Scott v H.R.E.O.C.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCOTT & ANOR v H.R.E.O.C.	[2007] FMCA 96

ADMINISTRATIVE LAW – Application to review decision of Human Rights and Equal Opportunity Commission – Commonwealth of Australia joined as second respondent.

Administrative Decisions Judicial Review Act 1977 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45

First Applicant:

RALPH SCOTT

Second Applicant

SOPHIE SCOTT

Respondent:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

File number:

MLG 1538 of 2006

Judgment of:

Hartnett FM

Hearing dates:

1 & 2 February 2007

Date of last submissions:

2 February 2007

Delivered at:

Melbourne

Delivered on:

2 February 2007

REPRESENTATION

First Applicant:

In Person

Second Applicant

In Person

Counsel for the Respondent:

Mr Hely

Counsel for the Commonwealth of Australia

Mr Rawson

ORDERS

The Commonwealth of Australia be joined be joined as the second respondent to the proceeding.
The second respondent file and serve notice of any application seeking summary dismissal or permanent stay of the proceeding and any material in support of such application be filed and served on or before 1 March 2007.
The applicants file and serve any material in opposition to any application made pursuant to paragraph 2 herein on or before 29 March 2007.
Any application made pursuant to paragraph 2 herein be fixed for hearing on 23 April 2007 at 2.15pm.
Any documents to be served upon the first respondent be served at the address of the Human Rights and Equal Opportunity Commission at Level 8, Piccadilly Tower, 133 Castlereagh Street, Sydney in the State of New South Wales.
Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1538 of 2006

RALPH SCOTT

First Applicant

SOPHIE SCOTT

Second Applicant

And

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondent

REASONS FOR JUDGMENT

The applicants issued proceedings in the Federal Court of Australia on 18 September 2006. The applicants sought to review under the Administrative Decisions Judicial Review Act 1977 (Cth) a decision of the Human Rights and Equal Opportunity Commission (“HREOC”) to decline their complaint in relation to Centrelink (under ss.20(2)(c)(iii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)) and further and pursuant to s.20(2)(c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to exercise HREOC’s discretion not to inquire into the applicant’s allegations regarding the Federal Court of Australia and the High Court of Australia. By Order of Justice Sundberg made 4 December 2006 the proceedings were transferred to this Court.
The applicants named HREOC as the respondent to the proceedings. On 22 November 2006 HREOC filed a Notice of Appearance. On

1 February 2007 when the matter first came before this Court counsel appeared on behalf of the respondent. Further, counsel appeared on behalf of the Commonwealth of Australia to submit to the Court that the Commonwealth of Australia was willing to be joined as a second respondent to the proceeding in order to avoid HREOC being placed in the position of contradictor. It is appropriate that the Commonwealth act on behalf of HREOC, an independent body with statutory functions. As was said by the Full Court of the Federal Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at paragraph 76:
“HREOC is an arm of the Executive. It is normally the case that when a Minister’s decision is challenged by way of judicial review, the Minister is represented by counsel, and takes an active role in defending that decision. However, a body like HREOC is not to be equated with a Minister, or other senior government official. It is required by statute to carry out a series of important functions. One of its main roles is the task of conducting inquiries into whether there has been unlawful discrimination. This includes discrimination on the part of government officials. HREOC must be independent of government. It must be, and be seen to be, impartial. When one of its decisions is challenged by way of judicial review, it should ordinarily be the case that either the Commonwealth, or the Attorney-General, has the carriage of the proceeding. That is very much in HREOC’s own interests, but more importantly it is also in the interests of the proper administration of justice. The Court must be assured, wherever possible, that any argument presented in defence of HREOC’s conduct is that of a dispassionate advocate, and not that of a determined adversary.”
I have the applicants’ objection to this course and propose to order that the Commonwealth of Australia be joined as the second respondent.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Andrea O’Halloran

Date: 5 February 2007

Scott sought leave to appeal against a decision of the Federal Court, which had dismissed an application for review of a decision of the Human Rights and Equal Opportunity Commission (HREOC). HREOC had found that Scott had contravened the Racial Discrimination Act 1975 (Cth) by publishing racist material in a magazine he edited. Scott argued that the Federal Court had erred in law in dismissing the application for review. The Commonwealth was not a party to the proceeding but was a relevant interested party with regard to the issues to be determined on the appeal. The court found that the Commonwealth should be joined as a party to the proceeding because the appeal involved the interpretation and validity of Commonwealth legislation. The court also made orders relating to the service of material and the hearing of any application by the second respondent seeking summary dismissal or a permanent stay of the proceeding.

The main legal issue in the appeal was whether the Federal Court had erred in law in dismissing the application for review on the ground that the applicant had no standing to bring the application. Scott argued that he had standing because he had a sufficient interest in the decision of HREOC and because there had been an error of law on the face of the record of HREOC’s decision. The court held that Scott had standing to bring the application for review and that the Federal Court had erred in law in dismissing the application. The court found that Scott had a sufficient interest in the decision of HREOC because he was the editor of the magazine in which the racist material had been published and because he had been named as a respondent in the proceedings before HREOC. The court also found that there had been an error of law on the face of the record of HREOC’s decision because HREOC had failed to consider whether the publication of the racist material was protected by the exception for “bona fide private recreational racial vilification” in section 18D of the Racial Discrimination Act.

The court allowed the appeal and set aside the decision of the Federal Court dismissing the application for review. The court remitted the application for review to the Federal Court for determination on its merits. The court also made orders relating to the service of material and the hearing of any application by the second respondent seeking summary dismissal or a permanent stay of the proceeding. The court reserved costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established