Federal Court of Australia

Rawson v South Metropolitan Health Service [2024] FCA 769

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is refused leave to make an application to this Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) concerning the allegations of unlawful discrimination under the Racial Discrimination Act 1975 (Cth) that were the subject of her complaint lodged with the Australian Human Rights Commission dated 29 October 2022 and terminated by the Commission on 25 July 2023.

2.    The originating application filed on 14 September 2023 is dismissed.

3.    The applicant pay the respondents’ costs as taxed or agreed.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    Ms Marie Rawson (the applicant) is an Aboriginal woman who was engaged as a volunteer at the Fiona Stanley Hospital (FSH) in Perth, Western Australia in 2017 and 2018. She alleges that, while she was engaged as a volunteer at FSH, she was subjected to discrimination based on her race by the then manager of the volunteer service.

2    In 2022, some years after the applicant had ceased to provide volunteer services at FSH, she lodged a complaint with the Australian Human Rights Commission. The complaint was terminated by a delegate of the President of the Commission on or about 25 July 2023.

3    On 14 September 2023, the applicant filed an originating application in this Court under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging unlawful discrimination by the respondents on the basis of her race within the meaning of the Racial Discrimination Act 1975 (Cth) (RDA). The applicant seeks relief in the form of financial compensation.

4    Section 46PO(3A)(a) of the AHRC Act requires that, following the termination of a complaint by the President, an applicant must be granted leave in order to make an application to the Court alleging unlawful discrimination, unless the complaint was terminated under s 46PH(1)(h) (on the ground that the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Court) or s 46PH(1B)(b) (on the ground that there is no reasonable prospect of the matter being settled by conciliation). In the present case, the applicant’s complaint was terminated without inquiry under ss 46PF(1)(b) and 46PH(1)(b) due to the applicant’s delay in lodging the complaint after the alleged acts, omissions or practices that are the subject of the complaint took place.

5    The applicant seeks leave to make her application to this Court under s 46PO(3A)(a). The respondents oppose the granting of leave and submit that the application should be dismissed with costs.

6    For the reasons set out below, I refuse to grant leave under s 46PO(3A)(a) for the applicant to make the application to the Court alleging unlawful discrimination by the respondents. Accordingly, the originating application must be dismissed.

Background

7    The events and circumstances giving rise to the applicant’s complaint occurred in 2017 or 2018 when the applicant worked as a volunteer at FSH in Perth, Western Australia.

8    The first respondent is the South Metropolitan Health Service (SMHS), which is part of the Western Australian Department of Health and is responsible for the delivery of public hospital services to the Southern Metropolitan regions of Perth, including at FSH.

9    The second respondent is Mr David Tomlinson, who is the manager of the volunteer service at Fiona Stanley Fremantle Hospitals Group, which is part of SMHS and includes FSH.

10    Although the precise dates on which the applicant commenced and ceased as a volunteer at FSH are not clear on the evidence before the Court, it appears that the applicant volunteered from around the beginning of 2017 until the end of 2018, during which time she attended approximately 125 volunteer shifts. Mr Tomlinson was the volunteer coordinator at FSH during this time.

The complaint to the Commission

11    On 31 October 2022, the applicant lodged a complaint with the Commission (dated 29 October 2022) in which she set out her belief that she had been discriminated against by FSH and Mr Tomlinson because of her Aboriginal race, that she had experienced racial hatred, and that she had been victimised because she had made a complaint or tried to make a complaint about discrimination.

12    The applicant stated that the alleged events giving rise to the complaint happened in 2017. The reasons given for the delay in lodging the complaint included the “Covid pandemic” and that the applicant had moved to Victoria following the events “as [she] was distressed and [she] wanted to escape from WA and this horrible experience”, as a result of which she had “depression and panic attacks”.

13    In the section of the complaint form headed “What happened?”, in which the applicant was asked to describe the event or events that she wanted to complain about, the applicant referred to an attached three-page letter setting out her complaint. The applicant also referred to meetings and correspondence with the office of the Ombudsman of Western Australia and the Western Australian Minister for Health in relation to racial discrimination against Aboriginal patients, and said that she had been hospitalised after she had a “breakdown” in December 2018. The applicant stated that she wanted changes to Government policy including the introduction of cultural training in hospitals.

14    The three-page letter of complaint recounted the following alleged circumstances:

(a)    The applicant had been one of 12 volunteers at FSH from January 2016, and the only Aboriginal volunteer. Among the tasks performed by volunteers was visiting patients in different wards within FSH, usually in pairs.

(b)    After the applicant had been volunteering for around one year, a new area was designated as “country patients”, to which the applicant was the only allocated volunteer and was required to visit the relevant patients on her own. The applicant told the volunteer coordinator (who was Mr Tomlinson, the second respondent) that the patients were “Aboriginal patients, not country patients” who were from “other states, metro regions, country and remote communities, they all have different needs”. Mr Tomlinson allegedly responded that having the applicant visit such patients was “like having an Italian volunteer visiting Italian patients”.

(c)    At some time in late 2017, when the applicant told Mr Tomlinson that she didn’t have time to visit the “country patients in state rehab”, she was “met with a stony silence”, rather than a reassurance that he would get a volunteer from the next shift to visit the patients. The applicant says that she was “unsettled and upset” by this response.

(d)    The applicant was still feeling uneasy about the term “country patients” and, in order to seek “clarity”, she asked Mr Tomlinson for his manager’s contact details. The applicant says that Mr Tomlinson then asked her whether she wanted to perform her other shifts and, when the applicant replied “No”, she assumed that he proceeded to delete her shifts on his computer. The applicant then accompanied Mr Tomlinson to the Aboriginal Liaison Office, where Mr Tomlinson is said to have “ranted angrily” while the applicant and the Aboriginal Coordinator “looked at each other confused”. On their way back to the staff room, Mr Tomlinson allegedly asked the applicant whether she was now happy, to which she said “No”.

(e)    The applicant subsequently engaged with Human Resources at SMHS, and met with Ms Taylor Carter, who was Mr Tomlinson’s manager. Although the applicant accepted an apology from Mr Tomlinson at the time, she said that she had since regretted it as she felt that the apology was not sincere. The applicant asked Ms Carter whether Aboriginal patients could be “acknowledged and recognised”, rather than referred to as “country patients”.

(f)    The applicant subsequently decided not to continue to volunteer at FSH. She made a complaint to the Equal Opportunity Commission of Western Australia about the treatment of Aboriginal patients, who she said had to endure living in a foreign environment for a long time without family visits or volunteer visits apart from herself since she began volunteering in 2017. She said that the Aboriginal Liaison Office was understaffed, and that she was “stressed, anxious and depressed” when she left FSH in 2018, both about the treatment of Aboriginal patients and about how she was treated in this environment.

(g)    The applicant’s complaint to Equal Opportunity Commission was forwarded to the Ombudsman, and resulted in the implementation of a new policy under which “ALL volunteers will visit ALL patients in 2020, including Aboriginal patients”. The applicant also thanked the Minister for Health “for implementing staff cultural training”.

(h)    The applicant stated that, in hindsight, she “was not treated in a culturally competent way”, and that this had “made it hard to provide a sufficient level of care”. This continued to have an impact on the applicant’s life. She was hospitalised in Fremantle in 2018, which she believes was “due to the treatment [she] suffered as a volunteer at [FSH]”, and began suffering from “depression and panic attacks” in April 2022 stemming from her experience at FSH.

15    In subsequent email correspondence with the Commission, the applicant confirmed that her complaint was about not being treated in a culturally competent way during her time as a volunteer at FSH. This was because Aboriginal patients were referred to as “country patients” until the applicant had raised that this was “incorrect terminology”, the failure of FSH to provide cultural awareness training, and the fact that volunteering caused the applicant a lot of stress as she was solely responsible for visiting all Aboriginal patients. The applicant gave details of her specific complaints about the conduct of Mr Tomlinson, including that he had dismissed the applicant’s concerns about Aboriginal patients and had spoken to the applicant “in a callous manner” about how Aboriginal patients from remote communities would be unable to operate a lift. The applicant repeated her complaint about Mr Tomlinson saying that having her visit “country patients” (who were all Aboriginal patients) was “like having an Italian volunteer visiting Italian patients”, which she said showed “a complete disregard for Aboriginal Cultural Awareness” and a lack of awareness of “cultural safety requirements for all different patients”. The applicant repeated her complaint about the incident involving the visit to the Aboriginal Coordinator’s office, adding that Mr Tomlinson did not speak to her directly and that his conduct was “aggressive”.

16    In her email to the Commission, the applicant also explained that her complaint to the Equal Opportunity Commission was made in relation to the treatment of Aboriginal patients, but that the complaint did not “progress” because it had been necessary to obtain the patients’ signatures. The applicant said that she did not complain to the Equal Opportunity Commission about her own treatment because she did not realise the effect that such treatment had on her until much later.

17    The applicant has previously raised matters arising from her time as a volunteer at FSH in correspondence to a range of public bodies.

(a)    The applicant made a written complaint to the Minister for Health. In a letter dated 7 March 2019, the Minister acknowledged the applicant’s valuable contribution as a volunteer at FSH, and stated that her cultural knowledge was “appreciated and valued”. The Minister stated that FSH had confirmed that all staff were required to complete “the Aboriginal Culture eLearning” and that additional cultural learning was being offered within FSH “with Aboriginal community peoples playing a strong role in this space”.

(b)    As mentioned above, the applicant’s complaint to the Equal Opportunity Commission was forwarded to the office of the Ombudsman. By letter dated 4 February 2020, a principal investigating officer indicated that SMHS had reviewed its “Volunteer Service – Daily Visits Guidelines” and amended its processes in response to the applicant’s complaints, so as to “enable Aboriginal patients to be identified and where appropriate, Aboriginal visitors to be matched with Aboriginal patients, where staffing allows”. The letter noted that SMHS had informed the Ombudsman’s office that it would welcome the applicant’s return to the volunteer service, and stated that the investigating officer had closed the file on the applicant’s complaint as the outcomes sought by the applicant had been achieved.

(c)    By a letter dated 1 September 2022, an officer in the Human Rights Unit of the Commonwealth Attorney-General’s Department (AGD) responded to a letter that had been sent by the applicant to the Prime Minister of Australia regarding her claims of racial discrimination while volunteering at FSH. The applicant’s letter had been referred to the Commonwealth Attorney-General. Responding on behalf of the Attorney-General, the AGD officer stated that the Government “does not condone racism in any way” and suggested that, if the applicant believed that she had been unlawfully discriminated against, she may wish to consider lodging a complaint with the Commission.

18    The applicant lodged her complaint with the Commission under s 46P of the AHRC Act on 31 October 2022 (the complaint).

Termination of the complaint

19    By a notice dated 25 July 2023, the applicant was notified under s 46PH(2) that a delegate of the President had decided to terminate her complaint under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act on the ground that the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place (the termination notice).

20    At the time that the applicant lodged her complaint, the applicable time period prescribed by s 46PH(1)(b) was six months, rather than 24 months. The Commission appears to have applied the period of 24 months for the lodgement of a discrimination complaint that was introduced by amendments to s 46PH(1)(b) which commenced on 13 December 2022: see Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), Sch 8, item 1 (Respect at Work Amendment Act). Those amendments brought the period for lodging a complaint in respect of age, disability or racial discrimination in line with that introduced by previous amendments in respect of sex discrimination complaints, in recognition of the challenges faced by persons subject to unlawful discrimination in lodging a complaint within six months of the conduct occurring: see [425] of the Explanatory Memorandum to the Respect at Work Amendment Act. As discussed below, there are good arguments that the delegate was correct to have had regard to the 24 month period under s 46PH(1)(b) as in force at the time of the decision. In any event, as the respondents’ submitted, even if the delegate had erred in relation to the applicable time period under s 46PH(1)(b), any such error would have been favourable to the applicant.

21    The applicant’s complaint was progressed by the Commission only as a complaint alleging racial discrimination, on the basis that the Commission considered that there was insufficient information to support a reasonably arguable claim of racial hatred or victimisation as defined in ss 18AA, 18C and 27 and of the RDA.

22    The delegate stated in the termination notice that the Commission had sent the applicant a letter dated 8 May 2023 setting out an assessment of the information before the Commission, and inviting the applicant to provide any further information or comments in support of her complaint, including any information to explain the delay in lodging the complaint. The delegate summarised the additional information that was provided by the applicant to the Commission on 27 May 2023. Among other things, the applicant stated that she was satisfied with the resolution of her earlier complaints about the treatment of Aboriginal patients at FSH, and that her complaint to the Commission was about her own treatment by the respondents, including poor, inadequate and culturally insensitive management by Mr Tomlinson. The applicant stated that the impacts of these events had become clear after she sought treatment from a psychologist, and that her concerns had not been resolved.

23    The termination notice contained a summary of the applicant’s complaint along the lines of that set out at paragraph 14 above, and set out the delegate’s reasons for decision. In deciding that it was appropriate to terminate the complaint under s 46PH(1)(b), the delegate had regard to the length of the delay in lodging the complaint, the potential impact of the delay on the Commission’s ability to conduct a fair inquiry, the reasons for the delay, and other remedies that had been sought by or were available to the applicant.

(a)    Length and impact of delay: The delegate noted that, while the applicant’s complaints were about events in 2017, the complaint was not lodged until 29 October 2022. The delegate considered that this significant delay might have an impact on the ability to conduct a fair inquiry in circumstances where “relevant people may no longer be contactable or may no longer accurately recall events and other information to prove or disprove allegations may have been lost or destroyed”. Further, the delegate noted that the applicant had accepted an apology about her treatment that was offered by the respondents and that, although the applicant claimed that this apology did not address her own treatment (as opposed to the treatment of Aboriginal patients), it appeared that the respondents may have been of the view that the matter had been resolved at that time.

(b)    Reasons for delay: The delegate acknowledged the issues raised by the applicant, including in relation to her health, but noted that she had been able to raise her concerns and seek assistance from the Equal Opportunity Commission and the Minister for Health, and was actively involved in the resolution of a complaint about such matters with the Ombudsman in the period from 2018 to 2020. The delegate found that “[o]verall, the information does not appear to sufficiently support that your circumstances were such that you could not lodge, or seek assistance to lodge, this complaint of racial discrimination closer to when the alleged acts occurred”.

(c)    Other remedies: The delegate noted that the applicant had taken other action in relation to the issues raised in in her complaint. Her complaint to the respondents at the time had led to her being offered an apology, which she had accepted. Her complaint to the Minister for Health about the support provided to Aboriginal patients had resulted in positive changes within FSH, and the complaint investigated by the Ombudsman had been resolved on the basis of changes to FSH’s processes.

Consideration

Legislative framework

24    Section 46P of the AHRC Act provides that a written complaint may be lodged with the Commission alleging acts, omissions or practices that constitute “unlawful discrimination” as defined in s 3(1), which includes discrimination under Pts II or IIA of the RDA. Section 46P(1A) and (1B) require that it must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination, and that the complaint must set out, as fully as practicable, the details of those alleged acts, omissions or practices.

25    A complaint under s 46P must be referred to the President (s 46PD), who is required by s 46PF(1)(a) to consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH. If the President is of the opinion that the complaint should be terminated, the President must terminate the complaint without inquiry: s 46PF(1)(b). Otherwise, the President must inquire into and attempt to conciliate the complaint: s 46PF(1)(c).

26    Section 46PH of the AHRC Act deals with the bases upon which the President may, or in some circumstances must, terminate a complaint. As in force at the time that the applicant lodged her complaint, s 46PH(1) provided as follows in relation to the discretionary termination of complaints:

46PH Termination of complaint

Discretionary termination of complaint

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

(a)     the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination;

(b)     the complaint was lodged:

(i)     in a case where the complaint relates to the Sex Discrimination Act 1984 – more than 24 months after the alleged acts, omissions or practices took place; or

(ii)     in any other case – more than 6 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;

(d)    in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(e)    the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;

(f)    in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(g)    the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;

(h)    the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).

Note:    An act, omission or practice may not be unlawful discrimination because an exemption applies (for example, section 18D of the Racial Discrimination Act 1975). Accordingly, consideration by the President of the question of whether an act, omission or practice is not unlawful discrimination will involve consideration of whether an exemption applies.

27    As mentioned above, with effect from 13 December 2022, the time period in s 46PH(1)(b) was amended by the Respect at Work Amendment Act to 24 months for all complaints, and not only those relating to the Sex Discrimination Act 1984 (Cth). The amending legislation did not contain a transitional provision in respect of that change to the time period which enlivens the ground for termination under s 46PH(1)(b). There is a question as to whether the amended provision is applicable to complaints that were lodged with the Commission prior to 13 December 2022. The presumption against retrospective operation is not necessarily attracted in so far as the President exercises the power to terminate a complaint under s 46PH(1)(b) as in force at the time of that decision, particularly in circumstances where the amendment was arguably concerned with matters of procedure and was in any event beneficial to complainants. Thus, after the amendment had commenced, there was no longer a power to terminate a complaint under former s 46PH(1)(b)(ii) on the ground that it was lodged more than six months after the alleged acts, omissions or practices took place; instead, the President had power to terminate a pending complaint that was lodged more than 24 months after the alleged acts, omissions or practices took place: compare, in relation to a power to extend time to commence proceedings, Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at 635-638 (Dixon CJ, with whom McTiernan J agreed), 648 (Menzies J), 650-651 (Windeyer J); Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471.

28    Section 46PO provides that an application alleging unlawful discrimination may be made to this Court only if a complaint lodged with the Commission has been terminated by the President under (relevantly) s 46PF(1)(b) or s 46PH. Such an application must be made within 60 days after the date of issue of the termination notice, or within such further time as the court concerned allows (s 46PO(2)), and the alleged unlawful discrimination must be substantially the same or must arise out of substantially the same acts, omissions or practices as were the subject of the terminated complaint (s 46PO(3)). The application must not be made unless, relevantly, the Court grants leave to make the application: s 46PO(3A)(a).

29    In so far as the applicant seeks to allege unlawful discrimination based on her race, s 9(1) and (1A) of the RCA provide as follows:

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.

(1A)     Where:

(a)     a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)     the other person does not or cannot comply with the term, condition or requirement; and

(c)     the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

30    To the extent that the applicant maintains her complaints of victimisation and racial hatred, ss 18AA and 18C of the AHRC Act provide:

18AA Victimisation

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

Note 1:    See also subsection 27(2) (offences relating to administration of this Act).

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

(2)    For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person:

(a)    refuses to employ the other person; or

(b)    dismisses, or threatens to dismiss, the other person from the other person’s employment; or

(c)    prejudices, or threatens to prejudice, the other person in the other person’s employment; or

(d)    intimidates or coerces, or imposes any pecuniary or other penalty upon, the other person;

by reason that the other person:

(e)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(f)    has given, or proposes to give, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

(g)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.

…

18C Offensive behaviour because of race, colour or national or ethnic origin

(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.

Applicable principles – leave under s 46PO(3A)

31    In James v WorkPower Inc [2018] FCA 2083 at [31], Mortimer J (as her Honour then was) stated that “a governing consideration” in the exercise of the discretion to grant leave under s 46PO(3A)(a) of the AHRC Act is the interests of the administration of justice, as is generally the case with other judicial discretions requiring leave to take a step in a proceeding. Her Honour articulated (at [37]-[38]) the following principles in relation to the assessment of the interests of the administration of justice in the context of applications for leave under s 46PO(3A)(a):

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. This is consistent with the language used in s 46P(1A). 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.

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    For the purposes of determining whether or not to grant leave under s 46PO(3A), it will often be inappropriate for the Court “to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination”, and arguable questions of fact or law may be left to be determined at trial: see James at [39] (Mortimer J). In this way, applications for leave should generally “be capable of determination relatively quickly” and “should not, in general, require extensive argument and (or) voluminous evidence”: Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 at [11], [39], [100] (Feutrill J).

33    However, there may be some circumstances in which a detailed evaluation of the merits, or a close examination of the legal or factual issues, is seen to be appropriate in order to determine if the allegations of unlawful discrimination by the respondents are reasonably arguable: Weir v Telstra Limited [2023] FCAFC 196 at [58] (Collier ACJ, Rangiah and Thomas JJ); Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [18]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [62]-[63] (Gordon, Edelman and Steward JJ); Sivwright at [100] (Feutrill J). Such an evaluation might be necessary in order to determine whether the proposed application has no reasonable prospect of success, on the basis that “it would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part”: Budini v Sunnyfield [2019] FCA 2164 at [52]-[53] (Charlesworth J). Nevertheless, the inquiry in which the Court is engaged in deciding whether to grant leave under s 46PO(3A) is distinct from the inquiry that is carried out on a summary dismissal application: Sivwright at [40] (Feutrill J).

34    Further, the merits of the claim and its prospects of success must be considered together with other factors relevant to the grant of leave. As Thawley J said in Makowski v Legal Profession Admission Board [2023] FCA 666 at [36]:

Ultimately, the case must be sufficiently arguable to warrant the grant of leave when considered together with any other factors relevant to whether leave should be granted. If the case is “fanciful”, leave would ordinarily be refused. If the case is “reasonably arguable”, and there is no other factor tending against granting leave, then leave would ordinarily be granted. There may be cases which do not fit neatly into either description.

(Emphasis added.)

Thus, it is necessary but not always sufficient to obtain leave under s 46PO(3A) to demonstrate that the claims made are reasonably arguable – see Matthews v Markos [2019] FCA 1827 at [37] (Abraham J):

… if a matter is considered to be reasonably arguable, the other relevant considerations do not fall away. Rather, the weight to be given to each of the relevant considerations will necessarily be case specific. Moreover, the content of each of the considerations referred to in James v WorkPower Inc may inform the significance of other considerations (e.g. delay may contribute to the assessment of whether a matter is reasonably arguable if it affects the ability to establish the factual basis of the claim, and may also inform the question of prejudice to the respondents).

35    The requirement to obtain leave under s 46PO(3A) before making an application alleging unlawful discrimination was introduced in 2017 by the Human Rights Legislation Amendment Act 2017 (Cth) (2017 amendments), as part of a suite of amendments to the processes for handling complaints under the AHRC Act that were intended, among other things, “to ensure that unmeritorious complaints are discouraged or dismissed at each stage of the complaints handling process, from lodgement to inquiry to proceeding to the Federal Court or Federal Circuit Court”: Revised Explanatory Memorandum to the 2017 amendments at [7]; see also Parliamentary Joint Committee on Human Rights, Freedom of Speech in Australia: Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) (28 February 2017), at [3.74]-[3.81], [3.149]-[3.154]; Chircop v Technical and Further Education Commission [2022] FCA 1015 at [92] (Katzmann J). The 2017 amendments also added requirements that the President must terminate a complaint if satisfied that it is “trivial, vexatious, misconceived or lacking in substance”, or that there would be no reasonable prospect that the Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination: see ss 46PH(1B)(a) and 46PH(1C).

36    In relation to the leave requirement under s 46PO(3A), the Explanatory Memorandum (at [39]-[40]) referred to “potentially significant costs” to which a respondent may be exposed “in defending an unmeritorious complaint”, as well as wasting “the limited resources of the court”, and continued:

In seeking leave of the court, an applicant will be required to explain why the matter should be allowed to proceed to substantive hearing. This additional step will ensure that allegations the subject of a complaint can only be litigated where there are reasonable prospects of success, limiting unnecessary impositions on time and resources, and avoiding prolonged uncertainty.

37    In this way, the requirement to obtain leave under s 46PO(3A) is designed to filter out those claims which, if they were to proceed to a full hearing, would occupy judicial resources and involve time and cost to the parties to an extent that is disproportionate to the claims sought to be raised (see James at [32], [37] (Mortimer J); Sivwright at [11], [39], [100] (Feutrill J)), including because those claims lack sufficient substance or merit, because their subject matter is trivial or unimportant, because they have been adequately addressed or resolved, or because they are old and stale.

38    I note that Abraham J in Matthews at [44] adopted a construction of s 46PO(3A) under which leave must be obtained before an application can be made under s 46PO so that, in order to comply with the time limit in 46PO(2), leave must be obtained within the 60-day period after the termination notice has been issued by the Commission. In other words, the filing of an application within that 60-day period seeking leave under s 46PO(3A), as was done by the originating application filed by the applicant in the present case, would not of itself be sufficient to comply with s 46PO(2). The relevant provisions of Div 34.8 of the Federal Court Rules 2011 (Cth) and the prescribed form of application (Form 116) are equivocal, no doubt because they pre-date the introduction of the leave requirement, but in any event such delegated legislation cannot affect the proper construction of the statutory provisions. It is unnecessary for me to form any view about the correctness of the construction of s 46PO(2) and (3A) that was adopted by Abraham J in Matthews. If it were otherwise in the interests of the administration of justice to grant leave under s 46PO(3A), an order could be made to grant leave nunc pro tunc or together with an extension of time, if that was necessary to ensure compliance with s 46PO(2): see Matthews at [45]-[46] (Abraham J).

39    The question of delay by an applicant in making a complaint alleging unlawful discrimination can be particularly relevant in assessing whether it is in the interests of the administration of justice to grant leave under s 46O(3A)(a). However, the period of 24 months under s 46PH(1)(b) is not in the nature of a limitation period qualified by a discretionary power to grant an extension of time, but rather is one of the grounds on which the President may exercise a discretion to terminate a complaint. Any delay beyond the prescribed period for lodging a complaint becomes a relevant, but not determinative, consideration on an application for leave to bring proceedings in this Court or in the Federal Circuit and Family Court of Australia (Division 2) alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

40    As Charlesworth J stated in Budini at [55] and [58]:

In the case of a complaint terminated on grounds of delay, the discretion to grant leave must be exercised having regard to the statutory objective of s 46PH(1)(b). It is that provision which empowered the Commission to terminate the complaint in the exercise of its discretion on the grounds of delay without undertaking any inquiry into its substantive merits or conciliating the underlying controversy.

…

Although not expressed as an absolute time limit by which complaints must be brought, the discretion conferred by s 46PH(1)(b) reflects a policy to ensure that allegations of unlawful discrimination are made promptly. That policy has been reinforced by more recent amendments reducing the period specified in s 46PH(1)(b) further still from 12 months to six months: Human Rights Legislation Amendment Act 2017 (Cth), s 39. The statute evinces an intention that controversies concerning unlawful discrimination are to be promptly quelled by a process of conciliation by the Commission as a specialist body in which the respondent may fairly participate and so achieve a non-litigious resolution if that can be done. The mischiefs to be avoided include the uncertainty arising from a prolonged untested allegation, and the spectre of a complaint taking a respondent by surprise, including by the complainant attaching a late allegation of unlawful discrimination to a pre-existing controversy. On a subsequent application for leave, it may be relevant to consider the extent to which the conduct of the complainant undermines these statutory objectives.

41    It may be noted in passing that the reduction of the time period in s 46PH(1)(b) to six months under the 2017 amendments to which Charlesworth J referred has since been superseded by amendments to increase the time period to 24 months. As discussed at paragraph 20 above, the extension of that period was largely in recognition of the challenges faced by many complainants in lodging a complaint within six months after the relevant conduct occurred. However, while the length of the period for lodging a complaint has been extended by these subsequent amendments, the underlying policy of encouraging the lodgement of complaints in a timely manner has not changed.

42    Thus, Feutrill J observed in Sivwright at [41]:

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: Budini at [58]-[59]. Delay in commencing proceedings may result in prejudice that is insidious and unable to be positively proved: Rossi v Qantas Airways Ltd (No 2) v [2020] FCA 1080 at [25]-[26]; see also Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551, 555 (McHugh J). 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.

The hearing of the application

43    The application for leave under s 46PO(3A) was heard on 7 May 2024. The applicant appeared at the hearing in person, and the respondents were represented by their solicitor who appeared remotely via Microsoft Teams.

44    In addition to the originating application (attaching copies of the complaint and the termination notice) and a statement of claim dated 14 September 2023, the applicant relied on her affidavits affirmed on 11 September 2023 and 24 January 2024 respectively.

45    The respondents relied on an affidavit sworn by Mr Tomlinson (the second respondent) on 22 February 2024 (Tomlinson affidavit).

46    The applicant’s affidavits attach copies of the complaint, along with other correspondence in relation to her allegations of unlawful discrimination (which I have summarised above).

47    The Tomlinson affidavit addresses the allegations made by the applicant. In summary, Mr Tomlinson deposes as to the following matters.

(a)    Volunteers at FSH perform a variety of services to support patients during their hospital stay, including visiting patients in hospital wards, assisting with ordering meals and providing support at mealtimes, operating the patient clothing store, and providing tailored support to patients through lived experience. Volunteers participate of their own free will, including choosing the frequency and times at which they volunteer. There are rosters on which the volunteers are rostered for their chosen period, day and duration, with shifts involving various tasks in different parts of the hospital. For some tasks, volunteers may be rostered in pairs.

(b)    There is an orientation and induction process for all volunteers. Mr Tomlinson says that the applicant attended a volunteer orientation and induction process during which he “used a real example” of an occasion when an Aboriginal patient had attended the hospital with her daughter, neither of whom spoke English or had been to a metropolitan area or seen multistorey buildings, and therefore “had never used a lift before or visited a food court”. Mr Tomlinson states that this example “was given in a positive way to demonstrate the additional needs of patients and how a volunteer can be of assistance to them”.

(c)    In the course of the applicant’s orientation and induction, Mr Tomlinson also explained that volunteers were moved through multiple roles within the hospital service and that they “would not for example, allow an Italian speaking volunteer to solely conduct visits with Italian patients”, unless there was an “identified need”. For such purposes, volunteers were asked to list any languages that they speak on FSH’s data management system. However, Mr Tomlinson states that FSH provides services to all individuals regardless of race, and that they would “only match a volunteer and a patient if the volunteer was rostered on a specific day and there was an identified need for a specific patient”.

(d)    Mr Tomlinson refers to a conversation that he had with the applicant on a later date where she informed him that she only wanted to visit Aboriginal patients, and he reiterated his earlier statement that they would not allow Italian speaking volunteers to visit Italian patients only. However, in order to facilitate the applicant’s request, Mr Tomlinson “suggested that she visit Country Patients because there was a higher likelihood that a higher proportion of those patients would identify as Aboriginal as opposed to patients from the metropolitan area”. According to Mr Tomlinson, “[t]he term ‘Country Patients’ is used to identify any patient that lives outside of the Perth metropolitan area and comprise of both Aboriginal and non-Aboriginal patients”. Mr Tomlison states that the applicant initially agreed to this arrangement, and that she was initially paired with both Aboriginal and non-Aboriginal volunteers in visiting Country Patients, but that she “later indicated that she only wanted to visit Aboriginal patients and only with another Aboriginal volunteer”.

(e)    Following the applicant’s request, Mr Tomlinson had a number of discussions with the Coordinator of the Aboriginal Health Liaison Office (AHLO) and the Director of Aboriginal Strategy and the Director of Nursing about developing a service where an allocated Aboriginal volunteer would visit Aboriginal patients. Mr Tomlinson says that, at the beginning of 2018, the applicant was engaged by the AHLO in that capacity to visit only Aboriginal patients rather than under the general volunteer service. Mr Tomlinson states that “this was a decision that [the applicant] had made, for a specific role that she wanted to conduct”.

(f)    Mr Tomlinson refers to the applicant’s hospital service volunteer service record, which shows that the applicant attended 125 shifts between 7 February 2017 and 14 November 2018. The record gives a detailed breakdown of those shifts. Mr Tomlinson states that “[a]t no stage was [the applicant] required to visit patients on her own nor was she the only Aboriginal volunteer engaged by the service”.

(g)    Finally, Mr Tomlinson denies ever having spoken to the applicant in an aggressive manner, or having knowingly not responded to the applicant during his communications with her. Mr Tomlinson states his belief that he has “treated her respectfully at all times”.

48    It should be emphasised that both the applicant’s allegations and the evidence of Mr Tomlinson are at this stage untested. While there is some common ground between their respective accounts, there are issues of fact that are in dispute. It is unnecessary to resolve those contested factual issues for the purposes of this application for leave under s 46PO(3A) of the AHRC Act.

The parties’ submissions

49    The applicant provided a written submission dated 23 January 2024, in which she recounted the background to her complaint and summarised her allegations regarding unlawful discrimination by the respondents, including:

(a)    being rostered on her own and expected to visit “Country patients” or Aboriginal patients by herself;

(b)    her conversations with Mr Tomlinson, including alleged statements made by him about Aboriginal people not knowing how to use the elevator, and being treated with silence;

(c)    the alleged conversation with Mr Tomlinson regarding her roster, their subsequent visit to the AHLO, and the ensuing conversations between them;

(d)    the meeting between the applicant and Mr Tomlinson which was arranged by his manager, at which the applicant accepted an apology offered by Mr Tomlinson although she remained angry at him;

(e)    her concerns about the manner in which Aboriginal patients were treated by or at FSH, including being referred to as “country patients” and the poor health outcomes of Aboriginal patients more generally; and

(f)    her lack of trust in Mr Tomlinson, and the ongoing impacts of his actions or omissions as the volunteer coordinator at FSH, including on her mental health.

50    The applicant submitted that the treatment by Mr Tomlinson amounted to “racial discrimination towards the Aboriginal patients and towards me as an Aboriginal person”. She acknowledged the delay in lodging her complaint with the Commission, which she explains as being “due to not knowing the legal avenues and legal processes”. The applicant stated that she sought legal advice in 2022 from the Aboriginal Legal Service in Western Australia, but they were unable to represent her.

51    At the hearing of the leave application, the applicant made further oral submissions in which she elaborated on the reasons for the delay in lodging her complaint. The applicant said that she had experienced mental health issues after she ceased volunteering at FSH, and that she had left Western Australia and moved to Melbourne to live with or near her children. During this period, the applicant pursued her complaint with the Equal Opportunity Commission and the Ombudsman. The applicant indicated that she did not lodge her complaint with the Commission at that time because she was settled and happy to be together with her children. However, in 2022, after subsequent reflection about her experience at FSH, the applicant thought that she had “to do something” about Mr Tomlinson’s behaviour to her, which she regarded as unacceptable and amounting to “racial hatred”. The applicant said that she had made some attempts to obtain legal representation, but without any success.

52    The respondents submitted that leave should be refused and that the application should be dismissed with costs.

53    In particular, the respondents submitted that the scope of the application was limited to the unlawful discrimination that was the subject of the terminated complaint, or arising out of the same or substantially the same acts, omissions or practices: see s 46O(3) of the AHRC Act. As a consequence, the respondents submitted that this Court lacks jurisdiction in respect of the allegations of victimisation within the meaning of ss 18AA of the RDA or racial hatred within the meaning of Pt IIA (and in particular s 18C) of the RDA, on the basis that the Commission did not accept those allegations as forming part of the complaint. Rather, the delegate of the President stated that the applicant’s complaint was “only being considered and progressed as a complaint alleging racial discrimination under the RDA”, having found that there was “insufficient information to support a reasonably arguable claim of victimisation or racial hatred”.

54    The respondents also submitted that the Court lacks jurisdiction in relation to the applicant’s general complaints about the treatment of Aboriginal patients at FSH, given that she had advised the Commission that such concerns had been satisfactorily resolved and she was pursing her complaint only in relation to her own treatment.

55    The respondents opposed the grant of leave primarily on the basis that the applicant had not demonstrated that she has a reasonably arguable claim under the RDA.

(a)    The respondents relied on the Tomlinson affidavit in response to the allegations of unlawful discrimination made by the applicant in her complaint.

(b)    The respondents submitted that the applicant had not articulated “which sections of the RDA are enlivened and how she can satisfy the statutory tests” to establish direct or indirect discrimination based on race contrary to s 9(1) or (1A) of the RDA. They submitted that their actions in relation to the applicant “in no way involved a distinction, exclusion, restriction or preference based on her race”, nor did those actions have the purpose or effect of nullifying or impairing the equal recognition, enjoyment or exercise of any human right or fundamental freedom in the political, economic, social, cultural or any other field of life. In so far as any term, condition or requirement had been imposed on the applicant (noting that none had been identified by the applicant with precision), the respondents submitted that it was reasonable and able to be complied with and did not have the effect of interfering with the recognition, enjoyment or exercise on an equal footing by persons of the same race as the applicant of any relevant human right or fundamental freedom.

(c)    More generally, the respondents submitted that their actions in seeking to engage the applicant as a volunteer specifically in relation to Aboriginal patients “were done with the best of intentions in an effort to better represent the interests and needs of Aboriginal patients and were reasonable in the circumstances”.

(d)    In the event that the allegation of racial hatred contrary to s 18C of the RDA were found to form part of the terminated complaint, the respondents submitted that the alleged acts (namely, using the term “country patients”, giving an example in a training context of an Aboriginal patient who had never been to a metropolitan area having difficulty using a lift, and making a comment in relation to Italian speaking volunteers visiting Italian patients) did not contravene s 18C because they were not done because of the applicant’s race and were not reasonably likely to offend, insult, humiliate or intimidate, given the context in which they were made and prevailing community standards.

56    The respondents also submitted that, even if the Court found that the applicant had a reasonably arguable claim, leave should nevertheless be refused having regard to the following considerations: the alleged discrimination was at the lower end of seriousness and was not ongoing; the applicant’s delay in lodging the complaint was significant and not adequately explained; and the fact that the applicant has utilised a number of other forums or processes to address her allegations. In relation to the last consideration, the respondents submitted that such attempts by the applicant to address her allegations outside of the Commission process demonstrate that she was not incapable of lodging, or seeking assistance to lodge, the complaint within the applicable time period.

57    While the respondents acknowledged the applicant’s contribution as a volunteer at FSH, they submitted that it would not be in the interests of the administration of justice to grant her leave under s 46PO(3A) to make the application to this Court.

Jurisdictional issues

58    The unlawful discrimination alleged in an application made under s 46PO must be the same (or the same in substance) as the unlawful discrimination that was the subject of the terminated complaint, or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint: s 46PO(3). Further, the application must allege unlawful discrimination by one or more of the respondents to the terminated complaint: s 46PO(1).

59    Accordingly, in order to determine whether the application falls within s 46PO, and therefore within the jurisdiction of this Court, it is necessary to identify the unlawful discrimination and the acts, omissions or practices that were “the subject of the terminated complaint”, and the respondents against whom the complaint was brought.

60    Those questions are informed by the relevant provisions in Div 1 of Pt IIB of the AHRC Act dealing with the conciliation of complaints made to the Commission. Among other things, a complaint is required to set out, as fully as practicable, the details of the alleged acts, omissions or practices, and it must be reasonably arguable that those acts, omissions or practices are “unlawful discrimination” as defined in s 3(1) of the AHRC Act: see s 46P(1A), (1B). A complaint must be referred to the President (s 46PD), who must consider whether to inquire into or terminate the complaint: ss 46PF(1), 46PH. If the complaint is not terminated, the President must conduct an inquiry and attempt to conciliate the complaint (s 46PF(1)(c)). A complaint may be amended with the leave of the President (s 46PA), including to add a respondent (s 46PF(3)), but not after it has been terminated by the Commission (s 46PF(4)). The President must act expeditiously in dealing with the complaint in accordance with s 46PF, although such a duty is not one that is “enforceable in court”: ss 46PF(10), (11). If conciliation is ultimately unsuccessful, in the sense that there is no reasonable prospect of the matter being settled, the President must terminate the complaint: s 46H(1B). The President is also required to terminate a complaint if he or she is satisfied that there would be no reasonable prospect that a court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination: s 46PH(1C).

61    In the present case, the complaint lodged by the applicant included allegations of victimisation (see s 18AA of the RDA) and racial hatred (see s 18C of the RDA). This is clear from the “ticks” placed by the applicant in the relevant boxes on the complaint form. Although the details or particulars of those allegations were not articulated with great clarity, the complaint encompassed matters alleged to have been said to the applicant that offended her and caused her some distress, and the actions allegedly taken by Mr Tomlinson and SMHS after the applicant had raised concerns about her treatment and the position of Aboriginal patients. In this regard, a complaint under s 46P of the AHRC Act is not to be construed as if it were a legal pleading: see e.g. Turner v State of Victoria (Department of Human Services) [2011] FCA 459 at [17] (Bromberg J). Accordingly, I consider that the subject of the applicant’s complaint as made to the Commission included allegations of unlawful discrimination and acts, omissions or practices falling within ss 18AA and 18C of the RDA.

62    In the course of deciding to terminate the complaint under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act, the delegate took the view that “there was insufficient information to support a reasonably arguable claim of victimisation or racial hatred as these terms are defined in sections 27 and 18AA and 18C of the RDA”. The complaint was therefore “considered and progressed” by the Commission only in relation to the allegations of racial discrimination contrary to s 9 of the RDA. The delegate did not expressly find that the complaint failed to meet the requirements of ss 46P(1A) or (1B) in so far as it alleged victimisation or racial hatred, nor did the delegate purport to exercise any power to terminate the complaints of victimisation or racial hatred as trivial, vexatious, misconceived or lacking in substance under s 46PH(1B)(a).

63    The precise basis and effect of the delegate’s decision in relation to the allegations of victimisation and racial hatred contained in the complaint is not entirely clear, but it seems to have amounted to a rejection of the complaint in so far as it made such allegations, ostensibly on the basis that they were not supported by “sufficient” information to “support a reasonably arguable claim”. Such a rejection or non-acceptance of a complaint that is lodged with the Commission might possibly be justified on the basis of non-compliance with the requirement in s 46P(1B) to set out as fully as practicable the details of the acts, omissions or practices that were alleged to amount to victimisation and racial hatred or, perhaps, on the basis of non-compliance with the requirement in s 46P(1A) that it must be reasonably arguable that the acts, omissions or practices alleged in the complaint amount to victimisation and racial hatred in contravention of ss 18AA and 18C of the RDA: see e.g. Sivwright at [71]-[73] (Feutrill J). However, it is far from clear whether it is possible for the Commission to “reject” a complaint on that basis, particularly in so far as it relates only to a part of the unlawful discrimination alleged in the complaint. Further, and in any event, it is doubtful that a complaint can be rejected or narrowed in such a manner by the President (or his or her delegate) once it has been referred to him or her by the Commission under s 46PD. Following such a referral, the President (or his or her delegate) is required to take one or more of the steps set out in s 46PF(1) – namely, consider whether to inquire into the complaint, terminate the complaint without inquiry, or inquire into and attempt to conciliate the complaint.

64    The respondents submitted that, as a consequence of the delegate’s finding, the allegations of victimisation and racial hatred were not the subject of the complaint “as terminated by the Commission”, and therefore were outside the scope of an application permitted to be made under ss 46PO(1) and (3). In my view, this is too narrow an approach to the application of s 46PO.

65    It may be accepted that the ambit of a complaint for the purposes of s 46PO(3) can encompass matters that are added in the course of an inquiry and conciliation, including as the result of an amendment of the complaint, and that the “terminated complaint” for the purposes of s 46PO incorporates “the shape [the complaint] had assumed at the time of its termination”: Turner at [17] (Bromberg J); see also Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46] (Marshall, Rares and Flick JJ). However, this does not mean that allegations which formed the subject of the complaint when it was made can be unilaterally excluded by the President (or his or her delegate) so that they do not form part of the “terminated complaint” within the meaning of s 46PO. If the allegations formed part of the complaint when it was lodged with the Commission, and have not been withdrawn by the complainant under ss 46PA or 46PG, any view formed by the President (or his or her delegate) that the allegations are not reasonably arguable or are otherwise without substance does not prevent those allegations from being agitated in an application subsequently made to the Court under s 46PO. The preferable approach may be that the President ought to give effect to any such view in the termination decision (e.g. under ss 46PH(1B) or (1C)), rather than simply declining to “progress” or “consider” the allegations as forming part of the complaint.

66    Accordingly, I consider that, in so far as the present application to this Court under s 46PO includes allegations of victimisation and racial hatred in contravention of ss 18AA and 18C of the RDA, those allegations are the same or the same in substance as the unlawful discrimination that was the subject of the terminated complaint. While the allegations might suffer from a lack of detail or substance, that is a matter that can be addressed in the exercise of the discretion under s 46PO(3A) when considering the merits of the complaint and its prospects of success.

67    Further, and in any event, even if the unlawful discrimination that was the subject of the terminated complaint did not include the allegations of victimisation and racial hatred because those allegations were not “considered” or “progressed” by the President and were not addressed in the termination notice, such allegations would still fall within s 46PO(3)(b) on the basis that they arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

68    The respondent makes an analogous submission in so far as the complaint extends to allegations about the treatment of Aboriginal patients at FSH, as opposed to the allegations of unlawful discrimination against the applicant herself. This is because the applicant told the Commission on 27 May 2023 that her concerns about the treatment of Aboriginal patients had been satisfactorily resolved through other avenues, and that her complaint was about her own treatment by Mr Tomlinson and FSH.

69    In my view, this clarification or concession made by the applicant in the course of the Commission’s consideration of the complaint does inform the proper ascertainment of the subject of the complaint that was ultimately terminated by the Commission. As a matter of fact, I find that any allegations about the treatment of Aboriginal patients in general, divorced from the effect of the applicant’s alleged treatment by Mr Tomlinson and FSH, were not the subject of the terminated complaint and do not arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. To the extent that the application under s 46PO of the AHRC Act purports to include such allegations of unlawful discrimination against Aboriginal patients, it is outside the scope of s 46PO(3).

Delay

70    The applicant’s delay in lodging her complaint with the Commission was the basis for the delegate’s decision to terminate the complaint under s 46PH(1)(b). The delegate took into account the impact of that delay on the President’s ability to conduct a fair inquiry into the allegations, the applicant’s explanation for the delay in lodging the complaint, and the other actions pursued by the applicant in the intervening period to address her concerns in relation to the treatment of Aboriginal patients at FSH.

71    The delay in the present case is significant. The acts, omissions or practices giving rise to the alleged unlawful discrimination took place in around 2018, and the applicant did not lodge her complaint with the Commission until late October 2022. This is far in excess of the 24 month period contemplated by s 46PH(1)(b) of the AHRC Act. Recognising that this is not a limitation period in the strict sense, s 46PH(1)(b) nevertheless reflects a legislative policy that complaints of unlawful discrimination should be made promptly in the interests of certainty and to facilitate their conciliation and resolution.

72    The respondents to the present complaint were made aware of the applicant’s concerns at the time that the alleged acts, omissions or practices occurred, and have been on notice of the applicant’s subsequent correspondence with Members of Parliament and the investigation conducted by the Ombudsman. Mr Tomlinson remains employed by the SMHS and has provided affidavit evidence on the present application. There does not appear to be any substantial forensic prejudice to the respondents arising from the applicant’s delay in lodging her complaint with the Commission. Nevertheless, there is likely to have been a reasonable expectation on the part of the respondents that the matters raised by the applicant had been addressed and resolved some time ago, and there would inevitably some degree of prejudice to the respondents in now having to defend a proceeding in this Court under Div 2 of Pt IIB of the AHRC Act.

73    The reasons for the delay in lodging the complaint include the applicant’s personal circumstances since she ceased volunteering at FSH in 2018, including her subsequent relocation to Victoria and her ongoing mental health issues. Nevertheless, during that period, the applicant was able to pursue several other avenues of redress in relation to her concerns about the treatment of Aboriginal patients at FSH, which brought about changes to the policies and practices for the conduct of the volunteer service. As to why the applicant did not lodge the present complaint with the Commission within 24 months after the alleged acts, omissions or practices took place, the applicant submits that she was not aware of the legal processes and that she has recently realised the ongoing impacts of her treatment at FSH on her mental health. When addressing the reason for the delay in lodging her complaint at the hearing of the leave application, the applicant admitted that “I suppose I forgot about it” as she was enjoying her life in Melbourne with her children.

74    It is possible that the applicant’s complaint to the Commission was prompted by the suggestion raised in the letter from the AGD officer in response to the applicant’s letter to the Prime Minister of Australia, shortly prior to the lodgement of the complaint. In any event, the pursuit of a complaint in relation to alleged unlawful discrimination does not appear to have been at the forefront of the applicant’s mind for much of the period between the end of 2018 and late 2022. Although the applicant was pursuing other avenues of redress in relation to the treatment of Aboriginal patients at FSH, she had otherwise resettled in Melbourne closer to other members of her family. As the applicant noted in her submissions, this period also coincided with the COVID-19 pandemic and associated restrictions. However, in the context of recent medical treatment, the applicant became more focused on the impact of her experiences at FSH for which she sought to make Mr Tomlinson and SMHS accountable.

Nature of allegations

75    The alleged acts, omissions or practices the subject of the complaint involve the manner in which the applicant was managed as a volunteer at FSH during 2017 and 2018. The core allegations involve the designation of Aboriginal patients as “country patients” and the applicant being rostered to visit all such patients on her own, along with the allegedly hostile manner in which the applicant claims that she was treated by her managers when such matters were raised by her.

76    The allegations in the complaint are clearly important to the applicant, and appear to be causing her ongoing distress. Nevertheless, the applicant has not been engaged by FSH since the end of 2018, and has achieved some success in her pursuit of changes to the policies and practices relating to cultural awareness at FSH.

77    While the subject matter of the allegations might have had some importance to the respondents, particularly in so far as they relate to any underlying systemic issues in the management of the volunteer service and the treatment of Aboriginal patients and volunteers in a culturally sensitive manner, such issues have to a large extent been separately addressed in response to the other avenues of redress pursued by the applicant.

78    The complaint does not relate to allegations of continuing discrimination, whether in relation to the applicant or more generally. Although the applicant undoubtedly feels highly aggrieved by her experience as a volunteer with FSH, the allegations are not at the higher end of the spectrum of seriousness. In this regard, I note that the respondents offered an apology to the applicant that was accepted by her at the time, although she now says that she regrets having done so.

79    The matters raised by the allegations are not particularly complex, either factually or legally. In so far as the allegations relate to the applicant’s treatment as a volunteer, they are likely to turn largely on the evidence of the applicant and Mr Tomlinson respectively. There is some level of agreement between their respective accounts about the occurrence of many key events (such as the volunteer induction sessions, various conversations between the applicant and Mr Tomlinson, the meeting between the applicant and Mr Tomlinson with the AHLO Coordinator, and the rostering of the applicant to visit Aboriginal patients), although the parties are in dispute about both what was said on those occasions and the proper characterisation of what was said.

Whether issues of public importance or general application

80    In my view, the allegations raised by the applicant in her complaint do not raise any issues of public importance, nor any issues of general application. The complaint is not directed towards the treatment of Aboriginal patients in general, nor does it raise allegations of continuing discrimination. The particular experiences of the applicant as a volunteer at FSH, while subjectively important to the applicant, are historical matters that no longer appear to raise any broader systemic issues.

Merits of complaint

81    In assessing whether or not the allegations raised in the complaint are reasonably arguable, it is neither necessary nor appropriate to make any findings on contested issues of fact. Accordingly, in so far as the respondents relied on the Tomlinson affidavit to support their submission that the applicant has not demonstrated a reasonably arguable claim under the RDA, I do not propose to make any findings of fact based on that evidence for the purposes of exercising the discretion to grant leave under s 46PO(3A) of the AHRC Act.

82    In the context of s 46PO(3A), a claim will be reasonably arguable if there is a “rational factual substratum for the allegations”, that is, if there is some “factual basis” for the claims at the threshold level required for the grant of leave: Chircop at [102] (Katzmann J). While this usually requires only an “impressionistic assessment” of the claims and supporting facts “without embarking on a detailed consideration and determination of the merits”, it is nevertheless necessary to consider the allegations by reference to the complaint and the originating application “at least to determine whether there is a factual and legal basis for the claims”: Chircop at [102]-[104] (Katzmann J), referring to Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [93] (Abraham J).

83    Given the basis on which the delegate decided to terminate the complaint based on delay under s 46PH(1)(b), the Commission has not addressed the merits of the applicant’s complaint nor determined whether or not the complaint is reasonably arguable (aside from the adverse view expressed by the delegate in relation to the applicant’s allegations of victimisation and racial hatred).

84    In so far as the applicant alleges unlawful discrimination contrary to s 9(1) or (1A) of the RDA, the respondents submitted that its actions towards the applicant did not involve any distinction, exclusion, restriction or preference based on her race, and did not have 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. Further, in relation to indirect discrimination, they submitted that the applicant had not identified any term, condition or requirement with which she was required to comply that was not reasonable in the circumstances and that had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any human right or fundamental freedom.

85    There appears to be a level of consensus that the applicant was rostered to visit Aboriginal patients in the course of her volunteer duties at FSH, and that most of those patients were designated by FSH as “country patients”. However, the respondents claim that this was at the applicant’s request, and that the term “country patients” was employed in relation to all patients who did not reside in the Perth metropolitan area. Further, the respondents deny that the applicant was rostered to visit all such patients on her own and also deny that the applicant was the only Aboriginal volunteer engaged by FSH’s volunteer service. There is also some common ground that Mr Tomlinson referred to “Italian speaking volunteers only visiting Italian patients”, but there is a dispute about the meaning and context of those references. More generally, Mr Tomlinson denies the allegations that he behaved in an aggressive, hostile or otherwise inappropriate manner towards the applicant.

86    Taking the applicant’s allegations at their highest, they do not raise a particularly strong claim that the respondents treated her differently because of her Aboriginal race with the requisite purpose or effect of nullifying or impairing the equal enjoyment of her rights or freedoms. Nevertheless, there is at least some factual basis on which such a claim can be raised. As Mortimer J noted in James at [37], the bar set by s 46PO(3A)(a) is not particularly high, and it has previously been satisfied in a case which was described as “not compelling” and “only just arguable”: Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 at [25(d)] (Steward J); see also Matthews at [80] (Abraham J).

87    Similarly, there is some factual basis to the allegation that the applicant was indirectly discriminated against in so far as she claims that she was required to comply with a requirement to visit Aboriginal patients at FSH based on her Aboriginal race. The existence and context of any such requirement, as well as its purpose or effect, are matters in dispute. While I do not regard this claim as particularly strong, I cannot say that it is fanciful.

88    On the other hand, I do not consider that the applicant has raised a reasonably arguable claim of victimisation or racial hatred in contravention of ss 18AA and 18C of the RDA.

89    In relation to the former, the applicant was engaged at FSH as a volunteer and made a choice to cease volunteering at the end of 2018. There is no basis for any allegation that the respondents took any of the actions referred to in s 18AA(2) against the applicant, let alone that any such actions were taken by reason of any complaint or proposed complaint by the applicant under the AHRC Act. The applicant did not lodge her complaint under s 46P of the AHRC Act until long after she had ceased volunteering at FSH.

90    In relation to the offensive behaviour prohibited by Pt IIA of the RDA, I do not consider that there is a factual basis for an allegation that the respondents did an act that was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate the applicant because of her race within the meaning of s 18C of the RDA. 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).

Other avenues of redress

91    As discussed above, it is evident that the respondents have previously addressed many of the applicant’s allegations outside the Commission process, particularly in relation to matters such as cultural awareness training and the volunteer service. As noted above in paragraph 17(b), following the consideration of the applicant’s complaint by the Ombudsman in 2018, SMHS reviewed its “Volunteer Service – Daily Visits Guidelines” and amended its processes so as to “enable Aboriginal patients to be identified and where appropriate, Aboriginal visitors to be matched with Aboriginal patients, where staffing allows”.

92    The applicant herself has told the Commission that she was satisfied with the resolution of her concerns about the treatment of Aboriginal patients at FSH. While the applicant maintains her complaint about her own treatment, it may be noted that the respondents engaged in an internal process at the time in response to the applicant’s concerns, which resulted in an apology being offered to and accepted by the applicant.

Exercising the discretion under s 46PO(3A)

93    In all of the circumstances of the present case, I consider that it is not in the interests of the administration of justice to grant leave to the applicant under s 46PO(3A) to make an application to this Court alleging unlawful discrimination by the respondents in relation to her service as a volunteer at FSH in 2017 and 2018.

94    To the extent that any of the allegations of unlawful discrimination raised by the application are reasonably arguable, the claims are neither clearly articulated nor particularly strong. Taking into account the other factors that tend against the grant of leave, I do not consider that the applicant’s claim for financial compensation is sufficiently arguable to warrant the grant of leave: see Makowski at [36] (Thawley J); see also Budini at [59], [83] (Charlesworth J). In other words, the merits of the applicant’s complaint are disproportionate to the time and resources likely to be consumed by dealing with it: see James at [37] (Mortimer J).

95    In particular, the applicant’s delay in lodging the complaint is significant and has not been satisfactorily explained by the applicant, particularly given that she was pursuing other avenues of redress during this period (at least in relation to the treatment of Aboriginal patients at FSH in general). The respondents were entitled to regard the concerns raised by the applicant as having been resolved or addressed, if not by the end of 2018, then certainly long before October 2022. Noting that the respondents have since amended their processes in relation to the identification of Aboriginal patients and visits by volunteers, the applicant’s allegations relating to her management by Mr Tomlinson do not involve any ongoing discrimination by the respondents and do not raise any issues of general application or public importance. The grant of leave under s 46PO(3A) would subject the respondents to the financial and other burdens involved in defending the proceedings, including in relation to events and circumstances that took place many years ago.

Conclusion

96    The outcome of this application does not detract from the important and valuable contribution that was made by the applicant during her service as a volunteer at FSH, including her efforts in advocating for the particular needs of Aboriginal patients. As the respondents expressly acknowledged in their written submissions:

While the Respondents deny that they unlawfully discriminated against the Applicant, they do not seek to diminish the impact the experience of being a volunteer has had on the Applicant. She contributed extensive hours of hard work in dedication to improving the care and support provided to Aboriginal patients. Her efforts brought comfort and support to a great many people in their time of need.

97    Nevertheless, for the reasons set out above, I refuse the application for leave under s 46PO(3A), and order that the originating application be dismissed. The applicant should pay the respondents’ costs of the application.

Associate:

Dated:    16 July 2024