FEDERAL COURT OF AUSTRALIA

Hanson v Burston [2022] FCA 1234

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and within 14 days or such longer time as may be sought and allowed, submit agreed or competing draft orders to give effect to the reasons for judgment and for the future conduct of the proceeding, including any necessary case management hearing.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Ms Pauline Hanson, commenced this proceeding against the respondent, Mr Brian Burston, on 3 November 2020, by an originating application and subsequent points of claim. Ms Hanson is an ongoing and longstanding Senator for Queensland and leader of the Pauline Hanson One Nation Party (One Nation or PHON). Mr Burston is a former Senator for New South Wales, originally elected on the One Nation Party ticket in New South Wales. He was a senator from the 2 July 2016 election to 30 June 2019, having lost the 2019 election. The conduct alleged by Ms Hanson took place during that period and in that political setting. Mr Burston seeks summary judgment or a strike out of Ms Hanson’s pleadings, as detailed below.

2    Ms Hanson, in a complaint to the Australian Human Rights Commission (AHRC), alleged that she was the subject of victimisation by Mr Burston within the meaning of s 94 of the Sex Discrimination Act 1984 (Cth) (SD Act), for making or trying to make allegations against him of sex discrimination and sexual harassment of female staff. That complaint was terminated upon there being no prospect of a successful conciliation. Ms Hanson then commenced this proceeding. The originating application annexes a copy of the terminated complaint that she made to the AHRC, enabling it to be litigated in this Court, subject to the limitations of the statutory scheme under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

3    The points of claim filed on 22 January 2021 have since been replaced by amended points of claim dated 1 April 2021 (APOC). Ms Hanson seeks, via a combination of the originating application and the APOC, an apology (described in the originating application as written and non-confidential), the cessation of all alleged victimising conduct, compensation (including economic loss, non-economic loss, and aggravated damages) and costs.

4    A proposed further amended points of claim document (Proposed FAPOC) has also been served on Mr Burston by Ms Hanson, but not consented to being filed in light of this interlocutory application. The only amendment proposed by the Proposed FAPOC is to add limited additional particulars of how the allegations of sexual harassment of staff that Ms Hanson made against Mr Burston, which she alleges gave rise to victimising conduct by him, were allegations of conduct that was unlawful by reason of particular provisions of Part II of the SD Act. I have therefore determined this application upon the basis that the APOC is to be read with the additional particulars provided via the service of the Proposed FAPOC.

5    The AHRC was formerly known as the Human Rights and Equal Opportunity Commission (HREOC), and the AHRC Act was formerly titled the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). Both the HREOC and the HREOC Act feature in the authorities and in the legislative history considered below.

Interlocutory application for summary judgment or strike out

6    By an interlocutory application, Mr Burston seeks summary judgment for all, or alternatively parts of, Ms Hanson’s claim, and in the alternative to have parts of the APOC struck out. As developed in these reasons, and as opposed by Ms Hanson, Mr Burston asserts that:

(a)    this Court has no jurisdiction to determine whether he contravened s 94(1) of the SD Act and no power to declare that he has done so (Jurisdictional Issue);

(b)    by reason of the operation of s 46PO(3) of the AHRC Act, this Court has no jurisdiction with respect to some of the claims pleaded in the APOC because they were not included in her complaint to the AHRC (Section 46PO(3) Issue); and

(c)    Ms Hanson has no reasonable prospects of success in relation to her entire claim in her originating application and APOC (Reasonable Prospects Issue).

7    As part of his interlocutory application, Mr Burston also submitted that this Court has no power under s 46PO(4) of the AHRC Act to order the termination of Mr Burston’s defamation proceedings in this Court, being proceeding NSD 652 of 2020. However, as Ms Hanson’s position is not to seek an order terminating Mr Burston’s defamation proceedings, this issue is not required to be determined.

8    For the reasons that follow, I have decided that:

(a)    this Court has jurisdiction to determine a civil case of victimisation under s 94(1) of the SD Act, and accordingly Mr Burston’s application for summary dismissal upon the basis of there being no jurisdiction to do so must fail;

(b)    Ms Hanson’s pleadings relating to:

(i)    a text message sent by Ms Hanson to Mr Burston’s wife, Mrs Roslyn Burston, at about 6.24 pm on 14 February 2019;

(ii)    the publication of Mr Burston’s denial of the allegations against him and his counter-allegations against Ms Hanson on News Online (news.com.au), the Sydney Morning Herald and the ABC; and

(iii)    the complaints made by Mr Burston to the AHRC, alleging sexual harassment and victimisation by Ms Hanson,

are summarily dismissed as this Court has no jurisdiction under s 46PO(3) of the AHRC Act to determine them as they were not included in her terminated complaint to the AHRC.

(c)    Ms Hanson’s pleadings are otherwise sufficiently reasonably arguable, subject to those struck out but granted leave to re-plead, and the test for summary judgment is not met.

Principles as to summary dismissal and strike out

9    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) allows for a proceeding to be summarily dismissed in whole or in part if the Court is satisfied that the applicant has no reasonable prospects of successfully prosecuting it, or part of it. By the express terms of s 31A(3), a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success.

10    The authorities dealing with s 31A are well known and the principles are not in dispute except as to their application to this case. The leading authority is Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [49]-[60], especially at [52]-[53]; see also Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [121]-[132] and Houston v State of New South Wales (No 2) [2021] FCA 637 at [5].

11    While Mr Burston bears the onus of establishing that summary judgment should be granted, even under the prior more stringent test for summary judgment before the enactment of s 31A, a fatal legal flaw in a case may render it “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 130.

12    As to the alternative relief of striking out the pleadings or part of them, the discretion to do so on the basis advanced by Mr Burston is to be exercised sparingly, noting that if this point is reached, Ms Hanson has already furnished the Proposed FAPOC, seeking to address aspects of what is said to be defective in her existing APOC. While it is commonplace to grant a party found to have a defective pleading leave to re-plead, it is for the moving party to justify the exercise of the discretion allowing that to take place.

13    Ms Hanson argues that any deficiency in the pleadings in the APOC are of form rather than substance, and that Mr Burston was sufficiently aware of the case to be met by means of the particulars provided in both the APOC and Proposed FAPOC. She relies upon the observations of Lockhart J in Australian Competition and Consumer Competition v Golden West Network Pty Ltd [1997] FCA 792 at p.8:

It is important that I say something about motions to strike out statements of claim in the conduct of modern litigation. Today, courts are playing an increasingly active role in case management. Motions to strike out pleadings are matters of practice and procedure. In its role of case management, courts devise various procedures to overcome deficiencies in pleadings other than by simply ordering that the offending paragraphs be struck out. Sometimes it is appropriate to strike them out, sometimes not. On some occasions it is better for the court to direct the applicant, whose statement of claim is under challenge, to furnish particulars or to file and serve affidavits to show that there really are facts which can be proved and which, if proved, would support the general statements made in the statement of claim. This is not, of course, intended to be a substitute for a defective pleading in every case because, as is well known, pleadings must assert basic or constitutive facts, not the evidence by which they are to be proved. But case management is a sensible and flexible thing. It must not be unduly circumscribed.

14    The above paragraph from Golden West Network was quoted and cited with approval in Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 at [7]. Golden West Network was also cited with approval in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corp Ltd (No 2) [2014] FCA 593 at [18], but not applied because the further particulars provided did not cure the deficiency and the paragraphs in question were therefore struck out.

15    Mr Burston contends that there is no utility in granting Ms Hanson leave to re-plead because that could not confer jurisdiction which he contends does not exist arising from the terminated complaint, or cure the deficiencies he alleges by pleading beyond what is allowed by s 46PO(3), or overcome the fundamental defects he asserts with the content of the case she seeks to bring, taken at its highest.

Chronology of key events

16    On 8 April 2020, Ms Hanson, via her solicitors, lodged a complaint against Mr Burston with the AHRC. She alleged Mr Burston committed six acts of victimisation towards her on 13 February 2019, 14 February 2019 and 16 October 2019, contrary to s 94(1) of the SD Act. This was detailed in a letter from her solicitors dated 8 April 2020 and annexed to the AHRC complaint form (solicitors’ complaint letter). In the solicitors’ complaint letter, Ms Hanson alleged that each of Mr Burston’s asserted six acts of victimisation towards her were done because she made four allegations about him, which she claimed engaged s 94(2)(g) of the SD Act, the terms of which are detailed below. She alleged that all of these six acts of victimisation subjected her to the detriments of distress, reputational damage, and caused significant costs, time and stress. Ms Hanson also alleged the Commonwealth of Australia permitted Mr Burston to victimise her in contravention of s 105 of the SD Act.

17    The solicitors’ complaint letter detailed the allegations made and the alleged resultant victimisation as follows (using the definitions in that letter):

(a)    four complaints made by Ms Hanson, or arguably implicitly made on her behalf, about sexual harassment allegedly perpetrated by Mr Burston by way of:

(i)    a statement in the Senate on 12 February 2019, relevantly making allegations of sexual harassment and unfair dismissal by Mr Burston towards his staff (First Complaint) ;

(ii)    via Mr Ashby, a post on Ms Hanson’s Facebook page later the same night, 12 February 2019, with a video of the statement in the Senate and with accompanying text, relevantly making allegations of sexual harassment and unfair dismissal by Mr Burston towards his staff (Second Complaint);

(iii)    a letter sent to the President of the Senate on 15 February 2019 making allegations of sexual harassment and unfair dismissal by Mr Burston towards his staff (Third Complaint); and

(iv)    a television interview on the Channel 9 Today Show on 29 March 2019, during which she referred to her chief of staff, Mr James Ashby, bringing to the President’s attention allegations of sexual abuse and harassment with a female staffer in Mr Burston’s office (Fourth Complaint);

(b)    six instances of what was alleged to be victimisation, arising from the above four complaints, that Mr Burston had:

(i)    smeared blood on the door of her office on the night of 13 February 2019 (Blood Smearing Incident);

(ii)    described the allegations in the First Complaint and the Second Complaint as “bullshit” and “this is a woman scorned” in a 14 February 2019 newspaper article in the Daily Telegraph (Daily Telegraph Denial);

(iii)    alleged in the same Daily Telegraph newspaper article that he left One Nation in part because of inappropriate behaviour by Ms Hanson, saying that she had “rubbed her fingers up my spine” in 1998 and had propositioned him on a number of occasions after his election to Parliament in 2016 (Daily Telegraph Counter-Allegation);

(iv)    in an article in the Guardian newspaper on 14 February 2019 titled “Brian Burston denies sexually harassing a staff member”, is quoted as saying Ms Hanson’s allegations were “all bullshit” and “garbage” (Guardian Denial);

(v)    repeated allegations that Ms Hanson had sexually harassed him in an article in the Guardian newspaper, also on 14 February 2019 (Guardian Counter-Allegation);

(vi)    commenced defamation proceedings against Ms Hanson in the Queensland Supreme Court on 16 October 2019 (Defamation Proceedings).

18    For completeness, it should be noted that the Defamation Proceedings were later transferred to this Court and heard by me in June 2022. I decided that it was both convenient and desirable to publish my decision and reasons in that proceeding and my decision and reasons on this application at the same time, a point to which I return below.

19    By reference to the chronology of events described in the solicitors’ complaint letter, it can be seen that the substance of Ms Hanson’s complaint to the AHRC was that:

(a)    she had made public allegations concerning Mr Burston’s conduct towards his staff on 12 February 2019, and that he had responded in a victimising way by the blood smearing incident on 13 February 2019, by what he was reported as saying in denying her allegations, and by way of counter-allegations in two newspaper articles published on 14 February 2019;

(b)    she had sent a letter to the President of the Senate on 15 February 2019 about allegations concerning Mr Burston’s conduct towards his staff that had previously been raised by telephone by Mr Ashby and also by Mr Burston’s prior chief of staff;

(c)    she had participated in the Today Show interview on 29 March 2019, making even more serious allegations of sexual abuse and harassment against Mr Burston;

(d)    Mr Burston had responded in a victimising way to the allegations made by her four complaints by commencing defamation proceedings against her on 16 October 2019.

20    It should be noted that Mr Burston takes issue with all of the allegations made against him, either in the complaint made to the AHRC, or in this proceeding, being capable of meeting the requirements necessary to constitute sexual harassment as proscribed by Pt II, Div III of the SD Act. That is largely, but not entirely, said to be because of the lack of any employment relationship between Mr Burston and the staff employed by him on behalf of the Commonwealth, under Pt IV of the Members of Parliament (Staff) Act 1984 (Cth) (MoPS Act), especially s 20 (this situation has been at least partially addressed in amendments made on and from 11 September 2021, which do not apply to Mr Burston). Ms Hanson disputes this by reason of the further particulars in the Proposed FAPOC, sent under cover of a letter dated 5 July 2021, in which she overtly pleads reliance on ss 26, 28G(2) and 28L of the SD Act, as also detailed below. Those further particulars are reproduced later in these reasons.

21    Ms Hanson and Mr Burston did not participate in conciliation. On 4 September 2020, a delegate of the President of the AHRC terminated the complaint upon the following bases:

(a)    with respect to the Commonwealth and the operation of s 105 of the SD Act, upon the basis that the claim was misconceived because that provision concerns accessorial liability and has no application to an allegation of a contravention of s 94 of the SD Act;

(b)    with respect to Mr Burston, under s 46PH(1B)(b) of the AHRC Act on the ground the delegate was satisfied there was no reasonable prospect of the matter being settled by conciliation.

The first aspect at (a) above in relation to the Commonwealth is not pursued further by Ms Hanson in this proceeding.

22    By the time of the termination of the complaint, the AHRC also had before it Mr Burston’s 5 August 2020 response to Ms Hanson’s complaint, and a 21 August 2020 email to Ms Hanson’s solicitors from an investigator and conciliator employed by the AHRC, advising that Mr Burston’s submissions had been considered.

23    On 5 November 2020, Ms Hanson commenced this proceeding, which did not extend to the unfair dismissal aspect of the complaint before the AHRC. The following key events in the proceeding then took place:

(a)    on 22 January 2021, Ms Hanson filed her original points of claim;

(b)    on 1 April 2021, Mr Burston requested particulars of the points of claim;

(c)    also on 1 April 2021, Ms Hanson filed her APOC;

(d)    on 11 May 2021, Ms Hanson responded to the request for particulars;

(e)    on 10 June 2021, Mr Burston filed his defence;

(f)    on 5 July 2021, Ms Hanson served the Proposed FAPOC, seeking to add additional particulars of the way in which she contends that her allegations of Mr Burston’s acts of sexual harassment of his female staff were unlawful by reason of Pt II of the SD Act.

(g)    on 13 July 2021, Ms Hanson applicant filed her reply;

(h)    Mr Burston did not consent to the Proposed FAPOC being filed and instead filed the present interlocutory application dated 20 August 2021.

24    Ms Hanson has also filed in this proceeding outlines of evidence from herself and from Mr Ashby, both dated 2 March 2021, and outlines of evidence from two of Mr Burston’s former staff, Ms Wendy Leach and Ms Terrie-lea Vairy, both dated 1 March 2021. Ultimately, I found that it was not necessary to consider any of that evidence because this application does not require any determination of the veracity of the allegations contained in these outlines.

25    The similarities and differences between what is alleged in the APOC in this proceeding and what had been the subject of the complaint to the AHRC in the 8 April 2020 letter can be summarised as follows, noting the objections taken by Mr Burston to specific aspects, in addition to the absence of any direct employment relationship between him and his staff:

(a)    in relation to the allegations Ms Hanson made against Mr Burston now pleaded in the APOC:

(i)    the First Complaint as defined in the solicitors’ complaint letter, comprising the statement Ms Hanson made to the Senate on 12 February 2019, is pleaded and redefined as the First Allegation;

(ii)    the Second Complaint as defined in the solicitors’ complaint letter, comprising the Facebook post made by Mr Ashby on 12 February 2019, is pleaded as being a post that she caused to take place, but not identifying Mr Ashby by name, and redefined as the Second Allegation;

(iii)    a text message sent by Ms Hanson to Mr Burston’s wife, Mrs Roslyn Burston, at about 6.24 pm on 14 February 2019, stating, inter alia, that Mr Burston “is being investigated for sexual harassment by more than one of his former female staffers” is pleaded and defined as the Third Allegation – this was not referred to in the solicitors’ complaint letter or indeed in any other material advanced by her in support of it, and is objected to by Mr Burston as falling outside the terms of s 46PO(3), despite having been referred to and relied upon in his response to the complaint made by Ms Hanson to the AHRC;

(iv)    the Third Complaint as defined in the solicitors’ complaint letter, comprising the 15 February 2019 letter Ms Hanson sent to the President of the Senate on 12 February 2019, is pleaded and redefined as the Fourth Allegation;

(v)    the Third Complaint as defined in the solicitors’ complaint letter, comprising the interview with Ms Hanson on the Today Show on 29 March 2019, is pleaded and redefined as the Fifth Allegation;

(b)    in relation to the alleged victimising conduct by Mr Burston now pleaded in the APOC:

(i)    the Blood Smearing Incident as defined in the solicitors’ complaint letter is pleaded as threatening and/or seeking to intimidate Ms Hanson, and the definition is maintained;

(ii)    the Daily Telegraph Counter-Allegations as defined in the solicitors’ complaint letter are recast as the same things being said by Mr Burston to a News Corporation journalist about unwanted sexual advances by Ms Hanson, rather than simply being published in the Daily Telegraph, and redefined as the Counter-Allegations;

(iii)    the Daily Telegraph Denial as defined in the solicitors’ complaint letter is recast as things being said to the same News Corporation journalist about the First Allegation and the Second Allegation being “all bullshit” and made because Ms Hanson was a “woman scorned”, rather than simply being published in the Daily Telegraph, and redefined as the First Denial;

(iv)    the Counter-Allegations and the First Denial as defined in the solicitors’ complaint letter are pleaded as being published by the Daily Telegraph and Guardian Australia on 14 February 2019, aligning with this aspect of the solicitors’ complaint letter;

(v)    the Guardian Denial as defined in the solicitors’ complaint letter is recast as Mr Burston telling a Guardian Australia journalist that the First Allegation and the Second Allegation were “garbage” and “all bullshit” and redefined as the Second Denial;

(vi)    there is no pleaded allegation that Mr Burston spoke to anyone at the Sydney Morning Herald or the ABC, but it is pleaded that the Counter-Allegations and the First and/or Second Denials were subsequently published by additional news outlets, repeating the 14 February 2019 publications by the Daily Telegraph and Guardian Australia and adding reference to and reliance upon publication on the news.com.au website on or around 14 February 2019, and in the Sydney Morning Herald and on the ABC website on or around 13 February 2019 – the additional publications on the news.com.au website, by the Sydney Morning Herald and by the ABC were not referred to in the complaint and reliance upon them is objected to by Mr Burston as falling outside the terms of s 46PO(3);

(vii)    the Defamation Proceedings as defined in the solicitors’ complaint letter is added to by referring also to the Third Allegation (the text to Mrs Burston) and the Fifth Allegation (the Today Show interview), and the definition is otherwise maintained;

(viii)    additionally, and post-dating the complaint, Ms Hanson pleads as an additional act of victimisation a complaint made by Mr Burston to the AHRC, alleging sexual harassment and victimisation by Ms Hanson, defined as the AHRC Complaint – Mr Burston objects to this as falling outside the terms of s 46PO(3), relying upon the fact that Ms Hanson’s complaint was never amended to refer to this.

Complaints to the AHRC as a foundation for a proceeding in this Court

26    Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) provides redress for unlawful discrimination. Relevantly, at the time that Ms Hanson lodged her complaint with the AHRC and at the time she commenced this proceeding:

(a)    s 3(1) of the AHRC Act provided:

3 Interpretation

(1)    In this Act, unless the contrary intention appears:

(b)    s 94 of the SD Act relevantly provided, and continues to provide:

94 Victimisation

(1)    A person shall not commit an act of victimization [now spelt “victimisation”] against another person.

(2)    For the purposes of subsection (1), a person shall be taken to commit an act of victimization [now spelt “victimisation”] 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:

27    As detailed below, the definition of unlawful discrimination in s 3(1) of the AHRC Act was amended on and from 11 September 2021, just over a year after Ms Hanson’s complaint to the AHRC had been terminated on 4 September 2020, and a new regime for victimisation was introduced into that Act. These reasons are therefore concerned with the regime that was in place via both the AHRC Act and the SD Act in the relevant period encompassing:

(a)    when the conduct she complained about took place in February 2019;

(b)    when she made her complaint to the AHRC on 8 April 2020;

(c)    when that complaint was terminated by a delegate of the President of the AHRC on 4 September 2020; and

(d)    when she commenced this proceeding on 5 November 2020, being the regime that continued until 10 September 2021.

28    That regime in the relevant period was preserved thereafter for existing complaints and proceedings by transitional provisions forming part of the 11 September 2021 amendments. For all of the relevant period:

(a)    Compilation No. 48 of the AHRC Act was in force (covering the period from 20 December 2018 to 31 August 2021); and

(b)    Compilation No. 41 of the SD Act was in force (covering the period from 9 December 2018 to 10 September 2021).

29    The SD Act does not render sexual harassment unlawful per se, but rather only in defined circumstances. Division 3 of Pt II of the SD Act in the relevant period deals with unlawful sexual harassment via ss 28A to 28L. Section 28A defines sexual harassment. Each of ss 28B to 28L state the circumstances in which sexual harassment is unlawful, largely in a variety of employment and commercial situations, namely of or by:

(a)    employees or prospective employees or between employees and in like relationships, including commission agents, contract workers, partners and workplace participants: s 28B;

(b)    members of bodies with power to grant occupational qualifications: s 28C;

(c)    members or staff of registered organisations: s 28D;

(d)    operators or staff of employment agencies: s 28E;

(e)    staff or students or prospective students of educational institutions: 28F;

(f)    those providing, or offering to provide, or seeking or receiving goods or services: s 28G;

(g)    those providing or offering to provide accommodation: s 28H;

(h)    those disposing of , or offering to dispose of, or acquiring, or offering to acquire, land or an interest in land: s 28J;

(i)    a member of a committee of management of a club, in relation to a member or applicant for membership: s 28K;

(j)    those in the course of exercising or carrying out a function or power under Commonwealth law or for the purposes of a Commonwealth program: s 28L.

30    Relevantly, all of the allegations of sexual harassment made by Ms Hanson against Mr Burston referred in one way or another to female staff working for him. However, he was not the employer of those staff, but rather employed them on behalf of the Commonwealth: Members of Parliament (Staff) Act 1984 (Cth), Pt IV (Staff of Senators and Members), s 20(1). Accepting that to be the case, in the additional particulars at [9] of the Proposed FAPOC, Ms Hanson no longer relies upon having made allegations against Mr Burston which legally fall within any of the employment categories in s 28B, but rather relies upon ss 26, 28G(2) and 28L of the SD Act. As noted above at [4], I am dealing with this application upon the basis of those particulars having been provided by the service of the Proposed FAPOC, noting that those particulars are adhered to in Ms Hanson’s oral and written submissions.

31    Section 28G provides:

28G  Goods, services and facilities

(1)    It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person.

(2)    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.

32    Section 28L provides:

28L  Commonwealth laws and programs

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.

33    Additionally, s 26, within Div 2 of Pt II of the SD Act, dealing with discrimination in areas other than discrimination in work as addressed by Div 1, provides, in like terms to s 28L, but directed to unlawful discrimination rather than sexual harassment:

26 Administration of Commonwealth laws and programs

(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.

34    Ms Hanson relies upon direct sex discrimination contrary to s 26 upon the basis that sexual harassment can legally constitute direct sex discrimination, citing Elliott v Nanda [2001] FCA 418; 111 FCR 240 per Moore J at [125]-[127]. His Honour cited prior authority for and against the proposition and decided to follow two cases in favour of that conclusion. The argument Ms Hanson advances is that it follows from this reasoning that an allegation of sexual harassment may therefore also amount to an allegation of direct sex discrimination. It is sufficient for present purposes that this is arguable, without deciding the point at this stage.

35    It seems inherently unlikely that a case brought by Ms Hanson by reference to s 28L would fail while a case brought by reference to s 26 would succeed. This is because her case on sexual discrimination under s 26 relies upon sexual harassment, and because each of the allegations that she says she made about Mr Burston referred to sexual harassment or what is said to be an allegation of equivalent conduct. None of the allegations made any express reference to discrimination by him per se. It is therefore convenient for that reason to address this aspect of Ms Hanson’s submissions by reference to s 28L as effectively covering s 26, as well as by reference to s 28G(2).

36    Committing an act of victimisation was during the relevant period, and still is, a criminal offence with a maximum penalty of a fine and/or three months’ imprisonment for a natural person. Section 3(1)(c) and (f) of the AHRC Act, when read with other provisions of that Act considered below, during the relevant period:

(a)    made engaging in any conduct that is an offence under s 94 able to be the subject of a complaint to the AHRC; and

(b)    if such a complaint was not resolved and instead terminated, made such conduct the subject of the complaint actionable as a civil cause of action in this Court, without limiting the remedies that may be obtained.

37    The Jurisdictional Issue turns on Mr Burston characterising this proceeding as relying upon an allegation of victimisation based on s 94 of the SD Act and seeking to have this Court exercise criminal jurisdiction which it does not have bestowed upon it.

38    The Reasonable Prospects Issue turns on Mr Burston’s argument that the facts and circumstances pleaded in the APOC are not sufficient to identify a case that has any reasonable prospect of success, and alternatively that there is a need for substantially better pleading of those facts and circumstances to enable him to properly know and be able to meet the case brought against him.

39    The section 46PO(3) Issue is that a number of the aspects of the case pleaded in the APOC, on both the allegations side, and on the victimisation side, did not fall within the terms of that provision so as to be capable of being the subject of any part of the proceeding in this Court.

40    Lodging a complaint of unlawful discrimination was and still is relevantly provided for by s 46P of the AHRC Act as follows (in the form that was in force during the relevant period, and especially at the time of the making of the complaint to the AHRC on 8 April 2020):

46P Lodging a complaint

(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.

(2)    The complaint may be lodged:

(a)    by a person aggrieved by the alleged acts, omissions or practices:

(i)    on that person’s own behalf; or

(ii)    on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or …

41    As can be seen, s 46P(1B) of the AHRC Act requires the complaint to set out as fully as practicable details of the alleged acts, omissions and practices. This requirement is of particular importance when a complaint becomes the subject of a proceeding in this Court because s 46PO(3), reproduced below, sets the parameters of the case that can then be litigated.

42    Section 46PH(1) of the AHRC Act provides for the discretionary termination of a complaint by the President of the AHRC; s 46PH(1B)(b) provides that the President must terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation; and s 46PH(2) provides that the President must notify a complainant in writing of a termination and of the reasons for that termination.

43    Section 46PO(1) of the AHRC Act provides that if a complaint has been terminated, inter alia, under s 46PH, and notice of that termination and the grounds for termination has been given under s 46PH(2), any person who was an affected person in relation to the complaint may make an application to this Court (or to the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia), alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Such an application must be made within 60 days after the date of the issue of the notice under s 46PH(2), or within such further time as the Court allows. The bringing of such a case does not require the leave of the Court if the complaint was terminated under s 46PH(1B)(b), as it was in this case.

44    However, instituting proceedings based on a complaint that is terminated does not give an unfettered right to litigate in this Court. Section 46PO(3) provides:

The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

45    The subject matter of a complaint made to the AHRC will therefore determine what claims can be pursued in this Court. As noted above, Mr Burston asserts non-compliance with that requirement for aspects of Ms Hanson’s pleaded case, being the substance of the Section 46PO(3) Issue.

46    Section 46PO(4) of the AHRC Act provides that if the Court is satisfied that “there has been unlawful discrimination by any respondent”, a range of orders, including declarations, may be made.

Jurisdictional Issue

47    As noted above, the relevant part of the exhaustive definition of unlawful discrimination in s 3(1)(c) and (f) of the AHRC Act is that it means “any acts, omissions or practices that are unlawful under … Part II of the Sex Discrimination Act 1984 … and includes any conduct that is an offence under … section 94 of the Sex Discrimination Act 1984”.

48    The basis for Mr Burston seeking summary dismissal of Ms Hanson’s entire proceeding turns on the way in which the APOC (and the Proposed FAPOC) frames her case by reference to s 94 of the SD Act. Mr Burston contends that this Court has no jurisdiction to hear and determine whether he has committed the alleged criminal offences, and no power to grant the declaratory relief sought at [33(a)] of the APOC (and thus of the Proposed FAPOC) that he “unlawfully victimised Ms Hanson contrary to s 94(1)” of the SD Act.

49    The APOC:

(a)    at [9], pleads that each of five allegations that Ms Hanson is said to have made against Mr Burston, summarised above, “was an allegation that Mr Burston had engaged in sexual harassment, and thus for the purposes of s.94(2)(g) of the Sex Discrimination Act 1984 (Cth) was an allegation that Mr Burston had done an act or acts that are unlawful by reason of Part II of the Sex Discrimination Act 1984”; and

(b)    at [23(b)], [25(b)], [27(b)], [29(b)] and [31(b)], alleges that by reason of the five pleaded instances of detrimental conduct by Mr Burston, summarised above, he “committed an act of victimisation against Ms Hanson contrary to s.94(1) of the Sex Discrimination Act 1984”.

50    The APOC (and also in the Proposed FAPOC):

(a)    at [9], follows the language of s 94(2)(g) of the SD Act by the use of the words “an allegation that Mr Burston had done an act or acts that are unlawful by reason of [a provision of] Part II of the Sex Discrimination Act 1984”, which also in part follows the language of the definition of unlawful discrimination in s 3(1)(c) and (f) of the AHRC Act, which contains the phrase “unlawful under … Part II of the Sex Discrimination Act 1984”, referring to acts, omissions or practices that meet that description;

(b)    at each of [23(b)], [25(b)], [27(b)], [29(b)] and [31(b)], follows the language of s 94(1) of the SD Act by the use of the words “committed an act of victimisation against Ms Hanson”;

(c)    at each of [23(b)], [25(b)], [27(b)], [29(b)] and [31(b)], follows part of the language of the relevant part of the definition of unlawful discrimination in s 3(1)(c) and (f) of the AHRC Act, by the use of the phrase “contrary to s.94(1) of the Sex Discrimination Act 1984”, using “contrary to” in place of “conduct that is an offence under”;

(d)    at [33], seeks, pursuant to s 46PO(4), the following relief:

(a)    A declaration that Mr Burston has unlawfully victimised Ms Hanson contrary to s.94(1) of the Sex Discrimination Act 1984.

(b)    An order that Mr Burston provide an apology to Ms Hanson in respect of the unlawful victimisation.

(c)    An order that Mr Burston cease all victimising conduct, or alternatively all victimising conduct other than the continuation of the Defamation Proceedings and the claim for damages and an injunction in the Defamation Proceedings.

(d)    An order that Mr Burston pay compensation to Ms Hanson for her loss and damage suffered because of the victimising conduct:

i.    reflecting the economic loss and non-economic loss particularised at paragraph 32 above; and

ii.    in addition, in the nature of aggravated damages. [which is then particularised]

51    Ms Hanson therefore seeks a determination that Mr Burston engaged in conduct that is an offence under s 94 of the SD Act, by alleging that he has engaged in “conduct contrary to s.94(1)” of the SD Act, which is a criminal offence provision, and a declaration to that effect, leading to the ultimate relief of an apology, an injunction and compensation. That is precisely what Mr Burston contends the Court does not have jurisdiction to determine, nor correspondingly the power to grant declaratory relief for, and thus any of the ultimate relief sought.

52    Ms Hanson does not suggest any amendment to the APOC to address this concern by different pleading, which is difficult to see as being possible in any substantive way if the jurisdictional objection succeeds, but rather submits that the suggested jurisdictional and power impediments are not present. Ms Hanson effectively contends that there is nothing wrong with a statute creating a civil cause of action, the terms of which are referrable to conduct that also constitutes a criminal offence.

Bestowal of jurisdiction – legislative history

53    Section 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that this Court has such original jurisdiction as is vested in it by the laws made by the Parliament. Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) provides that the original jurisdiction of this Court also includes jurisdiction in any matter “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”, with the legislative note to that paragraph being that “Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia”.

54    Other laws of the Commonwealth can also confer jurisdiction on this Court in relation to “any other criminal matter”. That phrase was considered in Commonwealth of Australia v Lyon [2003] FCAFC 284; 133 FCR 265 (Branson, Madgwick and Hely JJ), and at [47]-[50] given the traditional meaning identified by Viscount Simon LC in Amand v Home Secretary [1943] AC 147 at 156:

If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.

55    It follows that any bestowal on this Court of criminal jurisdiction, or jurisdiction in relation to any other criminal matter, must be explicit in a Commonwealth statute. For most federal offences, that criminal jurisdiction is bestowed by provisions in Pt X of the Judiciary Act (especially s  68), on State and Territory Courts exercising federal jurisdiction, working with s 79(1) applying State and Territory laws as to evidence, procedure and the competency of witnesses to such proceedings. This Court presently has a limited and specific criminal jurisdiction, most notably for competition law criminal cartels on indictment and in a few other areas for summary offences.

56    At the time of the enactment of the SD Act in 1984, it was in six parts:

Part I, Preliminary, ss 1-13

Part II, Prohibition of discrimination, ss 14-47

Part III, Inquiries and Civil Proceedings, ss 48-84

Part IV, Offences, ss 85-95

Part V, Sex Discrimination Commissioner, ss 96-103

Part VI, Miscellaneous, ss 104-116

57    The only changes to s 94 as enacted and as it was at the time Ms Hanson lodged her complaint with the AHRC in 2020, still being its current form, were that the maximum fines that may be imposed changed from a dollar amount to penalty units and the spelling of “victimisation” changed to the current spelling, which was effected in two steps, first in the heading and then in the text. Then, as now, s 94 was in Pt IV of the SD Act, titled “Offences”.

58    At the time of enactment, s 82 of the SD Act provided that the HREOC or a complainant could institute proceedings in this Court to enforce a determination made under ss 80 or 81. Section 115 correspondingly conferred jurisdiction on this Court with respect to matters arising under Pt III (Inquiries and Civil Proceedings). Section 115 was repealed in 1999 and there is no longer any provision of the SD Act expressly conferring jurisdiction on this Court, with that instead being in s 49B of the AHRC Act, as detailed below.

59    No provision of the SD Act has ever conferred any criminal jurisdiction on this Court, let alone criminal jurisdiction in relation to s 94.

60    In 1992, s 47A was inserted into the SD Act by the Sex Discrimination and Other Legislation Amendment Act 1992. Section 47A became the first provision in Pt III (Inquiries and Civil Proceedings), providing that “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.” The part of the Explanatory Memorandum for the Bill that became that amending Act, addressing the new s 47A, provided:

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.

61    The intent behind introducing s 47A was clear enough: to provide, explicitly and clearly, that conduct that constituted a criminal offence was also conduct that was actionable in separate civil proceedings. This contrasted with the words in s 94 which referred, and continue to refer, only to conduct constituting a criminal offence. It appears to be common ground that the terms of s 47A introduced in 1992 did not give rise to any doubts as to this Court’s jurisdiction to hear and determine civil allegations of victimisation. The dispute lies in the period between when that version of s 47A was repealed in 1999 and when it was re-enacted in a different form in 2021, straddling when Ms Hanson lodged her complaint with the AHRC, its termination, her commencement of this proceeding, and the filing of her points of claim, in the period from April 2020 to January 2021.

62    Section 47A of the SD Act was repealed in 1999 with effect in April 2000, by the Human Rights Legislation Amendment Act (No. 1) 1999 (1999 Amending Act), with parallel changes being made to the Disability Discrimination Act 1992 (Cth) and to the Racial Discrimination Act 1975 (Cth), with parallel reasons given for the change. The explanatory memorandum for the Human Rights Legislation Amendment Bill (No. 1) (1999 Bill), which became the 1999 Amending Act, stated:

Item 94 – Section 47A

309.    This item will repeal section 47A of the SDA [SD Act], which currently specifies what is meant by a reference to an unlawful act under Part II of that Act. With the transfer of the legislative structure for complaint handling to the HRA [HREOC Act], the same result will be achieved by inserting in subsection 3(1) of the HRA a definition of 'unlawful discrimination' which includes those acts which were currently included by virtue of section 47A of the SDA.

63    Of course, there are limits to the reliance that can be placed on statements of intent of this kind, notwithstanding the reach of s 15AB of the Acts Interpretation Act 1901 (Cth) which enables an explanatory memorandum to be used to confirm an ordinary meaning of a provision and to determine the meaning of a provision if it is ambiguous or obscure or when the ordinary meaning would lead to a result that is manifestly absurd or is unreasonable. As Spigelman CJ observed in R v JS [2007] NSWCCA 272; 230 FLR 276, albeit in relation to amendments made to the Criminal Code (Cth) that were found not to have achieved their stated objective, such statements may be no more than aspirational, and the ultimate question lies in the meaning to be given to text of the statute: see [142]-[144]. It is not the role of a court to patch up legislative defects except perhaps in the very limited sense identified in Coopers Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 per Gibbs CJ at 305 of departing from the literal words used to avoid an incongruous result, or as provided for by s 15AB; see also R v Young [1999] NSWCCA 166; 46 NSWLR 681 per Spigelman CJ at [5]-[9].

64    In the present context, the statement of intent in the Explanatory Memorandum to the 1999 Bill, applicable to the 1999 Amending Act, in relation to the insertion of a definition of unlawful discrimination as part of a suite of changes which included repealing the more direct language of the former s 47A, is a useful indication of what was sought to be achieved. That is, the creation of a civil cause of action for conduct (as opposed to state of mind) based upon the physical elements of a criminal offence created by s 94(1) of the SD Act, when read with subsection (2). Whether that aspiration was achieved, or went no further than to enable the bringing of a proceeding in this Court which was criminal, or criminal in nature, and unsupported by any jurisdiction to hear it, ultimately turns on the text of the provisions enacted, taking into account authority on this topic considered in some detail below.

65    As the extract above from the 1999 Bill indicated, the 1999 Amending Act, as well as repealing s 47A, also repealed most of the balance of Pt III (Inquiries and Civil Proceedings) of the SD Act, apart from s 48. This was partly in response to the High Court finding that the enforcement regime introduced into the SD Act in 1992 was unconstitutional because it purported to vest judicial power in the HREOC: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245. Part III remained with only s 48, confined to conferring functions pertaining to the SD Act upon the HREOC. In place of all of Pt III of the SD Act apart from s 48, Pt IIB (Redress for unlawful discrimination), was inserted into the HREOC Act, including Division 1 dealing with complaints, and Division 2 dealing with proceedings in this Court. Also inserted as part of the new legislative scheme were:

(a)    additions to s 3(1) in Pt I, relevantly the initial form of the exhaustive definition of unlawful discrimination:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

   (a)    Part 2 of the Disability Discrimination Act 1992; or

   (b)    Part II or IIA of the Racial Discrimination Act 1975; or

   (c)    Part II of the Sex Discrimination Act 1984;

   and includes any conduct that is an offence under:

(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.

(b)    a new s 49B in Pt III, akin to the former s 115 in the SD Act:

49B Jurisdiction of Federal Court

The Federal Court has jurisdiction with respect to civil matters arising under Part IIB or IIC.

66    At the time that Ms Hanson lodged her complaint with the AHRC, at the time she commenced this proceeding, and at the time she filed her original points of claim, s 49B, as noted above, provided that this Court, along with the then Federal Circuit Court, had jurisdiction with respect to civil matters arising under Part IIB. Thus, the jurisdiction conferred in relation to Pt IIB was expressly confined to civil jurisdiction; and no provision of the AHRC Act has ever conferred criminal jurisdiction on this Court.

67    Victimisation was not again overtly proscribed, other than as a criminal offence in the SD Act, until 11 September 2021. On that date, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) commenced. That Act repealed s 3(f) in the definition of unlawful discrimination in the SD Act, and introduced a new Pt II, Div 5—Victimisation, including a new s 47A, and in particular subsection (1) (with subsection (2) describing in parallel to s 94(2) the conduct constituting victimisation):

47A Victimisation

(1)    It is unlawful for a person to commit an act of victimisation against another person.

Note 1: See also section 94 (offence of victimisation).

Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

68    The new provisions only apply to conduct that has taken place from 11 September 2021, or to conduct that has taken place prior to that in relation to which a complaint has been made and not terminated as at 11 September 2021, neither of which applies to Ms Hanson’s complaint.

69    The amendments were made following a report by the Sex Discrimination Commissioner at the AHRC published on 5 March 2020, titled “Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces”. That report recommended:

Victimisation

Recommendation 21: Amend the Australian Human Rights Commission Act to make explicit that any conduct that is an offence under section 94 of the Sex Discrimination Act can form the basis of a civil action for unlawful discrimination.

70    The commentary leading to this recommendation was as follows (omitting footnotes):

(ii) Jurisdiction of the court

Cases prior to 2011 have held that victimisation provisions in the relevant federal unlawful discrimination acts may give rise to civil and/or criminal proceedings. This is because the definition of ‘unlawful discrimination’ in section 3 of the Australian Human Rights Commission Act—which gives rise to a right to make a complaint to the Commission—specifically includes conduct that constitutes an offence of victimisation, including under section 94 of the Sex Discrimination Act.

Section 46PO of the Australian Human Rights Commission Act provides that if a complaint is terminated by the Commission, an affected person may make an application to the Federal Court or the Federal Circuit Court about the same, or substantially the same, alleged unlawful discrimination.

However, three cases since 2011 have cast doubt on whether either the Federal Circuit Court or the Federal Court has jurisdiction to hear an application of unlawful discrimination under the Australian Human Rights Commission Act, where the alleged unlawful discrimination is an act of victimisation brought as a civil action. This legal uncertainty arises principally from the fact that the victimisation provisions in the relevant federal discrimination laws, including the Sex Discrimination Act, are set out as criminal offences. Further discussion on this issue is detailed in the Commission’s Federal Discrimination Law publication.

Several submissions to the Commission noted the current uncertainty regarding the Federal Court and the Federal Circuit Court’s jurisdiction to hear an application for an act of victimisation under the Sex Discrimination Act, as a civil claim brought under the Australian Human Rights Commission Act. These submissions recommended that this uncertainty be clarified.

The Commission’s view

The Commission agrees that legislative amendment is necessary to clarify that the Federal Court and the Federal Circuit Court have jurisdiction to hear an application under the Sex Discrimination Act alleging victimisation as a civil cause of action.

Authorities on jurisdiction

71    Among the cases prior to 2011 referred to in the first paragraph of the Respect@Work report extract reproduced above was Penhall-Jones v New South Wales [2007] FCA 925, per Buchanan J at [10]:

Sections 46P and 46PO are in Part IIB of the HREOC Act (which provides for ‘redress for unlawful discrimination’). A complaint alleging victimisation may be dealt with under the provisions in Part IIB of the HREOC Act because s 3 of the HREOC Act defines ‘unlawful discrimination’ to include:

‘…any conduct that is an offence under:

(d)    Division 4 of Part 2 of the Disability Discrimination Act 1992.’

Section 42 of the Act appears in Division 4 of Part 2 of the Act. 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]).

72    In the case cited by Buchanan J, O’Connor v Ross (No 1) [2002] FMCA 210, Driver FM, subsequently Judge Driver, dismissed an application to strike out a claim of victimisation contrary to s 42 of the Disability Discrimination Act 1992 (Cth) (DD Act), the parallel provision to s 94 of the SD Act, stating 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.

73    In Dye v Commonwealth Securities Limited [2010] FCA 720, Katzmann J refused to grant a motion for leave to amend extensively a statement of claim. One such amendment was to expand a claim of victimisation based on s 94 of the SD Act to plead an action on the case at common law. In rejecting that proposed amendment upon the basis that the scheme of the legislation left no room for a collateral common law cause of action, her Honour said at [78]:

The general principle is that the identification of what, if any, private rights of action are conferred by a statute (either expressly or by necessary implication) requires an examination of the nature, scope and terms of the statute. That includes “the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation”: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [20], citing Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].

74    On appeal in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (Dye No 2), the Full Court said (emphasis added):

[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 s 94 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. 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, 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 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.

75    It does not appear that in Dye at first instance, or on appeal in Dye No 2, any issue was raised as to jurisdiction in relation to s 94 of the SD Act, most likely because the possibility of any problem in that regard had not been identified, noting that this had been rejected by Buchanan J in Penhall-Jones in his Honour’s customary clear and unmistakable terms. By 2010, jurisdiction had either been positively found to be bestowed, or that was assumed to be the case.

76    The three cases since 2011 referred to in the third paragraph of the passage of the Respect@Work report extract reproduced above, reflecting a different view as to jurisdiction, are Walker v Cormack [2011] FCA 861; 196 FCR 574 (Gray J), Walker v State of Victoria [2012] FCAFC 38 (Gray, Flick and Reeves JJ) and Chen v Monash University [2016] FCAFC 66; 244 FCR 424 (Barker, Davies and Markovic JJ).

77    In Walker v Cormack, an appeal was brought from a decision of the former Federal Magistrates Court to dismiss an application brought alleging sex discrimination by advertising women’s only gymnasium classes and victimisation under the SD Act arising from the appellant, a man, being excluded from a female gymnasium class. Gray J, exercising the Court’s appellate jurisdiction, agreed with the Federal Magistrate that the appellant’s exclusion from the gym class was due to his inappropriate behaviour, not in response to his complaint of discrimination. His Honour also observed by way of overt obiter dicta (emphasis added):

[40]    It is difficult to find any statutory provision conferring criminal jurisdiction on the Federal Magistrates Court, whether generally or specifically in relation to offences under Pt IV of the Sex Discrimination Act. It was not possible to explore this issue fully on the hearing of the appeal, because no-one had averted to it until I raised it in the course of the hearing of the appeal. It is clear that the federal magistrate did not deal with the allegations of advertising and victimisation as criminal offences. If they were to be dealt with in that way, it would be necessary to deal with them separately from the allegation of unlawful discrimination in the provision of services, under Pt II of the Sex Discrimination Act. It would be wrong to expect a person facing criminal charges, particularly one that might lead to a sentence of imprisonment, to be asked to meet the allegations on which those charges were based in the context of a civil trial. The reading of a formal charge, followed by a plea of guilty or not guilty would be required. It would be necessary for the Court to be satisfied of the elements of the offence by reference to the criminal standard of proof, beyond reasonable doubt.

[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 proceeding, 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 explored fully.

78    In Walker v State of Victoria, a case concerned with the victimisation provision in s 42 of the DD Act, which is in substantially the same terms as s 94 of the SD Act, Gray J (with Reeves J agreeing, but only with the substance of the reasons of Gray J and of Flick J, and Flick J not commenting on this issue at all) revisited the issue of jurisdiction and observed (emphasis in original):

[97]    The question of the onus of proof leads to a difficult issue in relation to victimisation. It is abundantly clear that s 42 of the Disability Discrimination Act creates a criminal offence. The section is found in Div 4 of Pt 2 of the Disability Discrimination Act. The heading for Div 4 is “Offences”. Section 42(1) provides that the maximum penalty for an offence of victimisation is imprisonment for six months. Section 12A of the Disability Discrimination Act expressly imports Ch 2 of the Criminal Code (found in the Schedule to the Criminal Code Act 1995 (Cth)), except for Pt 2.5 (which relates to corporate criminal responsibility), with respect to all offences against the Disability Discrimination Act.

[98]    It is undeniable that a complaint can be made to the Commission in respect of victimisation, pursuant to s 46P(1) of the Human Rights Act. Such a complaint may be made “alleging unlawful discrimination.” The definition of “unlawful discrimination” in s 3(1) of the Human Rights Act specifically “includes any conduct that is an offence under ... Division 4 of Part 2” of the Disability Discrimination Act. There is a question whether, when a complaint has been terminated and a proceeding may be commenced in this Court or the Federal Magistrates Court, pursuant to s 46PO(1) of the Human Rights Act, such a proceeding can be commenced in respect of conduct that amounts to an offence. The specific conferral of jurisdiction to deal with an application is found in s 49B of the Human Rights Act. Jurisdiction is conferred on this Court and the Federal Magistrates Court only with respect to civil matters. The general conferral on this Court of jurisdiction in any matter arising under an Act of the Commonwealth Parliament, found in s 39B(1A)(c) of the Judiciary Act 1903 (Cth) contains a specific exclusion of “a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

[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.

[100]    These questions were not argued fully in the present case, and there is no need to answer them. They do need to be the subject of authoritative answer.

79    In Chen v Monash University, an application was made to reinstate appeal proceedings that had been discontinued, concerning some 53 claims of sex discrimination and sexual harassment. The Full Court (Barker, Davies and Markovic JJ), principally found that the power to reinstate had not been enlivened. Their Honours then, in the alternative, turned to the question of the appropriateness of reinstatement had the power been enlivened, concluding that the appeal had no reasonable prospects of success so as to justify reinstatement. In the course of reaching that conclusion, their Honours considered the asserted errors of law on the part of the primary judge, one of which was that his Honour erred in finding that the Court did not have jurisdiction to hear the applicant’s claims of victimisation. The applicant submitted on this issue that she sought civil not criminal remedies from the Court and that the primary judge failed to take that into account and failed to consider appropriate authorities such as Alexander v Cappello [2013] FCCA 860. Their Honours reproduced s 94(1) and (2) of the SD Act, and then said (emphasis added to the end of [121]):

[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.

Their Honours further considered at [123] (emphasis added):

[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 State of 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.

80    To explain the bolded passage above, the primary judge in Chen v Monash University [2015] FCA 130, Tracey J, had said:

[10]    Prior to trial Dr Chen had also alleged that some of the alleged misconduct constituted victimisation under the SDA or racial discrimination under the Racial Discrimination Act 1975 (Cth). Reliance on these provisions was abandoned at the outset of the hearing.

[11]    Section 94 of the SDA creates a criminal offence of committing an act of victimisation against another person. Such an act is taken to have been committed if the offender acts to the detriment of a complainant because that person had complained about conduct proscribed by the SDA. Dr Chen accepted that the Court could not entertain claims of victimisation because victimisation is a criminal offence and the Court lacks jurisdiction to deal with such charges: cf Walker v State of Victoria [2012] FCAFC 38 at [98] (Gray J, with whom Reeves J agreed). The respondents did not oppose these allegations being dealt with as sex discrimination claims which formed part of a course of conduct on the part of the University.

It is not clear whether the above conclusion was reached because the allegation made and abandoned was pleaded as a criminal offence.

81    The approach taken by a number of single judges since Chen v Monash University is as follows:

(a)    In Winters v Fogarty [2017] FCA 51 at [29]-[34], Bromberg J considered each of Dye at first instance, Dye No 2 on appeal to the Full Court, Walker v Cormack, Walker v State of Victoria and Chen v Monash University as well as several other cases. His Honour did not consider himself bound by Chen v Monash University, but would have followed it as a Full Court decision but for Dye No 2. His Honour was not persuaded that there was no reasonable question to be tried as to jurisdiction, noting also without criticism that the issues underlying the conflicting authorities had not been fully addressed, concluding that this challenge to jurisdiction was not a sufficient basis for striking out those parts of the statement of claim, noting that other parts were unaffected by this argument. That is not the present situation. There has been full argument; and Ms Hanson’s case is brought solely upon the basis for victimisation contrary to s 94.

(b)    In Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575, White J heard an interlocutory application seeking the striking out of parts of a statement of claim. Victimisation based on s 94 of the SD Act was one of a number of causes of action pleaded under both the SD Act and the DD Act. The respondent also sought a separate hearing as to whether the Court had jurisdiction to hear and determine the victimisation claim. His Honour referred to the competing authorities, including those referred to above and to the essence of the jurisdictional dispute. His Honour weighed up the competing considerations for the jurisdictional dispute to be heard as a separate question, and decided against it, largely because of the numerous other claims that would need to be delayed pending both determination of that question, and any appeal. Again, that is not the present situation.

(c)    In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436, Collier J referred to the competing authority on jurisdiction in relation to a claim of victimisation, after having made adverse findings on capacity to carry out the inherent requirements of the job in relation to which he claimed disability discrimination, such that no discrimination had taken place. Her Honour decided at [319] that, notwithstanding the inconclusive state of Full Court authority on this issue, for the purposes of that application she was prepared to accept that the Court does have jurisdiction, and then found as a question of fact that victimisation had not taken place. This was a pragmatic approach that does not provide guidance to the present situation.

(d)    In Wilson v Britten-Jones (No 2) [2020] FCA 1290, Abraham J refused an application under s 46PO(3A) for leave to bring proceedings alleging sex discrimination and victimisation. In the course of reaching that conclusion, her Honour did not need to decide the question of jurisdiction because she found that the applicant did not have an arguable case in any event, and had that not been the case, in that state of uncertainty, a doubt over jurisdiction would not have been a sufficient reason to refuse leave. In this case, the question is squarely raised and will need determination at some stage of this proceeding.

(e)    In Leach v Burston [2022] FCA 87, Halley J considered that it was reasonably arguable that the Court did have jurisdiction prior to the 2021 amendments, and was inclined to that view, and accordingly was not prepared to determine the question on an interlocutory basis, in the context of other claims that did not give rise to this issue. Again, that is not the present situation.

The competing arguments

82    Mr Burston submits that the Full Court’s decision in Walker v State of Victoria is the most detailed consideration of the issue of jurisdiction, and was followed by another Full Court in Chen v Monash University. He submits that there is no proper reason for a single judge of this Court to refuse to follow those two Full Court decisions, pointing also to the absence of consideration being given to the legislative history in the cases. Mr Burston submits that unlike the earlier cases, the claim of victimisation and reliance on s 94 of the SD Act is the sole and only basis for the claim brought by Ms Hanson, such that this presents the Court with an appropriate opportunity to determine the question of jurisdiction. He correctly observed that if there is no jurisdiction, then Ms Hanson’s claim must fail in its entirety.

83    Mr Burston submits that the definition of “unlawful discrimination” in s 3(1)(f) of the AHRC Act cannot do the work that the earlier and repealed version of s 47A of the SD Act did. That definition appears for the purpose of identifying the types of complaints that can be made to the AHRC, and does not have the effect of making particular conduct unlawful. Only the operative provisions of the SD Act make conduct unlawful, not the definition provisions of the AHRC Act, which is concerned with the manner in which complaints are made and the powers of the AHRC. He submits that the definition in s 3(1) of the AHRC Act is not capable of making an offence in the SD Act a civil cause of action, nor of conferring upon this Court the jurisdiction to determine whether conduct amounting to an offence under s 94(1) of the SD Act has been committed. Mr Burston also submits that the application of Chapter 2 of the Criminal Code to the offence in s 94(1) by s 13A of the SD Act, so as to make general principles of criminal responsibility apply, points to that and other offence provisions in the SD Act having a different character to provisions such as the former s 47A, and the new s 47A, separately making conduct unlawful.

84    Mr Burston also submits, effectively in the alternative, that the form of declaration sought is not permissible. However, I do not consider that this is an appropriate matter to consider as part of an interlocutory application. It is commonplace for the final form of any declaration, and the question of whether it will be granted or not, to be determined after the trial on liability.

85    The balance of Mr Burston’s argument concerns the alternative case that even if there is jurisdiction, the allegations are misconceived and have no prospect of success as currently pleaded. It is only necessary to consider these arguments if the primary arguments fail, and even then the usual course would be to give an opportunity to re-plead.

86    Ms Hanson’s contrary submissions are detailed and comprehensive. The essence of them, as follows:

(a)    her claim is civil, not criminal, and she does not allege that Mr Burston has committed any criminal offence;

(b)    rather, each of paragraphs 23(b), 25(b), 27(b), 29(b) and 31(b) of the APOC allege no more than that Mr Burston committed an act of victimisation contrary to the conduct proscribed by s 94(1) of the SD Act so as to give rise to civil remedies;

(c)    she alleges loss arising from the victimisation, and claims corresponding civil relief, not any criminal sanction;

(d)    her cause of action is of unlawful discrimination, for which redress was, at the relevant time, provided for by Pt IIB of the AHRC Act, complementing s 46P;

(e)    the content of the relevant unlawful discrimination was provided by the definition of that term in s 3(1)(f) of the AHRC Act, in common with references to similar provisions in the Age Discrimination Act 2004 (Cth), the DD Act and the Racial Discrimination Act 1975 (Cth), noting that the transitional provisions for the 11 September 2021 amendments provide that this definition of unlawful discrimination continues to apply to conduct that was engaged in prior to the commencement of the new provisions;

(f)    the effect of including conduct that also constitutes an offence under s 94 of the SD Act is that it can be the subject of a complaint to the AHRC under s 46PO of the AHRC Act and can also be the subject of an application to this Court;

(g)    the explanatory memorandum to the recent amendments make it clear that the legislative intention was always been that the same conduct could be the basis for both a civil and a criminal cause of action;

(h)    contrary to Mr Burston’s submission, the source of jurisdiction is not the SD Act, but rather the AHRC Act;

(i)    Mr Burston’s submissions obscure the fundamental distinction between victimisation as unlawful discrimination for the purposes of the AHRC Act as a civil cause of action, and victimisation as a criminal offence under the SD Act;

(j)    the following authorities are correct and should be followed:

(i)    the reasoning of Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925 at [10];

(ii)    the reasoning of Driver FM in O’Connor v Ross (No 1) [2002] FMCA 210 at [11];

(iii)    the reasoning of Katzmann J in Dye at [78] that “the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it”;

(iv)    the reasoning of the Full Court in Dye No 2 at [84] that:

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. 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, 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;

(k)    the contrary and only provisional or tentative obiter observations of Gray J in Walker v Cormack (not clearly agreed to by Reeves J and not referred to by Flick J), and of the Full Court in Chen v Monash University, were not binding, were not correct, and should not be followed, and certainly not preferred to the later decisions of Dye and Dye No 2.

Consideration

87    There is no binding determination on Mr Burston’s challenge to jurisdiction. I therefore proceed to determine the question of jurisdiction on the basis of the terms of the legislation, gaining such assistance as I can from the authority discussed above and from the competing arguments.

88    In the end, the competing arguments come down to a relatively simple proposition: does the relevant part of the exhaustive definition of “unlawful discrimination” in s 3(1)(c) and (f) of the AHRC Act, that means “any acts, omissions or practices that are unlawful under … Part II of the Sex Discrimination Act 1984 … and includes any conduct that is an offence under … section 94 of the Sex Discrimination Act 1984”:

(a)    purport to permit this Court to determine whether or not a criminal offence had been committed, without the necessary corresponding conferral of criminal jurisdiction?

or

(b)    do no more than provide a legislative shorthand for a civil cause of action in relation to conduct that could, if brought by way of criminal proceedings, instead give rise to a finding that a criminal offence had been committed?

89    After lengthy consideration, I am firmly of the view that the latter is correct. The contrary tentative and obiter reasoning in Walker v Cormack and in Chen v Monash University, has, in my view, read too much into what is no more than legislative shorthand. Such shorthand is not ideal and has now been abandoned, but its objective of consistency as between civil and criminal norms has now been preserved by the 2021 amendments by describing the same conduct in two places for civil and criminal contraventions.

90    To repeat and wholeheartedly adopt the description given by Judge Driver in 2002, when still a federal magistrate, in O’Connor v Ross (No 1) at [11], commenting upon the equivalent provision to s 94 in the Disability Discrimination 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.

91    Nothing said since has improved upon Judge Driver’s characterisation and explanation, although both Katzmann J in Dye and the Full Court in Dye No 2 in the extracts reproduced at [86](j)(iii) and (iv) above correctly describe the legal effect of the provisions. This Court is not called upon to adjudicate upon criminal conduct, nor exercise criminal jurisdiction which it does not have, nor consider the imposition of criminal sanctions. The creating of a civil cause of action by reference to conduct that is also criminal does no such thing. It follows that Mr Burston’s application for summary dismissal upon the basis of there being no jurisdiction to entertain a civil case of victimisation must fail. This was always a question that had to be determined, and it is best that it was determined first because an alternative conclusion would have brought this proceeding to an end.

Section 46PO(3) issue

92    There is a substantial dispute between the parties as to how s 46PO(3) operates in relation to the complaint made by Ms Hanson to the AHRC and the constraint it imposes upon this proceeding. It is therefore necessary to consider a number of key authorities about s 46PO(3) before turning to the competing arguments. The issue to be determined is whether or not the aspects of the APOC that Mr Burston objects to meet the s 46PO(3) description of being the same as, or the same in substance as, the unlawful discrimination, or arise out of the same, or substantially the same, acts, omissions or practices, that were the subject of the terminated complaint.

Section 46PO(3) of the AHRC Act

93    The terms and evident purpose of s 46PO(3) of the AHRC Act is to set the metes and bounds of a proceeding brought under s 46PO(1) by reference to the complaint to the AHRC upon which the application is based. This has been addressed by numerous authorities, with the key passages from a number of the most frequently cited being reproduced below.

94    In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573, Katz J observed:

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

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

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

[40]    It 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.”

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

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

95    In Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450, Emmett, Lander and Tracey JJ said:

[18]    Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made. It only lies in respect of the subject matter of the complaint to the Commission. …

[19]    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).

96    In Dye No 2, the Full Court (Marshall, Rares and Flick JJ) said:

[44]    The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission.

[45]    Thus, a complaint can be made by a person seeking to represent, for example, aged, blind or deaf persons or persons suffering from a particular disability, and allege unlawful discrimination by the provider of a public service such as transport or education. Such a complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of the complaint. It is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement. Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission. However, the dates, times, places and precise circumstances each group member may instance in giving evidence in representative proceedings would almost never be given in any detail or at all, in a complaint to the Commission. But, a person entitled to seek relief as a group member under ss 46PO(4) and (5) cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge.

[46]    Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

[47]    As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-581 [35]-[41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].

[48]    The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach “not bound by technicality”. It provided in relation to, among other provisions, s 46PO:

Court not bound by technicalities

46PR    In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

The “substantive directions” given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.

97    In Cumaiyi v Northern Territory of Australia [2020] FCA 1299, White J considered Grigor-Scott, Charles v Fuji Xerox and Dye No 2 (both the trial and appeal judgments) and a number of other authorities on the scope of s 46PO(3), and observed:

[18]    … 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. [see Dye No 2 at [50]-[52] reproduced above]

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

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

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

98    What emerges from the foregoing is that when a challenge is made to an application or part of an application made to this Court based upon a terminated complaint, an evaluative assessment may need to be made of the substance of the complaint to see if it has been departed from in a way that goes beyond what is permitted by s 46PO(3). That is complicated in this case because of the interaction between the allegations that Ms Hanson says she made against Mr Burston, and the victimisation response by him that she asserts took place.

99    A number of summaries of, or refinements to, the principles outlined above in relation to s 46PO(3)(b) may be succinctly stated:

(a)    an amendment to an application, and thus an application itself, may be made which “does no more than put a different legal complexion on the same or substantially the same acts, omissions or practices”: King v Jetstar Airways (No 2) [2012] FCA 8; 286 ALR 149 per Robertson J at [28];

(b)    different or additional facts may be relied upon, provided they are not different in substance from those alleged in the terminated complaint, with complete symmetry not being required: Leach v Burston [2022] FCA 87 at [58], and the cases there cited;

(c)    additional particulars or details in support of an application based upon a terminated complaint may be relied upon: see Dye No 2 at [50]-[53] above, where an additional allegation of sexual assault was permitted to be relied upon because it was “capable of being characterised as an act that arose out of the same unlawful discrimination of which she complained or it was the same in substance”, and the complaint was understood to be alleging “instances of a pattern of behaviour”, such that the scope of the complaint was “sufficiently wide” to prevent this aspect from being excluded from the pleading upon the ground in s 46PO(3);

(d)    a complaint is not to be read as a pleading, an approach that is reinforced by the Court not being bound by technicalities and legal forms by s 46PR, quoted in Dye No 2 at [48], reproduced above;

(e)    what matters is the “shape” of the complaint by the time of termination, with a focus on the facts and matters before the AHRC by that time, which in this case includes Mr Burston’s response which had been considered by the AHRC, insofar as it informs the scope of the complaint that has been made: Travers v New South Wales [2000] FCA 1565 per Lehane J at [8]; Cumaiyi at [14(c)].

Summary dismissal of parts of Ms Hanson’s APOC

100    Mr Burston’s interlocutory application pleads at [1(a)] that by the operation of s 46PO(3) of the AHRC Act this Court has no jurisdiction with respect to Ms Hanson’s claims outlined at [30]-[39] of Mr Burston’s submissions, and dealt with below, that are said to be:

(a)    not the same as (or the same in substance as) the unlawful discrimination that was the subject of the complaint terminated by a delegate of the President of the AHRC on 4 September 2020; or

(b)    not arising out of the same (or substantially the same) acts, omissions or practices that were the subject of the complaint terminated by a delegate of the President of the AHRC on 4 September 2020.

101    Mr Burston submits that Ms Hanson is attempting impermissibly to bypass the procedures provided for by the AHRC Act by raising in this Court new or different claims to those investigated by the AHRC and identified in the terminated complaint. He contends that she makes a range of new and different allegations that were not part of the terminated complaint, which are not the same or substantially the same as the matters alleged in that complaint. The arguments for Mr Burston are advanced by reference to particular paragraphs of the APOC, and will be addressed in the same way, before turning to Ms Hanson’s response.

102    It is important to recognise again that Ms Hanson’s complaint to the AHRC was not about the allegations she made against Mr Burston per se, which were not in relation to conduct said to be directed to her, but rather about her being victimised by reason of making those allegations. The legal substance of her case is that having made certain specified allegations, Mr Burston has responded in six ways that she characterises as proscribed victimisation. The case she brings is essentially one of unlawful retaliation for what she has done.

Paragraphs 6, 9(c), 28, 29, 30, 31 of the APOC with respect to the Third Allegation

103    In the APOC (and in the Proposed FAPOC) Ms Hanson relies upon a further complaint giving rise to the alleged victimisation, comprising a text message that she sent to Ms Rosalyn Burston, the wife of Mr Burston, at about 6.24 pm on 14 February 2019. Part way into that text message it is stated that Mr Burston was “being investigated for sexual harassment by more than one of his former female staffers”, preceded by a denial of her having sexually harassed Mr Burston, and followed by naming a staffer and by other quite separate matters concerning Mr and Mrs Burston. In the APOC (and in the Proposed FAPOC), this is referred to as the Third Allegation.

104    Mr Burston’s point is that, noting that Ms Hanson was legally represented when she made her complaint to the AHRC, that terminated complaint made no allegation that she privately and directly contacted Mrs Burston to make an allegation about Mr Burston. He contends that it is therefore an allegation giving rise to victimisation on a markedly different basis. Further, he contends, the text message raises a range of other allegations that were not part of the complaint either. He contends that Ms Hanson’s actions in contacting Mrs Burston are not the same or substantially same as the allegations she claims to have made as motivating the alleged victimisation as described in the terminated complaint, such that the part of APOC concerning the Third Allegation should not be permitted to proceed.

105    Ms Hanson acknowledges that the text she sent to Mrs Burston was not specifically referred to. That is an understatement. Unlike each of the other allegations, which are separately detailed despite being of much the same nature, noting in particular the Daily Telegraph and Guardian articles to the same effect and published on the same day, that text is not referred to at all, directly or indirectly. As it was a text sent by Ms Hanson, it is not as though she was unaware of it. She nonetheless submits that this does not mean that she was precluded from relying upon that text as part of the conduct on her part that gave rise to her claim of victimisation. She asserts that this is no more than reliance upon an incident that is additional to, but of the same nature as, the acts, omissions and practices referred to in the terminated complaint, or being in the nature of further particulars of the same.

106    The problem with Ms Hanson’s argument is that the authority she relies upon relates to additional aspects of behaviour by the person complained about, whereas she is seeking to rely upon quite different conduct by her as being a separate and different trigger for the victimisation she alleges took place. Even if that was not a barrier, the conduct in her sending a text to Mrs Burston was of a very different and private nature to the utterances that were either public in the first place, or were made public by her during the Today Show interview, and were relied upon in her complaint as being the basis or motivation for the alleged victimisation. An allegation of victimisation for what Ms Hanson had said by text directly to Mrs Burston and to no one else is of a materially different character. Had it been raised in the complaint, either originally or by way of amendment, it is not difficult to see that Mr Burston might well have taken a different approach to conciliation.

107    Ms Hanson is seeking in substance to bypass the AHRC’s ordinary processes. It is not to the point that Mr Burston referred to that text in his response, because in doing so he was referring to her conduct towards him, not any conduct by him to towards her. At no time before the AHRC was it even suggested, much less alleged, that any of the instances of victimisation were in any way due to that text being sent. This is a substantial change to the allegations that were before the AHRC. It is not the same or substantially the same kind of event said to motivate victimisation, merely because of the repetition in one small part of that text to the allegations of sexual harassment she had made against Mr Burston.

108    Had Ms Hanson wished to rely upon the text that she sent to Mrs Burston as one of the motivations for the alleged victimisation, she needed to bring it before the AHRC by amending her complaint, especially as she was aware of this taking place and her solicitors knew about the text she had sent, at least by the time of Mr Burston’s response.

109    The Third Allegation as defined and described in [6] of the APOC, and the references to it in [9(c)], [28], [29], [30] and [31] of the APOC are not permitted by s 46PO(3) on even the most liberal reading of that provision and accordingly cannot be maintained. It follows that [6] and the corresponding references to the Third Allegation in [9(c)], [28], [29], [30] and [31] of the APOC must be summarily dismissed.

Paragraphs 14B(a), 14B(b), 14(e) of the APOC concerning new media reports

110    Mr Burston takes issue with the way in which the victimisation allegations in the APOC defined as the Daily Telegraph Denial, the Daily Telegraph Counter-Allegation, the Guardian Denial and the Guardian Counter-Allegation are alleged, for the first time, to have been published not just by the Daily Telegraph and the Guardian as stated in the complaint, but also on News Online (news.com.au), the Sydney Morning Herald and the ABC at around the same time. There is no pleading that links any conduct on the part of Mr Burston to those additional publications. He is linked to the existing publications by the pleading that he spoke to a News Corporation journalist and a Guardian Australia journalist, being additional particulars that are not objected to.

111    The substance of Mr Burston’s objection is that there was no allegation in the complaint that he spoke to any journalist from any of those additional publishers, who then in turn published his words, such the publications could be treated as part of the alleged acts of victimisation by him, nor any allegation of anything additional done by him. For those reasons, Mr Burston contends that it is not clear on what basis these claims even engage the SD Act. Mr Burston further complains that these additional publications were not even referred to in the complaint, and the nature and extent to which he committed an act of victimisation by reference to those publications is not explained. Thus, he asserts, [14B](a), (b) and (e) of the APOC raise new allegations of victimisation by way of broader publications and/or different detriment to those alleged in the complaint.

112    Ms Hanson counters that the additional publications are relevant in showing the counter-allegations and denials were more widely published as he “must have foreseen” would occur, given that they were made to journalists, and as such demonstrate the detriment that she was subject to as a result. She therefore characterises those additional publications in [14B](a), (b) and (e) of the APOC as further acts of particulars concerning the publication of those counter-allegations and denials.

113    The problem with Ms Hanson’s argument is that the additional publications seem obviously enough to be copycat publications by the three additional outlets, and not something that Mr Burston caused to happen, let alone anything that he is alleged to have caused to happen. For her to make good her argument it is not enough to point to the actions of independent media outlets as being somehow the responsibility of Mr Burston, upon the slender and unpleaded basis advanced that he “must have foreseen” this would occur. It is bootstrap reasoning to argue for some increased measure of detriment, for which he is at least implicitly to be made responsible for, arising from conduct of third parties, when this has never previously been raised.

114    If every application to this Court was allowed to be expanded in this way, the role of s 46PO(3) of ensuring that the AHRC act as a meaningful filter would be greatly impeded. It is not as though the additional publications were not available to Ms Hanson at the time she made the complaint via her lawyers, or at any time prior to its termination almost five months later. All of the publications took place at around the same time. If Ms Hanson wished to rely upon this broader range of publications, she needed to make that part of her complaint to the AHRC, necessarily addressing how Mr Burston was responsible for this taking place as an act of victimisation on his part.

115    The further publications are not pleaded as something for which Mr Burston is responsible, unlike the conversations he is expressly alleged to have had with a News Corporation journalist and a Guardian Australia journalist, being additional particulars that are not objected to. As such, they are not permitted by s 46PO(3) and accordingly cannot be maintained. It follows that [14B](a), (b) and (e) of the APOC must be summarily dismissed. As the allegations in [14B](c) and (d) are repetitions of the publications pleaded at [13] and [14A], they are incorrectly referred to as part of publications by “additional news outlets”. Summary judgment should therefore be entered for [14B](a), (b) and (e), and [14B](c) and (d) should be struck out as otiose and apt to confuse.

Paragraphs 19, 20, 21(e), 30, 31 and 32(e) of the APOC for the AHRC complaint

116    By [19] and [20] of the APOC, Ms Hanson pleads the fact of Mr Burston lodging a complaint of sexual harassment and victimisation with the AHRC on about 12 June 2020, referring, inter alia, to her statement to the Senate on 12 February 2019, her Facebook post on 12 February 2019, her text to Mrs Burston on 14 February 2019, and her letter to the President of the Senate on 15 February 2019. Mr Burston objects to this upon the basis that this formed no part of Ms Hanson’s complaint to the AHRC, Ms Hanson not having sought to amend her complaint to include this. As a result, this allegation was not addressed by the AHRC investigation.

117    Mr Burston additionally relies upon s 48(3)(a) of the AHRC Act, which relevantly provides that where a complaint is made to the AHRC, “a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint … was made, the document or information was furnished or the evidence was given.” Mr Burston also relies upon there being no reference in the Ms Hanson’s genuine steps statement to any new or different complaint that post-dates the complaint lodged on 8 April 2020.

118    Ms Hanson asserts that she is able to raise conduct occurring after she had initially lodged her complaint as a further instance of victimisation, provided it arises out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint, within the terms of s 46PO(3)(b). She argues that the scope of a terminated complaint is to be assessed at the time of termination and includes all facts and matters that were before the AHRC prior to that termination, citing the Federal Magistrates Court decision of Gama v Qantas Airways Ltd [2006] FMCA 11;195 FLR 475 at [9], said to be to that effect, in the sense of extending beyond the complaint at hand to anything that is before the AHRC more generally, so as to “shape” the complaint that is to hand.

119    Ms Hanson argues that Mr Burston’s AHRC complaint is an act of victimisation that is substantially the same as the acts or practices that comprise the counter-allegations of her sexually harassing him that she already relies upon. She also argues that Mr Burston’s response to her complaint sets out those counter-allegations, expressly referring to his AHRC complaint, which was considered by the AHRC. She therefore submits that his AHRC complaint is, consistently with the language of s 46PO(3), an act that was the ”subject of” the terminated complaint.

120    Mr Burston in reply again emphasises that the allegations relying upon his AHRC complaint were not part of Ms Hanson’s terminated complaint, being allegations of events that took place in June 2020, well after her complaint was lodged on 8 April 2020. He submits that it was open to Ms Hanson to seek leave to amend the complaint to add a new allegation of conduct occurring after it was lodged, but she did not do so. He submits that if her argument about being able to add post-complaint conduct in this Court, it would have the practical effect of giving a green light to bypassing the AHRC Act processes, and create a situation where lodgement of a complaint would, to that extent, be unnecessary, undermining the whole statutory scheme.

121    Mr Burston submits that Ms Hanson’s argument that the alleged act of victimisation by lodging a complaint with the AHRC is the same as the prior counter-allegations cannot be accepted given that it is a different act at a different point in time, and further that the material facts relied upon are not either the same or substantially the same. Finally, he argues that Ms Hanson does not explain how a subsequent and separate complaint by him can properly be characterised as forming part of her complaint.

122    I am satisfied that the arguments advanced by Mr Burston are correct and should be accepted. Mr Burston’s complaint to the AHRC was separate and subsequent to Ms Hanson’s complaint. It was not incorporated into her complaint merely because Mr Burston referred to it. She had the option of amending her complaint to refer to his complaint, but did not do so. It is also not to the point that his complaint referred to the same allegations that she had made against him, because the conduct said to constitute victimisation took place on or about 12 June 2020. Without the necessary amendment of her complaint, that conduct did not form any part of her complaint.

123    With this conclusion in mind, I do not need to determine whether Mr Burston would also have been protected by s 48(3), although I am inclined to the view that he would not have been. The terms of s 48(3) afford protection by reason only that the complaint was made, or a document or information was furnished or the evidence was given. Ms Hanson’s argument is that it was not only the fact that the complaint was made, but that it was made for a proscribed purpose, so as not to fall within the protection given by s 48(3).

124    Nor do I need to determine the genuine steps statement omission, but I would not be inclined to the view that this alone would have been a barrier to this claim being made.

125    It follows from the foregoing on this topic that s 46PO(3) stands as an insurmountable barrier to Ms Hanson relying upon [19], [20], [21(e)], [30], [31] and [32(e)] of the APOC. They must therefore be summarily dismissed.

Reasonable prospects issue

Summary dismissal of the entire proceeding based on the substantive allegations of victimisation being misconceived and having no prospect of success

126    Mr Burston submits that if the Court concludes that it does have jurisdiction, summary judgment should still be entered upon the basis that, even taken at its highest, Ms Hanson’s case has no reasonable prospect of success. The argument proceeds upon the basis that in relying upon s 94(2)(g) of the SD Act, there are five elements, all of which must be established, arguing that there is no reasonable prospect in relation to any of them. If that characterisation is correct, is it only necessary for his argument to prevail for one of those elements. The five elements he identifies are as follows:

(a)    Ms Hanson made an allegation/s that Mr Burston engaged in sex discrimination or sexual harassment by reference to Part II of the SD Act;

(b)    Mr Burston knew Ms Hanson made the allegation/s at the time he did the alleged act of victimisation;

(c)    Mr Burston did the act, alleged to be an act of victimisation;

(d)    Mr Burston’s act subjected or threatened to subject Ms Hanson to detriment, being a detriment that is real and substantive; and

(e)    the substantial and operative reason each time Mr Burston engaged in the alleged act of victimisation was to subject Ms Hanson to a detriment or threaten to subject her to detriment she had made the allegation/s about his conduct breaching Part II of the SD Act.

127    Ms Hanson submits that this is an overcomplication of her case, and that a better and simpler way to set out what she needed to plead and to prove is:

(a)    that Mr Burston subjected her, or threatened to subject her, to a detriment that was substantive;

(b)    the existence of that detriment; and

(c)    that Mr Burston did so because of the matter identified in s 94(2)(g) of the SD Act, namely that Ms Hanson had made an allegation that he had done an act that is made unlawful by Pt II of the SD Act, with the allegation needing to be proven to be a substantial and operative reason for his conduct, and that he knew or at least believed the allegation had been made at the time of his conduct.

128    Mr Burston adheres to his submission that the elements he has identified need to be pleaded, so that he knows with sufficient precision the case that he has to meet, and that case that must therefore be proven, citing the summary of the requirements of pleadings articulated by Abraham J in Webb v Commonwealth [2021] FCA 1215 at [8]-[12]. I am inclined to the view that there is some force in this argument, given the seriousness of what is alleged, and the complicated way the unlawfulness under Pt II of the SD Act has needed to be pleaded and proven by reason of the lack of the employment relationship between Mr Burston and his staff at the time to permit reliance on s 28B. That said, it may be the five elements identified by Mr Burston are more granular than they need to be and may be stated in the more condensed manner of the three headings used in Mr Burston’s written submissions in chief, which is also closer to Ms Hanson’s formulation, but in a chronological way or cause and effect way, being:

(a)    one or more allegations made against Mr Burston by (or, I consider, on behalf of) Ms Hanson that engages s 94(2)(g) of the SD Act, and through that, the particular aspects of unlawful discrimination she relies upon;

(b)    identified detriment from Mr Burston to Ms Hanson; and

(c)    causation between each such allegation by Ms Hanson and corresponding alleged victimising conduct by Mr Burston towards her.

No allegation that engages s 94(2)(g) of the SD Act

129    It seems ultimately to be common ground, and indeed common sense, that the allegations made by Ms Hanson against Mr Burston did not have to refer to or identify the provision of Pt II of the SD Act by which the conduct alleged was unlawful, but that as a matter of law each such allegation had to meet that description. However, there is a live dispute as to whether the APOC sufficiently identifies this, even when read with the additional particulars to [9] set out in the Proposed FAPOC.

130    Reproduced below is [9] of the APOC, with the Proposed FAPOC making a minor amendment to add the phrase “of his female staff”, and a more substantial amendment by adding particulars in four additional paragraphs, as follows:

[9]    Each of:

(a)    the First Allegation;

(b)    the Second Allegation;

(c)    the Third Allegation;

(d)    the Fourth Allegation; and

(e)    the Fifth Allegation,

was an allegation that Mr Burston had engaged in sexual harassment of his female staff, and thus for the purposes of s.94(2)(g) of the Sex Discrimination Act 1984 (Cth) was an allegation that Mr Burston had done an act or acts that are unlawful by reason of Part II of the Sex Discrimination Act 1984.

Particulars

1.    Each of the First to Fifth Allegations was an allegation that Mr Burston had done an act or acts that are unlawful by reason of ss.26, 28G(2) and 28L of the Sex Discrimination Act 1984.

2.    For the purposes of the act or acts being unlawful as contrary to s.28G(2), Ms Hanson will contend that Mr Burston received services from his electorate office staff.

3.    For the purposes of the act or acts being unlawful as contrary to s.26 and s.28L, Ms Hanson will contend that in relation to his electorate office staff, Mr Burston was:

(a)    performing functions, or exercising powers, under a Commonwealth law, namely the Members of Parliament (Staff) Act 1984 (MoPS Act), and/or for the purposes of a Commonwealth program; 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.

4.    The relevant Commonwealth program is the 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. 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’.

131    Mr Burston’s complaint is that the five allegations Ms Hanson relies upon do not sufficiently identify why any constitute an allegation of acts that are unlawful by reference to an identified provision of Pt II of the SD Act, nor specify with sufficient particularity the act or acts he was alleged to have engaged in. I note that for this exercise I proceed upon the basis that the third allegation concerning the text message sent by Ms Hanson to Mrs Burston is not going to be struck out by reason of the operation of s 46PO(3).

132    As to the first aspect, while it is true that the APOC is deficient in this respect, that has been partially rectified by the Proposed FAPOC and the identification of ss 26, 28G(2) and 28L. The live issue is whether that goes far enough to amount to a case that has reasonable prospects of success.

133    In Leach v Burston, Halley J considered the same issue, concluding that the claims before his Honour:

(a)    relying upon s 28G(2), could not succeed, in substance because of the absence of an employment relationship giving rise to the provision of services by one of Mr Burston’s staff, Ms Leach, to him, and her not providing such services as an independent contractor; and

(b)    relying upon s 28L (and in parallel, upon s 26), were at least arguable, noting that the pleading in that case was considerably more detailed than the bare references to ss 28L (and s 26) than the particulars to [9] of the APOC sought to be added by the Proposed FAPOC.

134    In relation to s 28G(2), Halley J in Leach v Burston reasoned (the applicant being Ms Leach, upon whom Ms Hanson relies as an alleged victim of sexual harassment by Mr Burston, the other alleged victim relied upon by Ms Hanson, Ms Vairy, being in the same legal position):

[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.