INSIDE THIS ISSUE
European Court of Human Rights
Z v United Kingdom (10 May 2001): Four and half years of serious ill-treatment and neglect of minors by their parents ("horrific" in its effect) was not brought to an end by effective steps by local authority. Held that there was a positive obligation to take steps to prevent ill-treatment and was a breach of article 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment) of the European Convention on Human Rights ("ECHR"). As to article 13 (the right to an effective national remedy): "The Court finds that in this case the applicants did not have available to them an appropriate means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy in respect of the breach of article 3 and there has, accordingly, been a violation of article 13 of the ECHR".
Price v United Kingdom (10 July 2001): The applicant (who had physical disabilities thalidomide induced) was sentenced to seven days for contempt of court and was required to serve three and a half days before she was released. While detained, she was permitted to become dangerously cold, risked developing sores from a hard bed and was unable to go to the toilet or keep clean without the greatest of difficulty. Held that this passed the threshold for degrading treatment and a contravention of article 3 of the ECHR was found.
R v SSHD ex parte Pearson and Martinez; Hirst v AG (4 April 2001): Applicants sought to impugn s. 3(1) of the Representation of the People Act 1983 as being incompatible with article 3 of the First Protocol of the Human Rights Act 1988 (the right to free elections) and article 14 (prohibition of discrimination ) of the ECHR which is scheduled to the Human Rights Act 1988. Issue raised by prisoners serving discretionary life sentences, who are deemed to be legally incapable of voting by the 1983 Act. Eight EU states do not give convicted prisoners the right to vote, 20 other EU states do. Having considered UK and Canadian cases, Kennedy LJ held that the disenfranchisement of convicted prisoners was pursuant to a legitimate aim that the court articulated as a mix of punishment, electoral law, forfeiture and loss of moral authority. The court held that the means adopted were proportionate, even though in the case of some life prisoners it was possible to be critical. Article 14 was held to offer nothing more to Art 3 of the First Protocol. No violation of either article found.
R v SSHD ex parte Daly (23 May 2001): s.47(1) of the Prison Act 1952 does not authorise a blanket policy that prisoners should not be present when legally privileged correspondence was examined by prison officers. Policy infringed legal professional privilege and also article 8 of the ECHR (everyone has the right to respect for his private and family life, his home and his correspondence). Lord Steyn held that where human rights are involved, any interference must be necessary in a democratic society (that is, meeting a pressing social need) and proportionate to the legitimate aim pursued. Thus:
R (on the application of Osman) v SSHD (10 September 2001): Collins J held that detention of asylum seekers for administrative convenience at Oakington Reception centre, where "no risk" detainees were held, was a breach of Article 5(1)(f) (Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition) and was also arbitrary Consequences of decision stayed pending the appeal to the Court of Appeal
BBC Scotland v Souster (7 December 2000): The Scottish Court of Session upheld a finding that the English and the Scots are "racial groups" within the meaning of the Race Relations Act, defined by reference to "national origins", so that an English man could complain that he had been discriminated against on grounds of race when his contract in Scotland was not renewed and a Scottish woman was appointed in his place. Held that membership of a racial group is not something that is acquired at birth and is immutable thereafter, but that an individual can become a member of a racial group defined by reference to national origins or nationality through "adherence" or adoption, for example, by marriage. Also held that neither the English nor the Scots are an "ethnic group" within the meaning of the Act because the distinctive racial element required for recognition as an ethnic group is lacking.
Whiffen v Milham Ford Girls' School (22 March 2001): The Court of appeal held that a redundancy selection policy whereby staff on fixed-term contracts were dismissed first, amounts to indirect sex discrimination.
Note that the EU Fixed Term Work Directive was implemented in the UK on 10 July 2001. This allows employees on fixed-term contracts to complain that they have been discriminated against in comparison with comparable full-time employees without the need to show an adverse impact on one sex. Once less favourable treatment has been established, it is for the employer to objectively justify it.
Secretary of State for Defence v MacDonald (1 June 2001): The Inner House of the Court of Session held that discrimination on grounds of sex does not include discrimination on the ground of sexual orientation, and that a male member of the RAF who was dismissed because he was homosexual was not discriminated against on grounds of sex. This was an appeal against the controversial decision of the EAT, sitting in Scotland, that the Sex Discrimination Act can be interpreted so as to include discrimination on grounds of sexual orientation.
Pearce v Governing Body of Mayfield School (31 July 2001): Court of Appeal held that a female teacher who was subjected to gender-specific, homophobic, verbal abuse was not unlawfully discriminated against on grounds of sex. The applicant could not rely on the Human Rights Act 1998 in support of her claim as it was not in force at the time of the abuse.
Schmiz1-de-Jong v Netherlands (9 August 2001): The author has claimed that she is a victim of discrimination on the ground of age, because at the age of 44-years-(in 1993) she was not entitled to a senior citizen's partner's pass, which was only provided to partners of 60 years and older. She alleged a contravention of article 26 of the ICCPR (all persons are equal before the law). The HRC stated that a distinction does not constitute discrimination if it is based on objective and reasonable criteria. In the present case, the HRC found that the age limitation of allowing only partners who have reached the age of 60 years to obtain an entitlement to various rate reductions as a partner to a pensioner above the age of 65 years was an objective criterion of differentiation and that the application of this differentiation in the case of the author was not unreasonable. Therefore there was no contravention of article 26.
Sextus v Trinidad and Tobago (1 August 2001): In 1988 the author was arrested on a charge of murder and was convicted in 1990. The author made complaint of the conditions of his detention since the date of his arrest, and in particular since 1997. From that point, the author has been detained in Port-of-Spain Prison in conditions involving confinement to a cell measuring 9 feet by 6 feet together with 9 to 12 other prisoners. One single bed is provided for the cell and therefore the author sleeps on the floor. One plastic bucket is provided as slop pail and is emptied once a day. Inadequate ventilation consists of a 2 foot by 2 foot barred window. The author is locked in his cell, on average 23 hours a day, with no educational opportunities, work or reading materials. The location of the prison food-preparation area, around 2 metres from where the prisoners empty their slop pails, creates an obvious health hazard. The contention is repeated that the provision of food does not meet the author's nutritional needs.
Views of the HRC: As to the claim of unreasonable pre-trial delay, the HRC found a violation of article 9(3) (anyone arrested or detained on a criminal charge shall be brought promptly before judge and shall be entitled to trial within a reasonable time or to release) and article 14(3)(c) (in the determination of any criminal charge, everyone shall be entitled to certain minimum guarantees). As to the claim of a delay of over four years and seven months between conviction and the judgment on appeal, the HRC found a violation of article 14(3)(c) (the guarantee to be tried without undue delay) and (5) (everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law). As to the author's claims that the conditions of detention in the various phases of his imprisonment violated articles 7 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and 10(1) (all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person), the HRC found a violation of article 10(1). It stated that "in the light of this finding in respect of article 10, a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7, it is not necessary to separately consider the claims arising under article 7".
F v Australia (31 July 2001): The author alleged discrimination against her son on the grounds of disability in violation of article 26 of the ICCPR (all persons are equal before the law). She stated that he was required to comply with a condition for entry to school (a pre-enrolment contract) which was not required of students without a disability. Moreover, the terms of the proposed contract were said to be unreasonable. In particular, a requirement seeking her son to work towards addressing his behaviour was inappropriate as the nature of her son's disability is said to be an organic brain disorder for which there is no treatment. Finally, the author contended that the requirement for such a contract substantively breaches domestic law, the Declaration on the Rights of the Child and the Declaration on the Rights of Disabled Persons. In 1994 a complaint was lodged with HREOC. In 1997 the Disability Discrimination Commissioner concluded that there was no evidence that the requirement that the author's son sign a pre-enrolment agreement constituted unlawful discrimination. She found no direct discrimination in that he had been required to sign an agreement because of his behaviour and previous suspensions, like other students with behavioural concerns, and not because of a disability. Nor was indirect discrimination found, for the author's son was considered on the evidence to be able to meet goals set, and choose to accept authority and control his behaviour. The behavioural goals set were tailored to him and progressive, and school staff were to be specifically trained to deal with the difficulties of the author's son. In the circumstances, the contract was found to be reasonable and not discriminatory. On 4 August 1997, the President of the Commission confirmed the decision and dismissed the complaint.
The HRC found that complaint centred upon the factual and evidential evaluation of the condition of the author's son and of his capacity to control and improve his behaviour. HREOC assessed these and other circumstances in coming to the conclusion that the author's son had been treated, as others in like situations, on the basis of his previous and expected future behaviour, that the contract was reasonable in the circumstances and that he had not suffered discrimination. In the light of the findings of HREOC, the HRC found that the author had failed to demonstrate that the required contract was not based upon reasonable and objective grounds, and accordingly considered that the author failed to substantiate her claims for the purposes of admissibility. Accordingly, the communication was inadmissible under article 2 of the Optional Protocol.
Shelter Corp. v Ontario (Human Rights Comm.) (1 February 2001): The Ontario Superior Court struck down a systemic remedy ordered by a Board of Inquiry in a case dealing with the use by Ontario landlords of income criteria to screen prospective tenants. Hearing complaints against three major landlords, the Board of Inquiry found that the practice of refusing to rent to persons who would have to spend more than a specified percentage (usually 30 percent) of their income on rent had a discriminatory impact on social assistance recipients, women, young people and refugee claimants. The Ontario Superior Court found no error in the conclusions that the Board of Inquiry reached and upheld the finding that the rent-to-income ratios used by the three landlords had a discriminatory impact on members of certain disadvantaged groups because of their disproportionate poverty. However the Court determined that the Board's declaration that the use of the income criteria violates the Ontario Human Rights Code, and its order requiring the landlords to cease and desist from using such criteria in future, could not stand. It did this on the basis that subsequent to the hearing of these complaints, an amendment was made to s 21 of the Code and a new regulation was enacted which permits the use of "income information" in the selection of tenants in certain circumstances, for example, if the information was considered in conjunction with other information, such as credit references and rental history information. The Court found that were the Board's order to stand, the three landlords would never enjoy the benefits of the amendments to the Code and this would put them on a different footing form all other landlords in Ontario.
Federal Discrimination Law
In Purvis on behalf of Daniel Hoggan v State of NSW and HREOC  FCA 1199 (29 August 2001) Emmett J in the Federal Court on an ADJR application found that the Commission had made two errors of law in its decision and remitted the case for re-hearing (in due course by the Federal Court or Federal Magistrates Service). The Commission had found that the Department of Education directly discriminated against the complainant on the basis of his disability in contravention of section 5 of the Disability Discrimination Act 1992 (Cth) (DDA).
Emmett J held that the Commission had erred by:
Kowalski v Domestic Violence Crisis Service Inc and HREOC  FCA 1082 (10 August 2001) involved a complaint that was remitted in 1999 by the Federal Court to the Commission to be dealt with according to law. The remitted matter was allocated to a new hearing Commissioner. Between November 1999 and March 2000 that Commissioner made various directions to bring the matter on for hearing.
In April 2000 Mr Kowalski submitted to the Commissioner that the matter should be taken to be terminated pursuant to s.12 of Human Rights and Legislative Amendment Act (No. 1) 1999 (Cth) (HRLAA). The Commissioner rejected this submission as he was of the view the Commission was required to hear the matter as the matter was part-heard and, as such, under HRLAA had to be heard by the Commission. Mr Kowalski sought review of that decision in the Federal Court.
On 10 August 2001 Madgwick J set aside the Commissioner's decision. He ruled that because the remitted matter had been allocated to a different Commissioner (to the first inquiry) a new inquiry was being conducted. He held that that new inquiry was still in preparation and had not commenced as at 13 April 2000 and was thus covered by s.12(1)(a) of HRLAA.
Section 12(1)(a) provides that if the inquiry into a matter referred for hearing has not started as at 13 April 2000 the President is taken to have terminated the complaint under s.46PH of HREOCA.
Accordingly, Madgwick held the complaint was deemed terminated pursuant to s.12 of HRLAA with effect from 13 April 2000 and directed that the President issue a Notice of Termination pursuant to s.14 of HRLAA.
In Taylor v HREOC and State of WA  FCA 852 (5 July 2001) French J granted a complainant an extension of time in which to make an application for ADJR review. The delay in lodging this application had not occasioned any prejudice to the respondent, it was explained, in part, by the actions of the complainant's legal representative and the complainant had an arguable case.
In Gluyas v HREOC and Australia Post; Gluyas v HREOC and Commonwealth  FCA 1322 (25 September 2001) Marshall J refused to grant a complainant an extension of time in which to make an application for ADJR review of two decisions of the President. This decision was primarily based on there having been substantial delay, one of the respondents would suffer considerable prejudice if the application for extension was granted and there were limited prospects of success in the other application.
The Federal Magistrate Service (FMS) has released its rules which came into operation on 30 July 2001. The FMS has advised that it will apply the rules of Court flexibly and with the objective of simplifying procedure to the greatest possible extent.
For a full copy of the rules and the explanatory memorandum, see the website at http://www.fms.gov.au/law/html/rules.html.
State and Territory Anti-Discrimination Law
The Statute Law (Relationships) Act 2001 (Vic) has passed both House of Parliament. This Act recognises the rights of de facto and same sex partners in domestic relationships by amending a wide variety of legislation including legislation relating to property, health, superannuation, consumer and criminal law rights. The only parts of this legislation which have commenced operation are those concerning property and probate rights. The remaining provisions will commence operation on 1 January 2002 if they are not proclaimed before that date.
The Racial and Religious Tolerance Act 2001 (Vic) which renders racial and religious vilification unlawful has passed both Houses of Parliament but is yet to be proclaimed. It will also commence operation on 1 January 2002 if it is not proclaimed by that date.
Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors  NSWSC 745 (31 August 2001) concerned a complaint by an Aboriginal man of racial discrimination and vilification arising out of out his apprehension and arrest by NSW Police. Mr Russell alleged that he was assaulted and injured in this process. After lodging his complaint, Mr Russell died and his parents continue this action.
On a stated case from the Appeal Panel of the Administrative Decisions Tribunal, Sully J in the Supreme Court found that:
In Sutherland & Ors v Van Kooten  NSWADT 121 (8 August 2001) an Aboriginal man was awarded $22,659.30 in damages after the licensee of a pub in Mendooran refused him service on the basis that: "I don't serve you people in here". His two Aboriginal friends who arrived in the pub later and were also denied service were awarded $4,000 and $6,000.
In Rutherford v Wilson & State of Queensland  QADT 7 (21 May 2001) the Queensland Anti-Discrimination Tribunal ordered the State Government and Donald Wilson, a senior ministerial advisor, to pay $10,000 to a former government administrative officer. The Tribunal found that the advisor had sexually harassed the officer by subjecting her to a range of offensive and inappropriate comments over a year long period. Such comments included being told: "if you've got tits you get everything easily" and "you wear shiny shoes so people can see your knickers up your dress".
In D v Berkeley Challenge (2001) NSWADT 92 (5 June 2001) the NSW Administrative Decisions Tribunal found an employer vicariously liable for the sexual harassment of a staff member and ordered that that employer pay the employee $26,800 in damages. The fact that the workplace had a sexual harassment policy was not found to provide any defence as there had been no attempt to implement this policy. In this case a female cleaner was threatened with a vibrator by a male co-worker. No attempts were made to investigate the woman's complaint or counsel or discipline the co-worker. The employer responded by effectively demoting the woman to the role of relief cleaner and placing her on probation. The Tribunal found that the failure of the employer to act amounted to implied authorisation of the male worker's conduct.
In State of Victoria v Schou  VSC 321 Harper J in the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal erred in law when it found that the complainant had suffered indirect discrimination on the grounds of her parental and carer status. The complainant was a Hansard reporter who alleged that she had suffered indirect discrimination as a result of a requirement that she, as a sub-editor, work from Parliament House during those times when either House of Parliament was sitting. The Tribunal had accepted that her parental and carer responsibilities prevented her from complying with this requirement.
Harper J remitted this case back to the Tribunal for a re-hearing according to law. He found that the Tribunal had not determined whether this "attendance" requirement was reasonable in all the circumstances. His Honour, however, expressed the view that the evidence in this case pointed to the conclusion that this requirement was "by no means inherently unreasonable".
His Honour opined that:
[a] term of a contract of employment, compliance with which is reasonably adapted to ensure that the employee provide to the employer that standard of service which the employer reasonably requires and the employee is paid to provide, will not [amount to indirect discrimination]. It is not the aim of the legislation to deny employers the rights given to them by a lawful and reasonable contract of employment.
Note: This update does not contain every case decided in each Australian jurisdiction from April to September 2001. It only contains those considered by the author to be of general interest.
On 26 and 27 September 2001 the Commonwealth parliament passed migration legislation comprising a package of seven Bills. This legislative package consists of:
A brief outline of each of the Acts as drawn from the Minister's Second Reading speech is set out below.
According to the Minister's Second Reading speech this legislation is designed to excise some Australian Territories from the migration zone. The Territories principally involved are the Ashmore and Cartier Islands in the Timor Sea and Christmas Island in the Indian Ocean and Cocos (Keeling Islands).
These Territories will become "excised offshore places". Unlawful arrival at one of them will not allow visa applications to be made.
The legislation provides strengthened powers to deal with people who arrive unlawfully at one of the Territories beyond the migration zone including the power to move the person to another country where claims for refugee status may be dealt with. The legislation precludes legal proceedings by such people apart from proceedings in the High Court.
The legislation amends the Migration Regulations to implement a visa regime aimed at deferring further movement from, or bypassing of, other safe countries. The Minister said it does this by creating disincentives to unauthorised arrival by those using people smugglers. Unauthorised arrivals and those who leave their countries of first asylum will be able to granted only temporary visas for Australia and not have any family reunion rights.
Those who have recently attempted to enter Australia by boat will not have access to permanent residence, their period of stay will be limited to three years when it will be re-assessed.
According to the Minister's Second Reading speech the legislation provides that all action taken in relation to the Tampa since 27 August 2001 is taken to have been lawful. Similarly, in relation to actions taken in relation to other vessels arriving since the Tampa such as the Aceng, a boat attempting to land near Ashmore Reef.
Court proceedings may not be taken or continued against the Commonwealth in relation to any such action.
The legislation will strengthen the border protection powers in the Customs Act and Migration Act, including the provision of powers to move vessels carrying unauthorised arrivals and those on board.
The legislation provides for mandatory sentencing of people convicted of people smuggling. The offences apply where five or more people are smuggled. The sentences provide that repeat offenders should be sentenced to a minimum eight years imprisonment, whilst first offenders should be sentenced to at least five years. The mandatory sentencing provisions will not apply to minors.
According to the Minister's Second Reading Speech this legislation "gives effect to the government's longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances". He said that the legislation, "introduces a new judicial review scheme for decisions made under the Migration Act relating to entry to, and stay in Australia, of non citizens of Australia. The key mechanism in the new scheme is the privative clause provision . .". The privative clause and related provisions, will replace the existing judicial review scheme at part 8 of the Migration Act and will apply to both the Federal and High Court.
The Minister stated that the same grounds of review will be available in either the Federal Court or High Court and consequently there will be no advantage in proceeding straight to the High Court in its original jurisdiction under s.75 of the Constitution. He said the High Court will be able to remit all matters to the Federal Court should it wish. It currently is unable to do so due to the jurisdictional disparity between the High Court's original jurisdiction and the juridiction of the Federal Court.
The legislation amends the Migration Act to restrict access to the courts for judicial review of migration decisions. The legislation does this by preventing class actions in migration matters before the Federal and High Courts, by changing the requirements for standing in the Federal Court, by clarifying the extent of the Federal Court's jurisdiction in migration matters remitted from the High Court and by introducing a time limit of 35 days for original applications to the High Court in migration matters.
This legislation amends the Migration Act 1958 to allow private sector organisations to provide the Department of Immigration and Multicultural Affairs with information regarding a person's actual or proposed travel to or from Australia.
The purpose of these amendments is to ensure that private sector organisations can continue to provide this information voluntarily without being in breach of the Privacy Act 1988, once amendments to that act covering private organisations commence on 21 December 2001. From this date private sector organisations covered by the Privacy Act will be required to comply with the national privacy principles.
According to the Minister's Second Reading speech the legislation is said to respond to two challenges facing Australia's refugee protection arrangments:
Interpretation of the Refugees Convention
In particular, in relation to (ii) above, the Minister said the Bill "will define the fundamental convention term, persecution, as an appropriate test of serious harm .. the legislation will define elements of serious harm as including a threat to a person's life or liberty, significant physical harassment or ill treatment, and other events that threaten a person's capacity to subsist. The legislation will provide that to invoke protection the Convention reason must be the essential and significant reason for the persecution".
Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001
On 27 September 2001 the Commonwealth parliament passed the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001. The Attorney-General in the Second Reading debate indicated that the intent of the Bill is to give the Federal Magistrates Service (FMS) concurrent jurisdiction with the Federal Court in matters arising under Part 8 of the Migration Act. [Part 8 provides for the review of certain migration decisions by the Federal Court]. He said conferring jurisdiction in migration cases on the FMS will not add another layer to the process of review as appeals from the FMS will be to the full Federal Court. That appeal may be heard by a single judge exercising appellate jurisdiction.
Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001
This legislation was passed by the Commonwealth parliament on 29 August 2001 and amends the Migration Act 1958 so as to: introduce powers to conduct screening procedures and strip searches in relation to immigration detainees, and apply search powers in State and Territory legislation to immigration detainees held in a State or Territory prison or remand centre.
Ruddock v Vadarlis  FCA 1329 (18 December 2001) (the Tampa case) Full Federal Court (Black CJ, Beaumont and French JJ): On 11 September 2001, Justice North made orders directing the Commonwealth to release people who had been rescued from a sinking vessel by the Norwegian ship, the MV Tampa, on 26 August. On 3 September those people were transferred to HMAS Manoora, in Australian territorial waters off Christmas Island. His Honour's orders directed that the persons be brought ashore to a place on the Australian mainland. Justice North's order was by way of habeas corpus and was granted on the basis that the Commonwealth had detained without lawful authority the people rescued by MV Tampa. The decision of North J was appealed.
By a majority, comprising Justices Beaumont and French, the Court allowed the appeal and set aside the decisions made by Justice North. The majority judges concluded that the Commonwealth was acting within its executive power under s 61 of the Constitution in the steps it took to prevent the landing of the rescuees. The closure of the Christmas Island port was done under a statutory authority which was not challenged. The majority has also concluded that the rescuees were not detained by the Commonwealth or their freedom restricted by anything that the Commonwealth did. Chief Justice Black dissented. He took the view that whilst the power to expel people entering Australia illegally is undoubted, it is a power that derives only from laws made by the Parliament and not from powers otherwise exercisable by the executive government. He took the view that since the powers provided in the Migration Act 1958 have not been relied upon, the Commonwealth government had no power to detain those rescued from the Tampa. He considers that on the facts of the case there was a detention by the Commonwealth and that since it was not justified by the powers conferred by the Parliament under the Migration Act it was not justified by law. He would therefore dismiss the appeals.
Tanji -v- Minister for Immigration & Multicultural Affairs  FCA 1100 (10 August 2001) Federal Court,Tamberlin J: On 6 March 2001 the Fefugee Review Tribunal ("RRT") confirmed the decision of the delegate of the Minister not to grant Mr Tanji a protection visa. In agreeing to set aside the RRT's decision and remit the matter Tamberlin J noted that an attack on the applicant because of the father's political opinion meant the applicant was attacked "for reasons of political opinion, although it may be that he did not in fact himself hold a political opinion. That is sufficient to satisfy the terms of the 1951 Convention Relating to the Status of Refugees definition of a refugee, which refers to a 'well-founded fear of being persecuted for reasons of ... political opinion'. The opinion does not have to be that of the person seeking refugee status".
Ahmadi v Minister for Immigration and Multicultural Affairs  FCA 1070 (8 August 2001), Federal Court, Wilcox J: . The RRT had confirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. In doing so it accepted that the applicant was excluded by reason of religion from public employment but said this was not "persecution" because the applicant could obtain private employment in a different field.
Wilcox J said, "The question whether particular adverse treatment of a person constitutes "persecution", within the meaning of the Convention, is a question of degree. There may be cases - indeed they will probably be common - in which denial of access to government employment is no more than an irritation and nuisance; reasonably satisfactory, comparable employment is available in the private sector. On the other extreme, there may be cases where the denial has the effect of wasting a person's training and qualifications and destroying any prospect of the person following his or her chosen occupation. It may be small consolation that the person has access to less satisfying, and less remunerative, employment in the private sector.
Wilcox J added, " . . It was not in law an answer to the applicant's claim to have suffered persecution for reason of religion, in being excluded from public employment in Iran, that he was able to earn a living as a buyer for a shop in a market at Abadan. The Tribunal needed to consider the effect of that exclusion on his career - taking into account both job satisfaction and remuneration - and to determine, as a matter of degree, whether the exclusion amounted to persecution within the meaning of the Convention. It is apparent the Tribunal failed to perceive that need. That failure constituted an error of law."
The matter was remitted to the Tribunal.
H v Minister for Immigration and Multicultural Affairs  FCA 906 (31 July 2001) Federal Court, Wilcox J: The applicant, an Iranian, arrived in Australia by boat on 27 September 2000 and was held in immigration detention at the Curtin Detention Centre,W.A. On 12 October 2000 he applied for a protection visa. On 26/27 October 2000 the applicant was informed of the delegate's decision to reject the application. The Migration Regulations provided that his appeal had to be lodged within 7 working days (ie by 6 November 2000). On 27 October the applicant retained a migration agent to act for him. On 30 October the agent faxed a form to the applicant (appointing the agent to act for him) to complete and return. The applicant immediately completed the form and asked the Curtin IDC to fax it back the agent. However, it was not faxed until 3 Nov 2000. A further delay occurred whilst the agent obtained the DIMA file number from the applicant's former solicitors to insert on the appeal form. The agent faxed the application for review to the RRT on 8 November 2000.
Wilcox J said the Tribunal was correct in holding it had no jurisdiction to entertain the application for review as it had been filed out of time. He added, "The case points up the potential for injustice that is inherent in legislation that fixes a short time for taking a procedural step without conferring on anybody a discretion to extend that time. I do not criticize the fixing of a short time for filing an application for RRT review of a delegate's decision, even a time as short as seven working days. It is important that everybody concerned with refugee applications acts with despatch. The problem arises out of the inflexibility of the prescribed rules. They make no allowance for the possibility of delay for reasons outside the control of an applicant. That possibility is not confined to persons in immigration detention, but it seems especially acute in relation to them.
Practice and Procedure
ACCC v Lux Pty Ltd ( FCA 6000; 24 May 2001): In this case, Nicholson J considered an application, made by the ACCC, that an earlier order for mediation be set aside. It was submitted that court ordered mediation was inappropriate by reason of the following matters:
The application to discharge the earlier order for mediation was dismissed.
ACCC v The Daniels Corporation (2001) ATPR 41-808; ( FCA 244; 16 March 2001). The Full Federal Court concluded, in this case, that a common law claim for legal professional privilege did not apply to notices issued by the ACCC under section 155 of the Trade Practices Act.
Idoport Pty Limited v National Australia Bank Ltd  NSWSC 670 31 July 2001: In this case, Einstein J held that section 78 of the Evidence Act 1995 (NSW) substantially alters the common law by permitting lay opinion to be given by a person whose opinion is based on what they saw heard or otherwise perceived about a matter or an event. The section was construed by his Honour as requiring a rational basis for the opinion before it becomes admissible. It is also necessary for the transparency of reasoning processes underlying the giving of such an opinion to be made explicit.
Montague Mining Pty Ltd v Gore ( FCA 791 (29 June 2001):In this case, a costs order was sought against a non-party. That application arose out of earlier proceedings in which a plaintiff sought damages against a law firm in a negligence action. The plaintiff won at first instance. However, on appeal, the plaintiff's damages award was reduced to nominal damages. The law firm sought damages against a non-party which had agreed to pay the plaintiff's litigation costs in return for portion of claim proceeds. Wilcox J considered possible application of the principle that the Court will order a non-party to pay the costs of a successful party where the non-party is the "effective litigant" (see Knight v F P Special Assets Ltd (1992) 174 CLR 178). His Honour concluded that the non-party in question in this case was not the effective litigant standing behind the plaintiff and that the Knight principle was not invoked merely by provision of financial support for a litigant.
Northern Australian Aboriginal Legal Aid Service Inc v Bradley ( FCA 1080; 10 August 2001):This was a decision of Wilcox J, in which his Honour considered a claim for public interest immunity in respect of otherwise discoverable documents (relating to the appointment of the Chief Magistrate for the Northern Territory). In concluding that the claim for privilege was not made out, his Honour noted that the documents would not, in fact, reveal the deliberations of the Northern Territory Cabinet. The documents were characterised by his Honour as memoranda between officers and drafts of a final Cabinet submission.
Northern Australian Aboriginal Legal Aid Service Inc v Bradley  FCA 908: In this case, Justice Wilcox upheld a charge of contempt of court laid against the Chief Minister and Attorney-General of the Northern Territory.
The Chief Minister made critical comments at press conference about litigation pursued by the North Australian Aboriginal Legal Aid Services Incorporated (NAALAS). In that litigation, NALAAS had alleged that the appointment of the Chief Magistrate for the Northern Territory was invalid.
His Honour held, finding the Chief Minister guilty of contempt and ordering that he pay $10,000 by way of penalty:
His Honour's decision underlines the importance of Ministers and other government officials taking care in what they say and do in relation to such proceedings.
In Brownlee v R (2001) 180 ALR 301; (2001) 75 ALJR 1180 ( HCA 36) the appellant was charged with conspiracy to defraud the Commonwealth contrary to the indictable offence created by section 86A of the Crimes Act 1914 (Cth). At the appellant's trial, a jury of 12 persons was empanelled. However, in the course of the trial, the jury was reduced to ten jurors. In addition, the jury was permitted to separate after they had retired to consider their verdict. Such matters were provided for by the Jury Act 1977 (NSW). The appellant appealed to the Court of Criminal Appeal NSW (which dismissed his appeal) and then sought special leave to appeal to the High Court.
In the proceedings before the High Court, the appellant focussed upon section 80 the Constitution, which provides that the trial on indictment of an offence against a law of the Commonwealth shall be by jury. The High Court held (7:0), granting the application for special leave to appeal against conviction but dismissing the appeal:
Yougarla v WA (2001) 181 ALR 371; ( HCA 47; (9 August 2001)), the High Court considered section 70 of the Constitution Act 1889 (WA), which provided for the issue of annual sums to indigenous people.
The appellants sought a declaration to the effect that certain provisions of the Aborigines Act 1905 (WA), which purported to repeal section 70 of the Constitution Act 1889 (WA), were invalid. The appellants based their claim on an alleged failure to comply with tabling requirements in section 32 of The Australian Constitutions Act 1850 (Imp) (which was preserved by section 2 of the West Australia Constitution Act 1890 (Imp)).
The High Court held, dismissing the appeal, that:
There was also discussion of the following submissions put by the respondent (which the majority considered unnecessary to decide):
Doubt was cast upon the correctness of both submissions.
Yarmirr v Northern Territory  HCA 56 (the Croker Island Case): In this important case, the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne, JJ) dismissed an appeal of the Commonwealth and found that the common law can recognise native title over the sea. They also dismissed an appeal filed by the claimants and found that a native title right to the exclusive possession, occupation and use of the waters of the claimed area, or to control access to those waters, was fundamentally inconsistent with the common law right to navigate and to fish and the international right of innocent passage and consequently could not be recognised by the Court.
Justice Kirby differed from the majority in that he upheld the applicant's claim to exclusive possession of their sea country where this conformed with their traditional laws and customs.
Justices McHugh and Callinan, in separate decisions, differed from the majority in that they upheld the Commonwealth's appeal.
In Holt v Manzie ( FCA 627 (5 June 2001)) Olney J concluded the process involved in giving notice to affected parties under section 29 of the Native Title Act 1993 (Cth) (in relation to a proposal to grant rights for mining exploration) did not involve a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977.
In Passi v State of Queensland ( FCA 697; 14 June 2001) Black CJ made consent orders in respect of a claim made in respect of the land and inland waters of the islands of Dauar and Waier comprising the Murray Island group in the eastern Torres Strait under the Native Title Act 1993 (Cth).
In The Ngalakan People v Northern Territory ( FCA 654 (5 June 2001)) O'Loughlin J considered a claim, made pursuant to the Native Title Act 1993 (Cth), in respect of Crown land proclaimed to be a township which was never developed. His Honour further considered whether native title had been extinguished over land which by "dedication" or statutory gazettal became a road in a town which was not developed.
His Honour held that the "proclaimed town" was a town in name only. Subject to the grant of seven specific allotments, which had been excluded from the claim, the area had not been the subject of any dealings. In particular, the claim area had never been the subject of any lease. However, the creation of the gazetted roads was inconsistent with (and therefore extinguished any) native title previously subsisting over the parcels of land represented by the roads.
Administrative Law (other than Migration Law)
Phosphate Resources Ltd v C of A ( FCA 776; 26 June 2001) was a matter in which the applicant sought judicial review of that a determination of the Administrator of the Territory of Christmas Island concerning electricity fees. The respondent filed a motion for dismissal, alleging that the determination was an exercise of legislative and not administrative power. Nicholson J upheld the motion for dismissal.
In Saitta Pty Ltd v Commonwealth ( FCA 817 (29 June 2001), Gray J dismissed an application under the Administrative Decisions (Judicial Review) Act 1977("AD (JR) Act") in relation to a report of the Aged Care Standard Agency prepared under the Aged Care Act 1997 (Cth). His Honour dismissed the application on the ground that provision for merits review by the AAT provided an adequate alternative remedy to the AD(JR) Act claim and that other common law claims could not succeed.
In Toomer v Slipper ( FCA 981(26 July 2001)), Weinberg J concluded that a decision by the respondent to refuse to grant, under section 33 of the Financial Management and Accountability Act 1997 (Cth), the applicant's request for an "act of grace payment" was not made in breach of the rules of natural justice, subject to bias or based on an error of law.
Australian and International Privacy Law
In preparation for the commencement of the Privacy Amendment (Private Sector) Act 2000 (Cth) on 21 December 2001, the Office of the Privacy Commissioner released in September 2001, the Guidelines to the National Privacy Principles. These Guidelines are designed to assist private sector businesses to meet the legislated requirements of the Act.
Furthermore, the National Health and Medical Research Council released in August 2001, draft guidelines in accordance with s.95A of the Privacy Act 1988 (Cth). These guidelines relate to the use and disclosure of health information.
There have been some interesting challenges to the protection of privacy reported in the media in the United States since the terrorist attacks on 11 September 2001. In reaction to the terrorists attacks, it appears that some bodies have received requests for information that could in certain circumstances breach privacy principles.
Two examples are (from http://www.privacy.net):
Hollis v Vabu Pty Ltd  HCA 44 (9 August 2001)
The applicant had been hit by a bicycle courier as he exited a building one day, and as a result had suffered 25% permanent damage to his knee. The bicycle courier remained unidentified but he wore the respondent's livery.
Issue: For the purposes of determining vicarious liability, is a bicycle courier that uses a personal corporation to contract with a Courier company, an employee or independent contractor?
Held: The majority concluded that bicycle couriers contracted by Vabu were in an employment relationship. McHugh J gave a separate opinion allowing the appeal but classifying the relationship between the couriers (both motor and bicycle) and Vabu as agent/principal. Callinan J gave a dissenting opinion in which he found the appellant bound by an earlier concession at the NSW Court of Appeal that the relationship was that of independent contractor.
The majority commented that the 'Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expense of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant and greater skill and training were required to operate it'. The court looked at several indicia of an employment relationship: lack of ability of couriers to generate their own goodwill, lack of control over the manner of performing work, presented to the public as emanations of Vabu, Vabu provided all the financing arrangements, lack of special qualifications.
Conway-Cook v Town of Kwinana  WASCA 250:
Issue: the distinction between termination of an employment relationship and termination of employment contract.
Held: (1) While a wrongful dismissal terminated an employment relationship, a contract of employment itself continues until such time as the affected employee accepts the repudiation constituted by the wrongful dismissal (and a wrongful dismissal will almost invariably amount to repudiation). (2) If an employee who is wrongfully dismissed chooses to keep his or her employment contract on foot, remuneration cannot be claimed in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered.
Higginson v Cargill Australia Ltd  NSWADT 152 (13 September 2001)
Facts: In Aug 1998, the worker had a bypass operation on a non-work related vascular problem in his left leg. His doctor later confirmed he was fit to return to work, subject to him not bending his leg beyond a 90-degree angle. The doctor suggested that the company investigate whether he could be redeployed to work in an upright position or at bench height. After reading the doctor's report and consulting its own medical opinion, the company informed the man that there were no modified duties positions available and he was not fit to return to work to his normal duties.
Issue: s 54 defence that renders a discriminatory act lawful where the act was necessary to comply with the requirement of another Act.
Held: The tribunal said the employer's refusal to allow the worker to return to work was a breach of s 49D(2)(a) of the DDA. It rejected Cargill's s 54 defence saying its doctor failed to consider alternatives to the worker squatting to do his work. It said the man was able to kneel and this was adequate to do the work. The tribunal also rejected employer argument that it had 'no option' but to refuse a return to work because it was unable to eliminate the risk of slipping: 'It would appear that the employer has unduly concentrated on the consequences of [the man] slipping rather than the steps taken to obviate the risk of accident.'
The Federal Workplace Relations Amendment (Termination of Employment) Bill 2000 was passed on 9 August 2001 The main changes are:
Mandatory Probation Period
The Act creates a mandatory probation period for all employees regardless of whether the period of probation is brought to their attention prior to their employment. The provisions also allow the parties to negotiate a shorter probationary period, including no probation, if that period is confirmed in writing, or a longer probationary period of reasonable and confirmed in writing.
A demoted employee cannot now make an unfair dismissal claim if the demotion does not involve a significant reduction in the employer's remuneration and the employee remains employed with the employer who effected the demotion. [We will wait for some jurisprudence on 'significant'].
Considerations for Small Business
The Act requires two additional factors to be taken into consideration by the AIRC when determining whether the termination of an employee's employment was harsh, unjust or unreasonable, namely the degree to which:
Issues Affecting Legal Practitioners
The changes also:
Human Rights and Equal Opportunity Commission. Last updated 6 February 2002..
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