Federal Court of Australia

Constantinou v Australian Federal Police [2024] FCA 123

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By an originating application dated 7 July 2023, the applicant (Mr Constantinou) seeks relief against the Australian Federal Police (AFP or respondent) in respect of alleged acts of racial discrimination contrary to ss 9, 10 and 18C of the Racial Discrimination Act 1975 (Cth) (RDA). Mr Constantinou seeks by way of relief:

(a)    an unreserved written duly authorised apology from the respondent with no disclosure restriction;

(b)    anti-racism training coordinated through the Australian Human Rights Commission (AHRC) via the “It stops with me” campaign;

(c)    consent training for members employed by the respondent; and

(d)    support with ongoing medical/psychiatric assistance.

2    Mr Constantinou was employed by the AFP between April 2002 and December 2021. On 7 October 2022, Mr Constantinou filed a complaint with the AHRC alleging unlawful discrimination by the AFP. The complaint alleged seven acts of racial discrimination which occurred in the period from late 2002 until 2014. Hence, Mr Constantinou did not lodge his complaint with the AHRC until some 8 years after the most recent alleged act, and some 20 years after the earliest alleged act. The AHRC dismissed his complaint principally on the ground that it was lodged more than 24 months after the alleged acts took place. Mr Constantinou now seeks to pursue his complaint in the Federal Court. Pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), that application cannot be made without leave of the Court.

3    In support of his application, Mr Constantinou filed two affidavits: one sworn by him on 3 October 2023 and one affirmed by him on 15 January 2024. Those affidavits also contain Mr Constantinou’s written submissions, which I have considered. The respondent filed written submissions dated 7 December 2023 and filed two affidavits of Matthew David Baillie, sworn on 7 December 2023 and 1 February 2024. Mr Baillie is a Principal Lawyer of the AFP.

4    The application was heard on 1 February 2024. On 31 January 2024, the parties provided the Court with a proposed form of consent order. By that proposed order, the parties consented to leave being granted by the Court with respect to one of Mr Constantinou’s seven allegations (the sixth allegation as described below) and leave being refused in respect of the other allegations.

5    In exercising the discretion to grant leave under s 46PO(3A)(a), the Court must weigh a number of factors, as discussed below. The respondent’s consent to the grant of leave is a relevant consideration, but is not determinative. At the hearing of the application, I invited the parties to advance submissions on the grant of leave on the basis proposed in the consent orders (in respect of the sixth allegation).

6    Having considered all relevant matters, and for the reasons set out below, leave will not be granted and the originating application will be dismissed.

AHRC Complaint

7    On 7 October 2022, Mr Constantinou filed a complaint with the AHRC alleging unlawful discrimination by the AFP, including that:

(a)    he was discriminated against because of his race;

(b)    he experienced racial hatred;

(c)    he was discriminated against in his employment because of his religion; and

(d)    his human rights were breached by a Commonwealth government body.

8    Mr Constantinou made seven allegations in his complaint to the AHRC as follows (with minor typographical errors corrected):

1.    Late in 2002 or early 2003 on being posted to the Woden Police Station in Canberra after my AFP Recruit course which I commenced in April 2002, I was advised by a police officer, Matthew Gale, who was also my housemate, of an image that had been posted on some walls of the police station. At the station I observed an image of a large rotund, hairy, black moustached male, with olive complexion wearing black speedos and a large gold crucifix with chunky gold chain around his neck. Underneath this image was the word ADONIS (Image attached to F72). I immediately understood that the image depicted myself as I was identified as Adonis by various members of the station (including emails). I felt uncomfortable and humiliated at the time that a caricature which was unflattering highlighting my ethnicity and my religion (It was well known that I wore a gold crucifix under my uniform) was posted on a number of walls of the Police Station through which some members of the public may have supervised access apart from the Police and civilian members working at the station. I had never been the subject of such ridicule in previous employment or workplaces, including volunteering in the Country Fire Authority and serving in the Australian Army Reserve, however been newly appointed to the role and subject to a probationary period I decided not to complain or report the matter apart from a meeting with the Station Sergeant at the time who said “welcome to the AFP” which I understood at the time referring to this practice as being common. Highlighted by the fact that there were very few AFP members from a non anglo-celtic background. I was subsequently referred to as Bling of King or Bling by other AFP members. I did not explicitly consent to being referred to by these terms. I accepted that some members in the AFP were known by their nicknames but nothing related to their race.

2.    Between 2002 and 2006 whilst undertaking Uniform/Plain clothes policing in the ACT I was subjected to a number of incidents where I was referred to as a wog by AFP members. I either ignored them or challenged them at the time. I was also referred to as ‘Choco’ which is apparently a racist term, and ‘Wheelbarrow’ due to length of my surname which few in the AFP mispronounced or made no effort to. I did not explicitly consent to being referred to by these names although I appropriated some to limit its effects on me amongst my team mates at the time. I did not report these incidents given my previous experience.

3.    In 2005 I was reported by my then Sergeant Zielonko to the Belconnen Station Sergeant Trevor Coutts for being out of uniform as my chained gold crucifix had slipped out of my patrol shirt during my attendance at work. I was ordered to attend a meeting with the Station Sergeant and explain why I was out of uniform breaching the AFP Uniform guidelines. I always tried to ensure my crucifix remained under my shirt and was placed on a smaller chain just below my throat line. On attendance at his office he was unaware of the report and when I explained the reason I was in his office and showed him my crucifix he immediately dismissed the matter without any further discussion. I noted in my time that other members wore religious items (e.g. St Christopher’s Medal) but were to my knowledge never reported for the same reason. Despite uniform provisions in other Police forces permitting cultural and/or religious attire, there was no such provision in the AFP uniform regulations at the time. I felt targeted for wearing my religious item but satisfied that the Station Sergeant deemed the matter trivial. Details of these interactions would either be located in the AFP email system or members’ notebooks/diaries.

4.    Soon after transferring to Melbourne Airport Policing in September 2006 I was being referred to by my team as ‘Habib’. I have never been referred to by this name but presume that it may have been related to my middle eastern appearance. I did not explicitly consent to being referred to by this name but I adopted the term referring to my team mates as ‘Habib’ in order to appropriate the term. I continued using the term over the years when addressing my close team mates. Material submitted by the AFP in the Comcare matter alleges that this term is inappropriate. By this reasoning I felt offended given its reference to me in 2006 especially when Counsel for the Respondent in the matter commenced my cross-examination by referring to me as Habib.

5.    Sometime in 2009 a small framed photo of my young sons, placed in my workspace, was defaced. Moustaches were drawn on their faces. I did not report it and since the office was largely accessible to the entire workforce I could not ascertain the culprit. From that point on I refrained from placing anything personal in my workspace. Sometime in 2010 a colleague in the office, Michelle Richards, showed me an image that she located in the police station that appeared similar to the image in paragraph 1. I told her about my experience in the ACT and she sympathised. I did not observe this image elsewhere in the police station.

6.    In January 2014 whilst working at Darwin Airport in a Uniform Policing Role I noticed a framed photo of me placed in a hallway of police station titled MOKBEL, next to the photos of other AFP Commissioned officers, a hallway through which some members of the public may have supervised access apart from the Police and civilian members working at the station. The details of subsequent events are detailed in an F72 Fair Work Commission draft document attached to this complaint. Suffice to say that I did suffer humiliation at the time and that the image was removed after 3 weeks. In June 2014 I observed the same photo of me hung in the same hallway without the MOKBEL reference. I took action with the assistance of my union, the Australian Federal Police Association (AFPA) and prepared an antibullying application before the Fair Work Commission (F72). The F72 application details the personal effect on me. Interaction with AFP HR via the AFPA I believe ultimately led to the apparent intervention of AFP Deputy Commissioner Leanne Close who contacted me via phone and stated that she would deal with the matter. There are no emails or other correspondence related to this intervention. I departed Darwin Airport shortly after thereby removing the jurisdiction of the FWC since there was no further exposure to bullying. An email from a team mate at the time also made reference to this name. MOKBEL being a convicted criminal with a similar European appearance obviously presented racist overtones in the display of this image.

7.    Part of an AFP submission to the Comcare matter from one of my supervisors in Papua New Guinea alleges that I had ‘gone native’. This reference obviously has racist connotations especially within the framework of the AFP’s mission in Papua New Guinea. The context within this was submitted is particularly offensive to the PNG culture and PNG police officers. I took particular offence to this statement as detailed in my interactions with medical practitioners. Oral evidence provided by AFP members in the Comcare matter suggests this attitude to PNG culture and PNG police officers was prevalent should the AHRC deem it fit to allow the provision of transcripts.

9    In these reasons, the allegation in paragraph 6 above is referred to as the “sixth allegation” and is the subject of the parties’ proposed consent orders.

10    The AHRC considered the information provided by, and on behalf of, Mr Constantinou. On 9 May 2023, a delegate of the President of the AHRC issued in writing to Mr Constantinou a notice of termination, pursuant to s 46PH(2) of the AHRC Act. The notice of termination stated that Mr Constantinou’s complaint was terminated pursuant to ss 46PF(1)(b) and 46PH(1)(b), on the ground that the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place.

11    In the statement of reasons accompanying the notice of termination, the delegate did not allow Mr Constantinou to proceed with a complaint concerning an alleged breach of human rights or alleged disability discrimination due to insufficient particulars of such allegations being provided. Similarly, the delegate did not consider further matters raised by Mr Constantinou in submissions filed in support of his principal complaint. Similarly, in relation to the allegation in paragraph 7 of Mr Constantinou’s complaint (set out above), the delegate concluded that there was insufficient information to support a reasonably arguable claim of racial discrimination or racial hatred as required by s 46P(1A) of the AHRC Act.

12    In relation to the remaining allegations, a significant factor for the decision to terminate Mr Constantinou’s complaints was the length of delay in lodging the complaints and the potential impact of that delay. The delegate’s reasons concerning delay were as follows:

Length of the delay in lodging the complaint and the potential impact of this delay

The events set out in Mr Constantinou’s complaint span between 2002 and 2014.

However, Mr Constantinou did not lodge the complaint with the Commission until 7 October 2022; that is, approximately 8 to 20 years after the alleged acts occurred. This is a very significant delay in bringing the complaint to the Commission.

Time frames relating to the lodgement of complaints or commencement of litigation are based on concerns about the impact of delay on the fairness of the process; as with the passage of time, people central to allegations may no longer be available or accurately recall events, and other information to support or refute allegations may have been lost or destroyed.

While Mr Constantinou has provided the Commission with pictures of the photographs referenced in his complaint, Mr Constantinou’s complaint refers to a range of other alleged acts in the period 2002 – 2009 and it appears Mr Constantinou did not make formal complaints to the AFP about any of the alleged acts prior to January 2014. Further, in relation to his complaint to the AFP in 2014, the provided documents suggest that this matter was resolved in-house and it does not appear any inquiry or investigation was undertaken. I am therefore concerned about the apparent lack of contemporaneous records and the likelihood that due to the significant time that has elapsed, people who could support or refute aspects of Mr Constantinou’s version of events would be uncontactable or may not accurately recall events.

The provided documents also suggest that Mr Constantinou was of the view that the issues he raised with the AFP in 2014, which included reference to alleged acts in 2002-2009, were dealt with by the AFP at that time. I note that in Mr Constantinou’s statement to the AAT he said, ‘I have been subject to previous bullying episodes in the AFP when stationed in Canberra and Darwin which resulted in a F72 Application for an order to stop bullying to the Fair Work Commission in November 2014. This was circumvented by the involvement of the AFP Deputy Commissioner Leanne Close who was successful in putting a stop to the bullying behaviour’.

Therefore, the AFP may be of the view that the matters raised by Mr Constantinou in this complaint were resolved and finalised in 2014.

In light of the above, I am concerned about the impact of the significant delay in lodging the complaint on the ability to conduct a fair inquiry into the complaint.

13    The delegate also considered, and rejected, Mr Constantinou’s submissions concerning the reason for delay. The reasons for rejecting those submissions were as follows:

Reasons for the delay

I understand Mr Constantinou says the delay in lodging this complaint was due to: concerns about possible negative impacts on him/his employment; his concern the incidents did not reach the ‘serious and profound’ test under section 18C of the RDA; and other action he had on foot - in particular, his Comcare proceedings which were only finalised by the AAT in July 2022.

The provided documents support that Mr Constantinou had the assistance of his union in 2014 and again in 2021, and legal representation in relation to his Comcare proceedings in the AAT. However, Mr Constantinou says his union did not advise him in relation to any potential causes of action under federal discrimination law and potential complaints to the Commission were not discussed with his lawyer.

I acknowledge the points raised by Mr Constantinou. However, I am aware that in 2005, Mr Constantinou made a complaint to this Commission about the AFP which alleged racial discrimination in the selection of staff for overseas deployment. Therefore in 2005, Mr Constantinou was aware of the Commission and the Commission’s processes and was able to pursue a complaint. The documents provided by Mr Constantinou also indicate that in 2014, he was aware of the possibility of lodging a complaint with the Commission. I note that in an email Mr Constantinou says he sent to his supervisor in January 2014, he refers to the subject matter of his complaint being ‘now also in the purview of Comcare and not just the Human Rights Commission’. In an email to his union on 9 September 2014, Mr Constantinou also refers to the possibility of a complaint to the ‘Human Rights Commissioner’.

In relation to Mr Constantinou’s reference to barriers arising from his Comcare proceedings, the Commission is not aware of any provision which prevents a person from pursuing a complaint of discrimination with this Commission while a workers compensation claim is on foot. I understand Mr Constantinou also claims he was prevented from lodging his complaint earlier because of limitations on using material before the AAT for another purpose. However, the Commission understands that the ‘implied undertaking rule’ Mr Constantinou appears to be referring to, only applies to documents provided to the AAT in specific circumstances - for example, pursuant to a direction or summons issued by the AAT. Also, a request can also be made to the AAT to release such documents for another purpose.

Overall, the information before me suggests that Mr Constantinou could have contacted the Commission to obtain information and could have lodged, or sought assistance to lodge, a complaint with the Commission much closer to when the alleged acts occurred. Therefore, I am not minded to disregard the significant delay in lodging the complaint.

14    The delegate also noted that Mr Constantinou had unsuccessfully pursued several other applications for relief, before Comcare and the Fair Work Commission, in relation to his employment with the AFP.

Legislative framework

Racial Discrimination Act 1975 (Cth)

15    Mr Constantinou relied on ss 9, 10 and 18C of the RDA.

16    Sections 9 and 10 are found in Pt II of the RDA, which is headed “Prohibition of racial discrimination”.

17    Section 9 of the RDA relevantly provides:

9    Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

…

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

…

18    The “Convention” is the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), which is reproduced as the Schedule to the RDA. Article 5(e)(i) of the Convention relevantly protects the right to “just and favourable conditions of work”.

19    Section 10 of the RDA relevantly provides:

Rights to equality before the law

(1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)    A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

…

20    Section 18C is found within Pt IIA of the RDA, which is headed “Prohibition of offensive behaviour based on racial hatred”. Section 18C provides:

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a)    the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)    the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:    Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or

(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

21    Conduct captured by s 18C(1)(a) is conduct that has “profound and serious effects, not to be likened to mere slights”: Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [16] (Kiefel J); Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [70] (French J).

AHRC Act

22    Division 4 of Part II of the AHRC Act is titled “Functions relating to equal opportunity in employment” and governs the functions and powers of the AHRC in relation to that subject matter. Section 31(b) confers the function on the AHRC of inquiring into any act or practice that may constitute discrimination. Section 32(1) stipulates that, subject to subsections (2) and (3), the AHRC is to perform the function referred to in paragraph 31(b) when (amongst other things) a complaint is made in writing to the Commission. Section 32(3)(c)(i) provides:

(3)    The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

…

(c)    in a case where a complaint has been made to the Commission in relation to the act or practice:

(i)    the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice;

23    Part IIB of the AHRC Act establishes a framework for redress for unlawful discrimination. The expression “unlawful discrimination” is defined in s 3(1) to include any acts, omissions or practices that are unlawful under Part II or IIA of the RDA.

24    Section 46P sets out the requirements for lodging a complaint, relevantly as follows:

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 1:    Unlawful discrimination is defined in subsection 3(1).

Note 2:    Under section 46PZ, a complaint may be taken to be lodged with the Commission if all or part of a complaint is transferred from the Inspector‑General of Intelligence and Security under section 32AG of the Inspector‑General of Intelligence and Security Act 1986.

(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.

…

25    Section 46PD provides that where a complaint is made to the AHRC under s 46P, the AHRC must refer that complaint to the President.

26    Section 46PF governs the process once a complaint is referred to the President, relevantly as follows:

46PF    Inquiry by President

(1)    Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:

(a)    consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and

(b)    if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and

…

(1A)    For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).

(1B)    If the President terminates the complaint under paragraph (1)(b), the President must comply with the notification requirements of subsections 46PH(2), (2A) and (3).

…

27    Section 46PH sets out the grounds upon which the President may terminate a complaint, and procedural steps following termination, relevantly as follows:

46PH    Termination of complaint

Discretionary termination of complaint

(1)    The President may terminate a complaint on any of the following grounds:

…

(b)    the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place;

(c)    the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;

…

Notification

(2)    If the President terminates a complaint, the President must notify the complainants in writing of the termination and of the reasons for the termination.

(2A)    A notice under subsection (2) must include a statement explaining that the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) can award costs in proceedings under section 46PO.

…

28    Section 46PO provides for applications to be made to the Court, relevantly as follows:

46PO    Application to court if complaint is terminated

Making an application

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

…

(3)    The unlawful discrimination alleged in the application:

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

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

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; …

…

Applicable principles governing the grant of leave

29    The AHRC terminated Mr Constantinou’s complaint pursuant to ss 46PF(1)(b) and 46PH(1)(b). Leave is therefore required for Mr Constantinou to make an application to this Court. The principles to be applied in considering the grant of leave have been considered in a number of cases.

30    In James v WorkPower Inc [2018] FCA 2083, Mortimer J (as the Chief Justice then was) made the following observations about the discretion to grant leave:

31    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding … or to issue a proceeding …, the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

32    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

31    Following a discussion of the text, history, and structure of Part IIB of the AHRC Act, her Honour then went on to conclude as follows:

37    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

38    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

32    Her Honour’s construction and application of the discretion to grant leave has been endorsed in many subsequent decisions of this Court: see by way of example Budini v Sunnyfield [2019] FCA 2164 (Budini) at [50]-[51] (Charlesworth J) and Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 (Sivwright) at [35]-[38] (Feutrill J).

Merits and a “reasonably arguable” case

33    As was made clear in WorkPower at [37], it is relevant to the exercise of the Court’s discretion to consider whether the claims made are “reasonably arguable and are – at the least – not fanciful”. Her Honour also said at [39] that it would be “a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination”, because such issues are to be determined at trial. The Full Court (Collier ACJ, Rangiah and Thomas JJ) recently qualified that statement, observing that there may be circumstances where a detailed evaluation of the merits is appropriate: Weir v Telstra Limited [2023] FCAFC 196 at [58] (Collier ACJ, Rangiah and Thomas JJ), citing Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [18]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

34    Notwithstanding that there may be circumstances where detailed evaluation of the merits is appropriate, the leave requirement is designed to remove from the Court applications where the use of the resources of the Court and the parties would be disproportionate to the overall merit of the complaint. As Feutrill J observed in Sivright at [39] and [100]-[101]:

[D]etailed arguments on merits of the kind that were undertaken on the application in this case are to be discouraged. Applications for leave should be capable of determination relatively quickly and questions as to whether or not there is arguable merit in an application should not, in general, require extensive argument and (or) voluminous evidence as was produced in support of and in opposition to the application in this case. Detailed argument and extensive evidence on an application for leave tends to undermine the purpose of s 46PO(3A) as a ‘filter’.

…

I approach consideration of the merits of the application for leave from the stand-point that s 46PO(3A) is a filter. It is intended to remove from consideration by the Court applications where use of the Court’s resources (and the parties’ resources) is disproportionate to the merits of the alleged unlawful discrimination. However, in the exercise of the Court’s discretion to grant leave, it is not generally appropriate to undertake a detailed examination of the merits of the proposed application. Nonetheless, there may be circumstances in which it is appropriate to undertake a close examination of the legal or factual issues the applicant proposes to advance to determine if the allegations are ‘reasonably arguable’.

I also approach consideration of the merits of the factual issues the applicant proposes to advance from the perspective that, in general, it is not appropriate for the Court to attempt to resolve conflicts of affidavit evidence on an interlocutory application … Typically, on an interlocutory application, the question of whether it discloses ‘a serious question to be tried’ or a claim or defence has ‘reasonable prospects of success’, is answered on the basis that the statements of fact contained in the affidavit(s) on the application are accepted as true … However, ‘this does not mean that [the Court] is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be’ …

35    As to whether a claim is “reasonably arguable”, Katzmann J in Chircop v Technical and Further Education Commission [2022] FCA 1015 at [102] and [104] made the following relevant observations:

A claim will be reasonably arguable if there is a “rational factual substratum for the allegations”, that is, there is some “factual basis” for the claims, even at the threshold level required for leave …

…

I am mindful of the need to only undertake an impressionistic assessment of Mr Chircop’s claims and the facts supporting them in assessing whether leave should be granted, without embarking on a detailed consideration and determination of the merits. Nonetheless it is necessary at least to determine whether there is a factual and legal basis for the claims.

Delay

36    Delay, and any explanation for delay, is a relevant consideration in exercising the discretion to grant leave pursuant to s 46PO(3A)(a): see Budini at [58]-[59] (Charlesworth J); and Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080 at [23]-[26] (Gleeson J). In Sivwright, Feutrill J made the following observations at [41] and [172] (citations omitted):

It is also to be borne in mind that an important policy inherent in s 46PH(1)(b) is that of ensuring that allegations of unlawful discrimination are made promptly. Delay in commencing proceedings may result in prejudice that is insidious and unable to be positively proved. Nonetheless, the extent to which insidious prejudice resulting from delay is a factor, or important factor, to be taken into account in considering whether leave should be granted may depend upon the extent to which notice of the allegations in question have been given to the respondents to the complaint within a reasonable period of time. Adequate notice may enable respondents to take appropriate steps to collect and preserve relevant evidence before any proceedings in the Commission are commenced.

…

Delay and any explanation for delay in making a complaint to the Commissioner is manifestly a relevant consideration in the exercise of the discretion to grant leave under s 46PO(3A). However, delay, even unexplained delay, is not in and of itself a determinative factor.

37    The foregoing statements reflect the well-recognised concern of the impact of delay on the quality of justice. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J explained at 551 (citations omitted):

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[where there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

Consideration of the sixth allegation

38    As noted earlier, immediately prior to the hearing the parties provided the Court with a proposed form of order by which the parties indicated their agreement to leave being granted with respect to the sixth allegation made by Mr Constantinou and that leave otherwise be refused and the proceeding dismissed. The effect of the parties’ agreement was to narrow the originating application made by Mr Constantinou to an application in respect of the sixth allegation.

39    Notwithstanding the parties’ agreement, s 46PO(3A)(a) requires the Court to determine whether leave should be granted for the application to proceed based on the considerations referred to earlier. The fact that the parties agree to leave being granted is relevant to, but not determinative of, the Court’s decision. The Court must consider whether it is in the interests of the administration of justice for leave to be granted. In the present case, the factors that have most relevance are the merits of the complaints, including the nature and extent of the alleged unlawful discrimination, and the delay in bringing the complaint, including the reasons for delay and the effects of the delay.

The nature and extent of the alleged unlawful discrimination

40    The substance of the sixth allegation is as follows. In January 2014, while working at Darwin Airport, a framed photograph of Mr Constantinou, annotated “TONY MOKBEL”, was hung in a hallway through which some members of the public may have had supervised access. The photograph was removed within three weeks, but later in mid-2014 Mr Constantinou observed the same photograph (albeit without the annotation) hung in the same hallway. Mr Constantinou believed that the display of the photograph “obviously presented racist overtones”.

41    For the purposes of this application for leave, I accept on a prima facie basis that the events as described by Mr Constantinou occurred. There is photographic evidence which provides support for the allegation that a photograph of Mr Constantinou annotated “TONY MOKBEL” was hung near other framed photographs of AFP personnel. The evidence does not, however, establish the location at which the photograph was hung (and whether the photograph was able to be viewed by members of the public) and nothing is known about the circumstances behind the creation of the photograph, including the identity of the person or persons responsible for creating it and their motivation in doing so.

42    On 22 January 2014, Mr Constantinou sent an email to his then supervisor, Superintendent Andrew Wharton, requesting that the photograph be removed. In the email, Mr Constantinou stated: “I reiterate that I do not take offence and that I understand the light-heartedness of the matter however it skirts very close to the current bullying provisions of the OHS Act”.

43    In the second half of 2014, Mr Constantinou received assistance from the Australian Federal Police Association (AFPA), the trade union which represents AFP employees, in preparing a draft “Stop Bullying Application” to be filed with the Fair Work Commission. On 9 September 2014, an officer with AFPA corresponded by email with Mr Constantinou about his complaint. On the same day, Mr Constantinou replied as follows:

I have finalised my bullying claim (FWC Form 72 attached) and am currently considering my options given the numerous opinions provided. I realise my claim may have a detrimental effect on some members (especially AFPA members) and to this extent would be satisfied if the AFPA can informally raise this claim with AFP HR to address the issues raised. My expectations would in the least be satisfied with an All staff email reiterating the inappropriateness of bullying in the workplace. I have communicated with HR and advised that I would be submitting a claim (their response below). If you believe that this outcome will not be forthcoming or that my claims would be better addressed with a complaint to the Human Rights Commissioner, please advise.

44    It is apparent from that email that Mr Constantinou was aware in 2014 that he had the option of making a complaint to the AHRC but elected not do so.

45    Ultimately, Mr Constantinou also elected not to make a bullying complaint with the Fair Work Commission. That decision followed discussions between Mr Constantinou and AFP staff about his options. Relevantly, an email dated 20 November 2014 from Assistant Commissioner Leanne Close records action taken by the AFP with respect to Mr Constantinou’s complaint. The email stated, in part:

… I just telephoned Theo Constantinou and discussed the complaint he raised through the AFPA and now with HR.

I advised him that the behaviours he experienced in Darwin are not appropriate and will not be tolerated. I thanked him for bringing the matter to our attention so it can be dealt with. It appears he is mostly disappointed with what he perceived as the lack of action by former Superintendent Andy Wharton and that no emails were sent out to staff at the time.

I said I will be following this up through our Darwin management team and will personally tell all staff when I get to Darwin, as well as sending an email, that these sorts of behaviours are not acceptable and will not be tolerated. If people do not like working and behaving in accordance with the AFP values, they don’t need to remain as part of the AFP.

46    In 2018, Mr Constantinou submitted a Comcare claim for psychological stress injury related to workplace bullying and discriminatory behaviour. In a statement made in support of that claim, Mr Constantinou stated that Assistant Commissioner Close’s involvement in respect of the Darwin conduct the subject of the sixth allegation “was successful in putting a stop to the bullying behaviour”.

47    On the basis of the material that is presently before the Court, the sixth allegation can be characterised as bullying conduct founded upon a racial stereotype. The conduct carried the implication that Mr Constantinou had a similar appearance to Tony Mokbel, a criminal convicted of serious drug offences. The purpose of the conduct is unknown, but understandably caused offence to Mr Constantinou as a serving officer of the AFP. Despite that, the sixth allegation should properly be characterised as a singular incident and there is no evidence that it had a profound and serious effect upon Mr Constantinou, beyond causing offence. The conduct was addressed by the AFP, albeit belatedly, and put a stop to what Mr Constantinou described in 2014 as bullying behaviour.

Delay in bringing the complaint

48    There has been very substantial delay in the bringing of the complaint to the AHRC. The relevant events occurred in January and mid-2014. Mr Constantinou lodged his complaint with the AHRC more than eight years later in October 2022.

49    Mr Constantinou’s explanation of the delay is understandable, but does not excuse the delay. Mr Constantinou submitted to the AHRC that his delay in making the complaint was due to: concerns about possible negative impacts on him and his employment; a concern that the incidents did not reach the “profound and serious” test to establish a contravention of s 18C of the RDA; and other ongoing action in relation to the allegations. At the hearing of this application, Mr Constantinou made the following submissions related to the reasons for delay with respect to the sixth allegation:

[M]y concern was at the time to stop the bullying … I have mental health concerns and obviously, racial trauma is one of them. But that particularly hurt me at the time. But I thought that there was very little I could do immediately to answer – to actually resolve the issue apart from the bullying. Even though I did raise the fact that it might actually fit within the Racial Discrimination Act. … [Y]ou just want to get on with your life. You don’t want to deal with these matters.

50    As Mr Constantinou acknowledged, he was aware in 2014 of the option of making a complaint to the AHRC but elected not to do so. Mr Constantinou should not be criticised for choosing to leave matters where they lay in 2014, but the choice not to make a complaint at a time proximate to the events weighs against the grant of leave.

51    The respondent submitted that it would be prejudicial to the respondent to allow Mr Constantinou to commence a proceeding in respect of the sixth allegation so long after the relevant events occurred. The respondent argued that claims under the RDA require a consideration of context. In the present case, the respondent would wish to investigate the events that occurred and the action that was taken at management level in response. That would require locating and interviewing personnel who have since departed the AFP (particularly Superintendent Wharton) and investigation of email communications at the time to the extent that was possible. Mr Baillie gave evidence about AFP record keeping and the steps required to investigate Mr Constantinou’s allegations. While the sixth allegation is the most recent of the substantive allegations, Mr Baillie’s evidence is that, to the extent that discoverable evidence may exist in the form of archived emails or diaries, it would be resource-intensive to search for and locate such material. I accept the respondent’s submissions and evidence concerning the prejudice caused by Mr Constantinou’s delay in making his application to the AHRC.

Weighing the relevant factors

52    Despite the parties’ agreement to the grant of leave with respect to the sixth allegation, in my view leave should be refused. It is not in the interests of the administration of justice for the application to proceed in the Court. The relevant events occurred a long time ago. The events were isolated. In terms of the RDA, the events are at the lower end of the scale. So much was conceded by Mr Constantinou at the hearing. At the time, Mr Constantinou (understandably) agitated a bullying complaint with the AFP. The complaint was resolved between the parties at that time. While Mr Constantinou’s election at the time not to make a complaint to the AHRC is understandable, the election weighs against the grant of leave today. The delay will cause considerable prejudice to the AFP in responding to the present proceeding.

53    Having regard to those factors, I consider that leave with respect to the sixth allegation should not be granted.

Conclusion

54    In conclusion, I refuse to grant leave under s 46PO(3A)(a) for Mr Constantinou to bring the originating application alleging unlawful discrimination by the respondent. It follows that I dismiss the originating application. At the hearing, counsel for the respondent informed the Court that it did not press any application for costs. I will accordingly make no order as to costs.

Associate:    

Dated:    23 February 2024