August 2005 page 40

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Human Rights: Remedies for unlawful discrimination

By JONATHON HUNYOR
Jonathon Hunyor is a Senior Legal Officer with the Human Rights and Equal Opportunity Commission.

COURTS DECIDING UNLAWFUL discrimination applications under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) are able to make a broad range of orders upon finding that there has been unlawful discrimination. This article examines the approach by courts to the granting of remedies in such matters – in particular, the correct approach to damages, apologies, declarations and orders directing conduct.

Section 46PO (4)
Section 46PO(4) of the HREOC Act provides that a court may make “such orders ... as it thinks fit” if it is satisfied that there has been unlawful discrimination by a respondent. The section goes on to provide an inclusive list of orders that a court may make, including:

• declarations and directions not to repeat or continue conduct;
• orders requiring a respondent to perform any reasonable act or course of conduct to redress loss or damage;
• orders requiring employment or re-employment;
• orders requiring the payment of damages by way of compensation;
• orders requiring a respondent to vary the termination of a contract to redress loss or damage; or
• an order declaring that it would be inappropriate for any further action to be taken.

Damages
In assessing damages, courts have applied torts principles and sought to compare the applicant’s position following the respondent’s conduct with the position which they might have been in had the discriminatory conduct not taken place.¹

In a number of decisions it has been held that damages for non-economic loss “should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect”.² On the other hand, the Federal Court in one matter rejected the suggestion that damages for discrimination should necessarily be “substantial” to reflect public policy, stating that “[d]amages are compensatory and no more”.³

Commentators have suggested that awards for non-economic loss in the jurisdiction have, in fact, been relatively modest and that courts “have not accorded much weight or significance to the emotional loss and turmoil to an applicant occasioned by acts of unlawful discrimination and harassment”.⁴ Particularly where an applicant is claiming significant non-economic loss, they should therefore be aware of the need to produce persuasive evidence of hurt, humiliation and distress.

Aggravated damages have been awarded in a number of discrimination cases where a respondent has conducted the case in such a manner as to exacerbate the hurt and injury suffered by an applicant.⁵ The fact that a respondent may cause distress simply by choosing to defend litigation will not, however, suffice.⁶

The distinction between aggravated and exemplary damages has also been the subject of some judicial discussion. Exemplary damages are generally awarded in cases where there has been “reprehensible conduct which might perhaps have warranted punishment”, and have been awarded in one discrimination matter where such conduct was found to have occurred.⁷

Significantly, it is not necessary for an applicant to establish loss in order to be awarded exemplary damages. In obiter comments in two decisions of the Federal Magistrates Court it has been suggested that courts may not have the power to award exemplary damages in unlawful discrimination proceedings, as s.46PO(4)(d) of the HREOC Act provides only for “damages by way of compensation for any loss or damage suffered”.⁸ However, this approach ignores the fact that a court may make “such orders ... as it thinks fit” and, as has been noted by the Federal Court, “the list of specified orders in s.46PO(4) is not exhaustive – see the use of the word ‘including’”.⁹

Apologies
A number of courts have acknowledged that an apology may be an appropriate form of relief in cases where a person has suffered hurt, humiliation or distress as a result of discriminatory conduct. It has been stated, for example, that an apology may be “worth more to an applicant than money”¹⁰ and that an apology may help an applicant achieve “final closure”.¹¹

On the other hand, some courts have found that it is not appropriate to “seek to compel the respondent to articulate a sentiment that he plainly enough does not feel”¹² and even that “prima facie, the idea of ordering someone to make an apology is a contradiction in terms”.¹³

Declarations
Declarations have been recognised as a “useful and appropriate way of recording publicly the unlawfulness” of a respondent’s discriminatory conduct.¹⁴ However, it has been observed that a declaration such as “the respondent has committed unlawful discrimination” is too general in its terms. Declarations must state the rights of parties with precision and in a binding way – it is not an appropriate way to simply record, in a summary form, the conclusions of the court.¹⁵

Orders directing conduct
In two cases involving the dissemination of material that was found to constitute racial hatred,¹⁶ the Federal Court has made orders restraining the respondent from repeating or continuing such conduct.¹⁷ In one case, the respondent was ordered to remove material from the internet and was restrained from publishing or republishing the material or material with a similar content.¹⁸

Courts have also made orders requiring the construction of accessible public facilities within a set time period following a finding of disability discrimination¹⁹ and the re instatement of an employee on varied work hours to enable her to accommodate her family responsibilities.²⁰

Further information

For comprehensive coverage of case law in the federal unlawful discrimination jurisdiction, the Human Rights and Equal Opportunity Commission’s new publication Federal Discrimination Law 2005 is available at http://www.humanrights.gov.au/legal/fed_discrimination_law_05/index.html

Endnotes

1. Hall v Sheiban (1989) 20 FCR 217, 239 (Lockhart J).

2. Hall v Sheiban (1989) 20 FCR 217, 256 (Wilcox J), citing Alexander v Home Office [1988] 2 All ER 118; see also Gilroy v Angelov (2000) 181 ALR 57, 76 [105]; Johanson v Blackledge (2001) 163 FLR 58, 84 [115] citing with approval Horne v Press Clough Joint Venture (1994) EOC 92-591, 77,179; Wattle v Kirkland (No 2) [2002] FMCA 135, [71].

3. Clarke v Catholic Education Office (2003) 202 ALR 340, 360 [83].

4. Ronalds and Pepper, Discrimin ation Law and Practice (2004), 218.

5. See, for example: Elliot v Nanda (2001) 111 FCR 240, 297 [180]; Hughes v Car Buyers Pty Ltd (2004) 210 ALR 645.

6. Elliot v Nanda (2001) 111 FCR 240, 297-8 [182]; Frith v The Exchange Hotel [2005] FMCA 402, 42.

7. Font v Paspaley Pearls [2002] FMCA 142, [162].

8. Hughes v Car Buyers Pty Ltd (2004) 210 ALR 645, 657 [68]; Frith v The Exchange Hotel [2005] FMCA 402, 37.

9. McGlade v Lightfoot (2002) 124 FCR 106. Note that the decision in Frith v The Exchange Hotel [2005] FMCA 402 cites Hall v Sheiban (1989) 20 FCR 217 to support the view that exemplary damages are not available. However, the decision in Hall concerned the powers of the Commission, sitting then as a tribunal, to make declarations under now-repealed s.81 (1)(b) of the SDA for breaches of that Act. Section 81(1)(b) contained a non-inclusive list of the orders available to the Commission. The Court in Hall otherwise noted that exemplary damages have been found to be appropriate in other anti-discrimination jurisdictions: 241 (per Lockhart J), 282 (French J).

10. Cooke v Plauen Holdings [2005] FMCA 91, [43].

11. Forbes v Commonwealth of Australia [2003] FMCA 140, [34].

12. Jones v Toben [2002] FCA 1150, [106].

13. Jones v Scully (2002) 120 FCR 243, 308 [245].

14. McGlade v Lightfoot (2002) 124 FCR 106, 123 [78].

15. Commonwealth v Evans [2004] FCA 654, [57]-[60], citing Warra munda Village Inc v Pryde (2001) 105 FCR 437, [8].

16. See Part IIA of the Racial Discrimination Act 1975 (Cth).

17. Jones v Scully (2002) 120 FCR 243; Jones v Toben [2002] FCA 1150.

18. Jones v Toben [2002] FCA 1150, [105], [113]; upheld on appeal in Toben v Jones (2003) 199 ALR 1.

19. Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915; see also Cooper v Holiday Coast Cinema Centres Pty Ltd (Unreported, HREOC, Commiss ioner Keim, 29 August 1997).

20. Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31.