of jurisdiction, Ms Winters has no reasonable cause of action. Additionally, without being critical of the parties, I am of the view that the issues underlying the conflicting authorities to which I have referred were not fully explored at the hearing of the interlocutory application, and would benefit from more fulsome argument at final hearing. For those reasons, I consider that the challenge made to the Court’s jurisdiction is not a sufficient basis for striking out [134]–[148] of the Statement of Claim in VID 323.
123 In both Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575 at [16] (White J) and Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [138] (Abraham J) first instance judges concluded that, on the state of the authorities, there was a “live issue” as to the Court’s jurisdiction to hear and determine a claim of victimisation and that a decision of the Full Court would be necessary for the issue to be authoritatively determined.
124 Similar statements as to the present state of the authorities were made in Troupoulos v Journey Lawyers Pty Ltd [2019] FCA 436. Justice Collier stated at [319]:
I note that s 3 of the AHRC Act defines unlawful discrimination as including conduct which is an offence under Div 4 of Pt 2 of the DD Act, which includes the offence of victimisation, and that if a complaint is terminated by the Commission under s 46PH of the AHRC Act then proceedings may be brought pursuant to s 46PO of the AHRC Act (as occurred here). I agree with the views of Bromberg J and White J that there is a live issue whether the Federal Court can entertain a civil claim of victimisation under the DD Act notwithstanding that s 42 provides that it is a criminal offence. Notwithstanding the inconclusive state of Full Court authority on this point, for the purposes of the present application, I am prepared to accept that the Court does have the jurisdiction alleged by Mr Tropoulos and can consider whether Mr Tropoulos has a civil action against Journey Lawyers for victimisation under the DD Act.
Submissions
125 The respondent submits that first, the Court has no jurisdiction to determine whether the respondent has committed offences described by s 94(1) of the SD Act and second, the Court has no power to make a declaration that the respondent has committed an offence.
126 Both submissions are made on the premise that the applicant is alleging in the POC that the respondent has committed an offence and that the applicant is seeking a declaration to that effect.
127 The respondent relies on the reasoning of Gray J in Cormack and Walker (followed in Chen) in support of his submission that the Court cannot construe the definition of unlawful discrimination in s 3(1)(f) of the AHRC Act to confer criminal jurisdiction on the Court with respect to s 94(1) of the SD Act, which is exclusively an offence provision. He submits that the s 3(1) definition cannot create a civil cause of action under s 94(1) nor confer jurisdiction on this Court to determine whether an offence under the SD Act has been committed.
128 The respondent submits that the absence of jurisdiction with respect to s 94 offences is demonstrated by the statements in the SD 2021 Amendment Bill EM and the amendments to the SD Act. He submits that the amendments:
Demonstrate an intention to expressly include in the SDA a provision that would achieve the purpose of making ‘victimising conduct’ unlawful. It highlights the effect of the repeal of the former s 47A of the SDA.
129 In the context of the authorities referred to above, the applicant advances the following principal submissions in support of her contention that the Court has jurisdiction to deal with allegations of victimisation as a civil claim of unlawful discrimination.
130 First, it is not alleged in the POC that the respondent has committed an offence. Rather, the claim that is made is that the respondent committed an act of victimisation contrary to s 94(1) of the SD Act, so as to give rise to civil remedies.
131 Second, the Full Court decisions in Walker and Chen do not mandate a conclusion that the Court lacks jurisdiction to hear a victimisation claim.
132 Third, civil proceedings may involve determining whether conduct that constitutes an offence has occurred.
133 Fourth, “unlawful discrimination” should not be given a more restrictive meaning where it appears in s 46PO of the AHRC Act.
134 Fifth, the legislative history supports the Court’s jurisdiction to deal with civil claims of victimisation.
135 Sixth, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) does not indicate that there was previously no jurisdiction to deal with a civil claim of victimisation.
136 Seventh, the retrospective operation of the new s 47A in the SD Act means that it would be open to the applicant to amend her POC to rely in the alternative on the same conduct as giving rise to a contravention of s 47A.
Consideration
137 Contrary to the submissions of the respondent, the applicant is not alleging in the POC that the respondent has committed an offence and nor is the applicant seeking a declaration to that effect. The applicant is alleging in paragraphs 40(b) and 42(b) of the POC that the respondent had “committed an act of victimisation” against her contrary to s 94(1) of the Act having regard to the conduct alleged in paragraphs 38(a) and 38(b), respectively, of the POC. The relief sought in the FAOA is to similar effect, namely a declaration that the respondent has “committed acts of victimisation against her in contravention of section 94 of the [SD Act]”.
138 In truth, the contention advanced by the respondent is not that the applicant is seeking to pursue a criminal prosecution and obtain declarations that offences have been committed. Rather, the contention is that the definition of unlawful discrimination in s 3(1) of the AHRC Act cannot create any concurrent civil cause of action for an offence under s 94(1) of the SD Act.
139 Section 3(1) of the AHRC Act, relevantly in this context, provides that “unlawful discrimination” includes “any conduct that is an offence under”, inter alia, “section 94 of the [SD Act]”. It directs attention to the “conduct” constituting the offence and provides that that conduct is “unlawful discrimination”. It is the conduct giving rise to the offence, not the offence itself, that is the unlawful discrimination.
140 I am satisfied that it is reasonably arguable that s 3(1) proceeds on the presumption that the same conduct might give rise to, subject to proof to the requisite standard, both civil and criminal liability.
141 The reasoning of Gray J in Cormack and Walker, however, was founded on the proposition that the legislature could not have intended that the same provision might give rise to both a criminal offence and a civil cause of action.
142 With respect, that reasoning is questionable. In the exercise of its civil jurisdiction the Court has been required to determine, to a civil standard of proof, whether a set of facts exist which if proved to a criminal standard would constitute an offence. By way of example, many provisions in the Corporations Act 2001 (Cth), including 1041A, 1041B, 1041E, and more generally by reason of the combined operation of s 1311 and Schedule 3, can give rise to both civil proceedings and criminal prosecutions. As the Full Court, sitting at first instance, explained in Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (2017) 251 FCR 448; [2017] FCAFC 100 (Allsop CJ, Middleton and Bromwich JJ) at [2]:
An alleged breach of either s 1041A or s 1041B may be made the subject of criminal proceedings by reason of the operation of s 1311 and the application of the balance of Part 9.4 of the Corporations Act. Such an alleged breach may also be made the subject of civil proceedings by reason of s 1317E and the application of the balance of Part 9.4B. In some circumstances, both criminal and civil proceedings may take place: see ss 1317M, 1317N and 1317P Relevantly for present purposes, the relief sought by ASIC includes declarations of contravention under s 1317E and pecuniary penalties flowing from such declarations under s 1317G(1A). No allegation is made by ASIC in these proceedings that the defendants committed a criminal offence. There are no criminal proceedings on foot.
143 Similarly, the cartel provisions in the Competition and Consumer Act 2010 (Cth) provide parallel civil prohibitions and criminal offences if a corporation makes or gives effect to a cartel provision in a contract, arrangement or understanding: see ss 45AF(1) and 45AG(1) (criminal prosecutions) and ss 45AJ and 45AK (civil proceedings).
144 Contrary to the positon taken by the respondent, I consider that it is reasonably arguable that the concurrent civil prohibition and the criminal offence do not have to be found in the same statute. The question will ultimately, in any particular circumstance, be a question of statutory construction. The explanation of the rationale for the retrospective operation of s 47A in the extracts from the 2021 SD Amendment Bill referred to above would appear to be consistent with a legislative intention that the definition of unlawful discrimination in s 3(1) was intended to provide a civil cause of action in respect of conduct that would otherwise constitute an offence under s 94(1) of the SD Act.
145 Moreover, as explained above, I am satisfied that the reasoning in Cormack, Walker and Chen was obiter dicta and expressed as relatively tentative views.
146 Further, and in any event, in the light of the conflicting statements in the decisions of the Full Court in Dye FCAFC, Walker and Chen of the efficacy of the definition of unlawful discrimination in s 3(1) of the AHRC Act to create a civil cause of action for conduct that would otherwise constitute an offence under s 94(1) of the SD Act, I am not satisfied that it is possible to conclude that such a civil cause of action would have no reasonable prospects of success.
147 Given the extent of the controversy as to whether the Court has jurisdiction to hear and determine a claim of victimisation that is alleged to have occurred prior to the 2021 amendments to the SD Act, I do not consider that this is an appropriate matter to determine on an interlocutory basis. The preferable course is that the controversy and all other issues be determined at the same time in order to avoid a potential proliferation of sequential appeals that would be antithetical to the just and efficient resolution of the proceedings in a timely manner consistent with s 37M of the FCA Act.
DO THE POC DISCLOSE ANY ARGUABLE CAUSE OF ACTION
Employment claims are not available
Submissions
148 The respondent advances the following overarching submissions in support of his contention that the POC does not disclose any arguable cause of action.
149 First, simply substituting the specific employment provisions in the SD Act (s 14(2) and s 28B) for other provisions (s 26, s 28G(2) and s 28L) does not overcome the applicant’s fundamental problem that the claim against her employer, the Commonwealth, cannot proceed, given the judgment of Lee J in Leach v Commonwealth of Australia [2021] FCA 158 and given the respondent, at the time of the impugned conduct, was not subject to Part II of the SD Act.
150 Second, the inapplicability of s 28B cannot be circumvented by seeking to rely on general but inapplicable provisions in the SD Act such as s 28G(2) and s 28L. The respondent submits that, as a matter of construction, the principle of the maxim generalia specialibus non derogant applies to when and how the various ways sexual harassment will be unlawful under ss 28B to 28L. Where all the facts point to a specific provision applying to an employment relationship, the respondent contends it is not open to the applicant to circumvent the specific provision by seeking to rely on more general provisions.
151 Third, the “artifice” in the applicant’s case is perhaps highlighted by the very recent amendments to the SD Act which now expressly apply to members of parliament, pointing to the amendment to s 4(1) and the definition of “Commonwealth employee” to include:
(g) is a member of either House of the Parliament; or
(h) is a person employed or engaged under the Members of Parliament (Staff) Act 1984: or
(i) is a person who holds a Commonwealth judicial office
152 Fourth, the applicant’s attempt to bring a claim for sexual harassment alleging the Commonwealth was vicariously liable for the respondent’s alleged sexual harassment was not only misconceived because the respondent is not an employee or agent of the Commonwealth but also because it is a claim that was barred by the Settlement Deed. The respondent contends that if the applicant could not maintain a claim against the Commonwealth under the AHRC Act with respect to her employment, it follows she cannot seek to bring the same claim and seek compensation for the matters covered by the Settlement Deed against the respondent, because the door is closed to pursuing the Commonwealth.
153 The applicant submits that she is entitled to rely on the full range of circumstances in which sexual harassment and sex discrimination is unlawful.
154 She contends that the provisions of the SD Act that she relies upon should not be read down so that they did not apply to the respondent’s conduct because that conduct was covered by the Settlement Deed. She submits that such a finding would be contrary to the accepted principle that the discrimination legislation of the Commonwealth should be construed beneficially and not narrowly, given its purpose as remedial legislation designed to prevent discrimination: Waters and Others v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 359 (Mason CJ, Gaudron and Deane JJ agreeing), 372 (Brennan J), 394 (Dawson and Toohey JJ) and 406-407 (McHugh J); IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J).
Consideration
155 The POC and the FAOA make plain that the applicant is not seeking to advance any claims relying on the employment provisions in ss 14(2) and 28B. I consider below whether any claims now advanced by the applicant in reliance on alternative provisions in the SD Act have any reasonable prospects of success.
Pet Statement Conduct
Submissions
156 The respondent submits that the ‘Pet Statement Conduct’ does not disclose sexual harassment within the meaning of s 28A of the SD Act, the alleged words are not words of a sexual nature and there is no sexual content or reference in the words alleged.
157 The applicant submits that while the alleged words constituting the ‘Pet Statement Conduct’ might not be sexually explicit that does not preclude them from being characterised as unwelcome conduct of a sexual nature for the purposes of s 28A(1)(b) of the SD Act
Consideration
158 Section 28A(1) of the SD Act provides:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
159 As submitted by the applicant, the concept of “conduct of a sexual nature”, in the context of the relevantly identical provision in the Anti-Discrimination Act 1977 (NSW) (s 22A) was addressed by McCallum JA in Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 307 IR 443; [2021] NSWCA 147. Her Honour stated at [125]:
I agree that the appeal must fail for the reasons stated by Bell P and Payne JA. I wish only to add the following remarks in respect of ground 5(a), which challenged the correctness of the test applied by the Appeal Panel to determine whether the conduct complained of was “conduct of a sexual nature” within the meaning of s 22A of the Anti-Discrimination Act 1977. It was common ground that the poster depicting Ms Yelda was designed for the purpose of conveying a work safety message in what was established to be a male-dominated workplace. One of the arguments in support of ground 5(a) was that the depiction in that context of a woman feeling great because she lubricates could not amount to sexual harassment because its sexualised message was not “explicit”. The sexualisation of women in the workplace often isn’t. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8]- [12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.
160 In my view, whether words can be construed as being “conduct of a sexual nature” necessarily requires a consideration of the specific context in which they are spoken.
161 The ‘Pet Statement Conduct’ is described in the POC at paragraph 5 in the following terms:
In or around September 2016, in the first weeks of Ms Leach’s employment as a member of Mr Burston’s electorate office staff, Mr Burston asked Ms Leach to lunch with him, saying words to the effect of “I want to tell you something”. At the lunch, Mr Burston said to Ms Leach words to the following effect, “Don’t tell anyone, I don’t want anyone to know that you’re my pet” (referred to below as the Pet Statement Conduct).
Particulars
The lunch was at a café next door to the Belmont electorate office.
162 I am satisfied that it is reasonably arguable that, first, a statement made to a new female staff member by a male to whom she reported, in the course of a lunch at a café next door to her workplace to which he had invited her, to the effect that “Don’t tell anyone, I don’t want anyone to know that you’re my pet” was unwelcome conduct of a sexual nature, and second, a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would have been offended, humiliated or intimidated by it. I have reached that conclusion by reason of the combination of “Don’t tell anyone”, the use of the expression “you’re my pet” and the circumstances in which the statements were made, an invitation to lunch shortly after commencing work with a person to whom she reported and who held a position of significant power and authority.
163 The respondent has not established that the applicant has no reasonable prospects of success in proving that the ‘Pet Statement Conduct’ constituted sexual harassment pursuant to s 28A(1)(b) of the SD Act.
Section 28G(2)
Legislative provision
164 Section 28G(2) is directed at sexual harassment in the course of the receipt of the provision of services. It provides:
It is unlawful for a person to sexually harass another person in the course of seeking, or receiving, goods, services or facilities from that other person.
Submissions
165 The respondent submits that there is no allegation in the POC that identifies any facts or circumstances that could engage s 28G(2) of the SD Act. He submits that the applicant was an employee and not a person providing a service under a contract for services. He further submits that nothing is alleged in the POC that identifies any relevant “service” separate from the applicant discharging her duties and following directions from the respondent as an employee of the Commonwealth working in the respondent’s electorate office.
166 The applicant submits that it does not follow that, because the applicant was employed by the Commonwealth, she could not be providing services to the respondent, and nor is there any requirement that the services allegedly provided by the applicant to the respondent had to be services other than with respect to her discharging her workplace duties for the benefit of the respondent.
167 She submits that the definition of “services” in s 4 of the SD Act has a broad and non-exclusive definition and suggests that it would extend to services provided in a work setting. She relies in particular on sub-paragraph (d) of the definition, which provides that “services” include “services of the kind provided by the members of any profession or trade”.
168 The applicant further submits that discrimination legislation should be generously construed due to its remedial character, and that the word “services” therefore “includes all matters which ordinarily fall within that notion”. She relies on Rainsford v State of Victoria (2005) 144 FCR 279; [2005] FCAFC 163 at [54]-[55] (Kenny J, Hill and Finn JJ agreeing) (considering a similar definition of “services” in the Disability Discrimination Act 1992 (Cth)) and submits that whether particular activities are a service is a question of fact generally to be determined at trial.
Consideration
169 The s 28G(2) claim is pleaded in the POC in the following terms:
11. By virtue of Ms Leach’s employment as a member of Mr Burston’s electorate office staff, and Ms Leach’s performance of her duties in connection with that employment, Mr Burston was receiving services from Ms Leach for the purposes of s.28G(2) of the SD Act.
12. Each of:
(a) the Pet Statement Conduct; and
(b) the Sexual Proposition Conduct,
occurred in the course of Mr Burston receiving services from Ms Leach for the purposes of s.28G(2) of the SD Act.
13. In the premises, by engaging in each of:
(a) the Pet Statement Conduct; and
(b) the Sexual Proposition Conduct,
Mr Burston sexually harassed Ms Leach contrary to s.28G(2) of the SD Act.
170 It is readily apparent that the applicant has not sought to plead any facts in the POC that identify any relevant service provided by the applicant to the respondent independently of her duties as an employee of the Commonwealth discharging her duties in connection with that employment.
171 There is a fundamental distinction between a contract of service and a contract for services. As an employee, the applicant was subject to a contract of service. She was not an independent contractor providing services to the respondent.
172 The distinction between employment and the provision of services in the SD Act was addressed in Australian Education Union v Human Rights and Equal Opportunity Commission (1997) 80 FCR 46 at 55 (Merkel J):
Section 14 operates primarily in respect of unlawful discrimination in offering employment and in the terms and conditions of employment. In general neither activity involves the provision of “services” within s 22. It is only when one considers the concepts of denying or limiting access to “benefits associated with employment” or “subjecting an employee to any other detriment” in s 14(1)(b) and (d) respectively that a possible overlap with s 22 might occur with the consequence that certain conduct might involve a breach of both sections.
173 It is not necessary, in the circumstances, to rely on any application of the generalia specialibus non derogant maxim to conclude that by performing her duties in connection with her employment, the applicant was not providing services to the respondent. The applicant was performing her duties as an employee, not as a service provider. On one view, the Commonwealth, as her employer, may have been providing services to the respondent, that is the provision of staff to undertake office administration duties for him. However, I am satisfied that it is not reasonably arguable that the applicant was, in performing her duties in connection with her employment, providing services to the respondent.
174 The paragraphs of the POC alleging a contravention of s 28G(2) do not disclose any reasonable cause of action and should be struck out. Further, I am satisfied that any attempt to replead the allegations would be futile. The applicant was at all material times performing her duties as an employee of the Commonwealth, as a member of the respondent’s staff, and was not a person providing services to the respondent.
Section 28L
Legislative provision
175 Section 28L is directed at sexual harassment in the course of the performance of any function, exercising any power or carrying out any other responsibility under a Commonwealth law or program. It provides:
It is unlawful for a person:
(a) in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or
(b) in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;
to sexually harass another person.
176 A “Commonwealth program” is defined in s 4 of the SD Act to be:
a program conducted by or on behalf of the Commonwealth government.
177 There is no definition of a program in the SD Act. The meanings attributed to program in the Macquarie Dictionary relevantly include “a plan or policy to be followed”.
178 In Harris v Bryce and Another (1993) 41 FCR 388, Morling J concluded that an agreement between the Commonwealth, South Australian, Northern Territory and Western Australian Governments to fund a project to improve education in remote Pitjantjatjara schools was a Commonwealth program for the purposes of s 26(1) of the SD Act. His Honour stated at 397:
I see no reason to confine the term “program” within narrow limits. It has been said that anti-discrimination legislation should be liberally construed: Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 per Brennan J. And in Hough v Council of the Shire of Caboolture (1992) 39 FCR 514 Spender J was careful not to circumscribe the concept of “program” so as to limit the operation of s 26 of the Act. I think the ordinary meaning of the word extends to cover the Tri-State Agreement. The proposal initially made by the South Australian Minister for Education in 1985 was not, of itself, a program. But the steps that were taken subsequently to develop that proposal led to the making of a formal agreement between the several Governments and to the establishment of the Tri-State Management Board. The agreement of the Governments to each contribute $50,000 for the first year of the Board's operations and to provide further funding for them gave the project real substance. The decision that the Northern Territory would have responsibility for the administration of the project and the decision to call for applicants for the position of Coordinator were clear indications that the participating Governments recognised that they had embarked upon a project for the provision of education in Pitjantjatjara schools. In my opinion, that project can fairly be described as a program for the purposes of s 26(1) of the Act.
Submissions
179 The respondent submits that for the purposes of the s 28L claims the applicant does not identify the function, power or responsibility that the respondent performed under a Commonwealth law or a Commonwealth program when he said the alleged words or had lunch with the applicant.
180 The applicant submits that the Commonwealth law and program and the conduct of the respondent that occurred in the course of him performing functions, exercising powers or carrying out responsibilities under the pleaded Commonwealth law and program, namely the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’, are pleaded with sufficient particularity for the respondent to know the case he has to meet.
Consideration
181 The s 28L sexual harassment claim is pleaded in the POC in the following terms:
14. For the purposes of, and in connection with, Ms Leach’s employment as a member of Mr Burston’s electorate office staff, Mr Burston:
(a) was responsible under the MoPS Act for selecting, employing, allocating the duties to, and terminating the employment of members of his electorate office staff such as Ms Leach;
Particulars
Part IV of the MoPS Act
Determination 2016/15 regarding ‘Employment of Electorate Officers’ made by Scott Ryan, Special Minister of State under s.13(2) and s.20(2) of the MoPS Act.
Document entitled ‘Employment’ published on the Department of Finance website dealing with employment under the MoPS Act, available at https://maps.finance.gov.au/guidance/employment, a copy of which can be provided by Ms Leach’s solicitors.
(b) was responsible for ensuring that good employment practices are followed, including in relation to freedom from discrimination and harassment;
Particulars
Document entitled ‘Employment’ published on the Department of Finance website dealing with employment under the MoPS Act, available at https://maps.finance.gov.au/guidance/employment, a copy of which can be provided by Ms Leach’s solicitors.
(c) signed the employment agreement with Ms Leach on behalf of the Commonwealth and as the ‘Employer’, and was referred to in the employment agreement as the ‘Employer’;
Particulars
Employment agreement signed by Ms Leach and Mr Burston on 19 August 2016.
(d) was given various roles under the Commonwealth Members of Parliament Staff Enterprise Agreement 2016 - 2019, as the ‘employing Member’, including to waive or extend a probationary period (clause 8), to advance the salary of a staff member within their classification (clause 17), to agree part-time hours (clause 31.2) or non-standard hours (clause 31.4) and set working hours and breaks (clause 31.5), to approval leave applications (clause 37), and to direct staff to travel on official business (clause 55.1); and
(e) had, and exercised, day to day control and direction over Ms Leach’s duties.
15. The Commonwealth Government at all times relevant to Ms Leach’s employment operated a program of employing, funding and administering the employment of the staff employed by Federal Ministers, Federal office-holders, and senators and members of the House of Representatives, who are employed pursuant to the MoPS Act.
Particulars
The program is administered by the Special Minister of State under delegation from the Prime Minister, and at a day to day level is administered by a branch of the Department of Finance called ‘Ministerial and Parliamentary Services’.
16. In respect of the staff of senators and members of the House of Representatives employed as part of the program described in the preceding paragraph, the senator or member performs many of the functions of and on behalf of, and exercises many of the powers and responsibilities of, the employer, including the functions and powers of selecting, employing, allocating and directing the duties of, and terminating, the staff members.
Particulars
Ms Leach refers to and repeats the particulars at paragraph 14 above.
17. In fulfilling the roles and exercising the functions and powers set out in paragraph 14 in relation to Ms Leach’s employment as a member of Mr Burston’s electorate office staff, Mr Burston was:
(a) performing functions, or exercising powers, under a Commonwealth law, namely the MoPS Act, and/or for the purposes of a Commonwealth program, namely the program identified at paragraph 15 above; and/ or
(b) carrying out responsibilities for the administration of a Commonwealth law, namely the MoPS Act, and/or for the conduct of a Commonwealth program, namely the program identified at paragraph 15 above.
18. Each of:
(a) the Pet Statement Conduct; and
(b) the Sexual Proposition Conduct,
occurred in the course of Mr Burston performing functions, or exercising powers, under a Commonwealth law and/or for the purposes of a Commonwealth program, and/or in the course of Mr Burston carrying out responsibilities for the administration of a Commonwealth law and/or for the conduct of a Commonwealth program, for the purposes of s.28L of the SD Act.
182 I am satisfied that the pleading of the alleged s 28L contravention identifies with sufficient precision the necessary elements of the contravention to permit the respondent to understand the case it is required to meet.
183 The applicant has pleaded in the POC:
(a) a law of the Commonwealth, namely the MOPS Act (POC at [14]);
(b) the alleged functions the respondent was performing or the powers that he was exercising under the MOPS Act (POC at [14]);
(c) a Commonwealth program, namely a program of employing, funding and administering the employment of staff for Federal parliamentarians pursuant to the MOPS Act (POC at [15]);
(d) the alleged functions the respondent was performing or the powers that he was exercising for the purposes for the program of employing, funding and administering the employment of staff for Federal parliamentarians pursuant to the MOPS Act (POC at [16]); and
(e) the conduct that occurred in the course of the respondent performing those functions that is alleged to give rise to the sexual harassment, namely the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’ (POC at [6]-[8]).
184 Without expressing any view as to the strength of the contentions advanced by the applicant, I consider that it is reasonably arguable that the pleaded Commonwealth law and program and the pleaded functions and powers of the respondent in the POC are sufficient to enliven s 28L of the SD Act.
185 For the reasons advanced above, I consider that is reasonably arguable that the ‘Pet Statement Conduct’ is capable of constituting sexual harassment and the respondent did not suggest that it was reasonably arguable that the Sexual Proposition Conduct was not capable of being sexual harassment for the purposes of s 28A of the SD Act.
186 In the circumstances, I am not satisfied that the respondent has demonstrated that the s 28L cause of action has no reasonable prospects of success.
Section 26 and claims of sex discrimination
Legislative provision
187 Section 26 of the SD Act provides:
(1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
(2) This section binds the Crown in right of a State.
Submissions
188 The respondent submits that the alleged s 26 contravention suffers from the same problems as the s 28L contravention and there is no identification in the POC of why the applicant was treated less favourably than a man with respect to a particular performance of a function or the exercise of a power under a Commonwealth law or program. He submits that no male “comparator” is identified and the applicant does not identify the relevant circumstances.
189 The respondent submits that the claims for indirect sex discrimination by reference to s 5(2) of the SD Act, made in addition to direct sex discrimination, must fail because direct and indirect discrimination are mutually exclusive concepts: Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC 128 at [13]-[29] (Sklavos); Sklavos v Australasian College of Dermatologists [2016] FCA 179 at [164].
190 The respondent also submits that the claim for indirect sex discrimination is fundamentally misconceived because it fails to identify a condition, requirement or practice imposed on the applicant and all persons with respect to the performance or a function of the exercise of a power under a Commonwealth law or program.
191 The applicant submits that, in context, it is readily apparent that the less favourable treatment that is alleged is because the applicant is a woman and in her reply she clarifies that the relevant comparator is a male staff member in the respondent’s electorate office.
192 The applicant contends that the direct and indirect discriminations alleged in the POC are discrete. She submits that the direct discrimination claim is directed at the three instances of specific treatment of the applicant as constituting less favourable treatment on the basis of the sex. She submits that the indirect discrimination claim is directed at a condition or practice that was applied to the applicant in the course of him exercising the functions and powers, or carrying out his responsibilities, in relation to the applicant’s employment as a member of his electorate office.
193 The applicant further submits that her reliance on the ‘Pet Incident’, the ‘Sexual Proposition Conduct’ and the ‘Sexist Hiring Comments’ as three of the many examples that she relies upon to give rise to the alleged ‘Sexist and/or Sexually Charged Workplace’ does not mean the direct and indirect discrimination claims are the same.
Consideration
Direct s 26 claim
194 The s 26 direct discrimination claim is pleaded in the POC at paragraphs 14 to 17 and 20 to 21. I have set out above paragraphs 14 to 17 of the POC in the context of the s 28L claim. In paragraphs 20 and 21 it is alleged:
20. As a result of Mr Burston:
(a) engaging in the Pet Statement Conduct;
(b) engaging in the Sexual Proposition Conduct; and
(c) making the Sexist Hiring Comments,
Mr Burston treated Ms Leach less favourably than, in circumstances that are the same or not materially different, he would treat a male.
21. In the premises, and having regard to paragraphs 14 to 17 above, by his conduct in each of the following respects:
(a) engaging in the Pet Statement Conduct;
(b) engaging in the Sexual Proposition Conduct; and
(c) making the Sexist Hiring Comments,
Mr Burston discriminated against Ms Leach on the grounds of her sex, contrary to s.26 of the SD Act.
195 For the reasons advanced above in connection with the s 28L claim, I am satisfied that the necessary elements of the s 26 direct sex discrimination claim have been pleaded with sufficient clarity in the POC to enable the respondent to understand the case he is required to meet and that the cause of action as pleaded is reasonably arguable.
196 I consider that it is reasonably arguable that by engaging in the ‘Pet Statement Conduct’ and the ‘Sexual Proposition Conduct’ and making the ‘Sexist Hiring Comments’ the respondent was treating the applicant less favourably than a male member of the respondent’s electorate office. The relevant circumstances being persons who were staff members in the respondent’s electorate office in the course of the respondent performing functions and exercising powers under the MOPS Act and for the purpose of the program of employing, funding and administering the employment of staff for Federal parliamentarians pursuant to the MOPS Act.
Indirect s 26 claim
197 The indirect s 26 sex discrimination claim is pleaded in the POC at paragraphs 22 to 26. After pleading in paragraph 22 some 21 instances of conduct by the respondent, including the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’ and the ‘Sexist Hiring Conduct’, the applicant then alleges in paragraphs 23 to 26 that:
23. The conduct engaged in by Mr Burston that is identified in the preceding paragraph:
(a) was in each instance sexist and/or sexually charged (or sexually oriented) conduct; and
(b) taken together, meant that females working in Mr Burston’s electorate office and as part of Mr Burston’s staff were working in a sexist and sexually charged workplace.
24. Having regard to paragraphs 21 to 23, Mr Burston imposed a condition, requirement or practice on Ms Leach that in order to remain in her employment as a member of Mr Burston’s electorate office staff, she must accept and acquiesce to a sexist and sexually charged workplace.
25. The condition, requirement or practice that Ms Leach accept and acquiesce to a sexist and sexually charged workplace was a condition, requirement or practice that had, or was likely to have, the effect of disadvantaging women.
Particulars
Such a condition, requirement or practice made the workplace a less agreeable and less pleasant environment for women as compared to men, and exposed women in the workplace to unwelcome behaviour, distress, suffering, anxiety and humiliation that was not suffered by men in the workplace.
26. In the premises, by imposing such a condition, requirement or practice:
(a) Mr Burston discriminated against Ms Leach within the meaning of s.5(2) of the SD Act; and
(b) having regard to paragraphs 14 to 17 above, which Ms Leach repeats and relies upon, Mr Burston discriminated against Ms Leach contrary to s.26 of the SD Act.
198 I accept that the same conduct cannot give rise to both direct and indirect discrimination: Sklavos at [13]-[16] (Bromberg J) citing, inter alia, Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 171 (Brennan J); 184 (Dawson J); Waters at 392-3 (Dawson and Toohey JJ), 400 (McHugh J); Purvis v State of New South Wales (Department of Education and Training) and Another (2003) 217 CLR 92; [2003] HCA 62 at [185] (Gummow, Hayne and Heydon JJ).
199 I am satisfied, however, that in the current context, the conduct relied upon in paragraph 22 pf the POC as establishing the existence of the ‘Sexist and/or Sexually Charged Workplace’ extended well beyond the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’ and the ‘Sexist Hiring Comments’. The applicant does not expressly contend that the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’ or the ‘Sexist Hiring Comments’ constituted both direct and indirect discrimination. Rather, the applicant contends that each constituted direct discrimination and the requirement to work in the ‘Sexist and/or Sexually Charged Workplace’ constituted indirect discrimination.
200 Whether the inclusion of the ‘Pet Statement Conduct’, the ‘Sexual Proposition Conduct’ and the ‘Sexist Hiring Comments’ in the conduct relied upon to give rise to the existence of the ‘Sexist and/or Sexually Charged Workplace’ necessarily means that the same conduct is being relied upon to constitute both direct and indirect discrimination is a matter that cannot be determined independently of a detailed consideration of the matters alleged to give rise to existence of the ‘Sexist and/or Sexually Charged Workplace’ and should be left for trial. For present purposes I consider that it is reasonably arguable that the applicant has not sought to rely on the same conduct as constituting both direct and indirect discrimination.
201 In any event, the direct and indirect s 26 discrimination claims are also pleaded in the alternative in the POC. The claims, therefore, cannot be dismissed or struck out on the basis that direct and indirect discrimination claims are mutually exclusive.
Section 94(1) and Victimisation
Submissions
202 The respondent submits that the applicant does not plead how the applicant’s grievance about media reports was an act done by the respondent and fails to identify any alleged detriment by the mere receipt of a letter notifying the applicant that the respondent intended to bring defamation proceedings.
203 The respondent also submits that the applicant does not plead any material facts establishing the existence of a causal link between an act of the respondent and the respondent subjecting or threatening to subject a person to a detriment.
204 The applicant submits that it is not necessary in order to enliven a claim for unlawful victimisation for the allegation of discrimination to identify a specific section or part of the SD Act, it is sufficient if the allegation, however stated, would in fact be unlawful by reason of Part II of the SD Act.
205 The applicant contends that the relevant acts of the respondent were the making of denials that he had sexually harassed the applicant, not the publication of the media articles, and it was the denials that led to the damage to her reputation and distress.
206 The applicant submits that the threat of defamation proceedings made by the respondent constituted an act of victimisation under s 94 because the respondent never had any actual intention to commence proceedings, as no such proceedings were ever commenced.
207 The applicant accepts that an allegation of victimisation requires establishing a causal link between the relevant act, the making of an allegation of sexual harassment and subjecting or threatening a detriment to the person making the allegation. She submits that the facts giving rise to the respondent’s knowledge of the sexual harassment claims that gave rise to the Denials are pleaded in the POC at paragraph 30, namely the receipt of the Leach Employment Story Document and the basis for the pleading of causation is provided in the paragraph 39 of the POC, that is, that the Denials were made in response to the allegations of sexual harassment.
Consideration
208 The unlawful victimisation claim is advanced in paragraphs 28 to 42 of the POC.
209 It is first alleged in paragraphs 28 to 29 of the POC that the applicant provided two versions of the Leach Employment Story Document to the Department of Finance “[i]n or around the first half of November 2018” and “[o]n or around 7 February 2019”, respectively. It is alleged that the document included an account of the ‘Sexual Proposition Conduct’.
210 It is then alleged that the Leach Employment Story Document was provided to the respondent (POC at [30]). The respondent admits in his Defence that he received the document “on around 20 February 2019”.
211 The applicant alleges at paragraph 31 that:
The Leach Employment Story Document included an allegation that Mr Burston had engaged in sexual harassment, and thus for the purposes of s.94(2)(g) of the SD Act by preparing that Document and providing it to others Ms Leach made an allegation that Mr Burston had done an act or acts that are unlawful by reason of Part II of the SD Act.
212 At paragraphs 32 to 35, the applicant pleads that the respondent’s denials that he had sexually harassed her (Denials) were published in a series of media articles that were published between 13 February 2019 and 15 April 2019.
213 The applicant alleges at paragraph 36 that:
The Denials implied that Ms Leach was a liar and was untrustworthy, and had the potential to damage Ms Leach’s reputation. The Denials caused Ms Leach distress.
214 At paragraph 37, the applicant pleads the receipt of a letter from the respondent’s solicitors threatening the commencement of defamation proceedings seeking damages for $500,000 on the basis that she had caused sexual harassment claims about him to be published to third parties.
215 The applicant then alleges at paragraphs 38 to 42:
38. Each of:
(a) the Denials; and
(b) the Defamation Threat,
constituted Mr Burston subjecting, or threatening to subject, Ms Leach to a detriment for the purposes of s.94(2) of the SD Act.
39. The allegation in the Leach Employment Story Document that Mr Burston had engaged in sexual harassment was a substantial reason for Mr Burston making the Denials.
Particulars
The Denials responded to an allegation made by a former staff member of Mr Burston’s to the effect that the Sexual Proposition Conduct had occurred.
40. In the premises set out in the preceding paragraph, Mr Burston:
(a) made the Denials because of the allegation in the Leach Employment Story Document that Mr Burston had engaged in sexual harassment; and
(b) having regard to paragraph 38(a) above, committed an act of victimisation against Ms Leach contrary to s.94(1) of the SD Act.
41. The allegation in the Leach Employment Story Document that Mr Burston had engaged in sexual harassment was a substantial reason for Mr Burston causing the Defamation Threat to be issued to Ms Leach.
Particulars
The letter from Alexander Law dated 15 April 2019 referred expressly referred to Ms Leach having made an allegation to the effect of the Sexual Proposition Conduct, as well as expressly referring to other allegations set out in the Leach Employment Story Document.
42. In the premises set out in the preceding paragraph, Mr Burston:
(a) caused the defamation threat to be issued to Ms Leach because the allegation in the Leach Employment Story Document that Mr Burston had engaged in sexual harassment; and
(b) having regard to paragraph 38(b) above, committed an act of victimisation against Ms Hanson contrary to s.94(1) of the SD Act.
216 I am satisfied that the applicant has pleaded the necessary elements of an alleged unlawful victimisation claim, namely, the making of a claim of sexual harassment that would objectively fall within Part II of the SD Act (POC at [28] to [31]), the conduct constituting detriment, the Denials (POC at [32]-[36]) and the defamation threat (POC at [37]), and the causal connection between the making of the claim and the detriment (POC at [39] to [42]).
217 The determination of whether the applicant has established a causal relationship between the Leach Employment Story Document and the publication of the Denials given the admission of the receipt of the document only “on around 20 February 2019” and the first publication of the Denials on 13 February 2019, is likely to be a significant factually contested issue. Further, the determination of whether the respondent had any genuine intention to commence defamation proceedings seeking $500,000 in damages against the respondent is equally likely to be a significant factually contested issue.
218 In the circumstances, I am satisfied that it is not appropriate to determine the unlawful victimisation claim on a summary dismissal/strike out application prior to trial.
DISPOSITION
219 The cause of action alleging a contravention of s 28G(2) of the SD Act is to be summarily dismissed and paragraphs 11 to 13 of the POC are to be struck out. The respondent’s interlocutory application dated 14 September 2021 is to be otherwise dismissed.
220 The respondent has only been partially successful. The parties will be given an opportunity to advance short written submissions on costs in the event that costs orders cannot be agreed.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. |
Associate:
