Brannigan v Commonwealth of Australia

3 In due course Ms Brannigan's immediate superior recommended that her appointment be confirmed subject to her obtaining a security clearance. The parties have proceeded upon the premise that her appointment was so confirmed although no written acknowledgment of confirmation is on the court file. 4 Ms Brannigan's time at the High Commission was obviously a very unhappy time. In April 1997, some eighteen months after the commencement of her employment, she took sick leave and remained absent until she was formally dismissed from her employment some six months or so later. Ms Brannigan challenged her dismissal, alleging that it was unfair. That matter was settled but the terms of settlement have not been disclosed; the proceedings that were instituted by her against the Australian High Commission were instituted in the United Kingdom. 5 On 6 February 1998 Ms Brannigan lodged a complaint in Australia with the Human Rights and Equal Opportunity Commission ("the Commission") claiming that she had been subjected to discrimination during the period of her employment at the Australian High Commission in London. Ms Brannigan alleged breaches of the Racial Discrimination Act 1975 (Cth), ("the Racial Discrimination Act") the Sex Discrimination Act 1984 (Cth) ("the Sex Discrimination Act") and the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"). Her complaints were investigated by the Acting Disability Discrimination Commissioner and by the delegate of the Race and Sex Discrimination Commissioner. On 25 November 1998 the delegate of the Race and Sex Discrimination Commissioner declined to inquire further into Ms Brannigan's complaint on the grounds that the acts complained of were not unlawful as they had not taken place within the Territory of Australia. 6 The Sex Discrimination Act and the Racial Discrimination Act provide that a complainant may request that the complaint be referred for hearing to the Commission. Ms Brannigan requested such a referral and, on 21 March 2000, Commissioner McEvoy dismissed Ms Brannigan's complaints on the ground that the Commission had no jurisdiction to inquire into them. In Action Number S 54 of 2000 Ms Brannigan seeks a review of that decision. 7 The Disability Discrimination Act provides that a complainant may seek review of the Commissioner's decision by the President of the Commission. Ms Brannigan sought such a review but I have not been informed of the outcome of her request. However, on 11 May 2000 (in Action Number S 48 of 2000) Ms Brannigan filed in the South Australian Registry of the Court an application alleging unlawful discrimination against the Commonwealth and nominating that the discrimination was in respect of action affected by the Disability Discrimination Act. 8 At this stage of the proceedings the short point that calls for consideration may be expressed in these terms: "Do the three Acts of Parliament, namely the Sex Discrimination Act, the Disability Discrimination Act and the Racial Discrimination Act or any one or more of them, have extra-territorial effect such that they apply to the circumstances of Ms Brannigan." 9 For the purpose of considering this issue I will assume, but without deciding, that during the term of her employment with the Australian High Commission in London Ms Brannigan was the victim of sexual discrimination, racial discrimination and discrimination on the grounds of some unspecified disability. 10 Mr Short, counsel for the Commonwealth, addressed in detail, but, nevertheless, his argument revolved around one central point - a fair reading of the legislation shows that none of the three Acts of Parliament claims to have extra-territorial effect. Mr Short offered four examples of Commonwealth legislation where Parliament had clearly exercised extra-territorial jurisdiction. The first example is to be found in s 7B of the Public Service Act 1922 (Cth) ("the Public Service Act"): "7B This Act applies both within and without Australia and extends to all the Territories."

Another example is to be found in the Ombudsman Act 1976 (Cth). Section 3A has the same effect as s 7B of the Public Service Act. It provides:

"3A This Act applies both within and outside Australia and extends to every external Territory."

Subsection 13(2) of the Occupational Health and Safety (Commonwealth) Act 1991 (Cth) was the next example. It reads as follows:

"(2) This Act (other than parts 3 and 4) has extra-territorial operation according to its terms."

The final example offered by Mr Short in this particular exercise was the Public Service Act 1999 (Cth). Subsection 5(1) of that Act provides as follows:

"5(1) This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears)." 11 Mr Short made the submission that is so patently obvious; it is within the power of Parliament to legislate extra-territorially; it has done so and when it has done so, it has done so in clear unambiguous terms. 12 There are, said Mr Short, authorities of powerful persuasion, which state that there is a general presumption of statutory interpretation that the legislature only intends its statutes to operate on persons and in relation to matters within its territory. In Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363 O'Connor J said: "In the interpretation of general words in a statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within the territorial limits." 13 That statement was followed a few years later by the remarks of Isaacs J in Morgan v White (1912-1913) 15 CLR 1 at 13 where his Honour said: "Another relevant consideration, having an important bearing on the situation is the well known doctrine that legislation is primarily territorial as Lord Halsbury LC said in Cooke v Charles A Vogeler Co. (1901) A.C. 102 at 107. The meaning of the doctrine is that unless the language of a Statute by express words or necessary implication indicates the contrary, the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction and for the welfare of which it exercises that jurisdiction." 14 Dixon J expressed himself in the same terms in Barcelo v Electro-Lytic Zinc Co. of Australasia Ltd (1932) 48CLR 391 at 423-424. He wrote: "I have come to the conclusion that in such a situation the only safe course to pursue is to apply the settled, if artificial, rule of construction for confining the operation of general language in a statute to a subject matter under the effective control of the Legislature. 'Every Statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law' (per Hannen P. in Bloxam v Favre (1883) 8 P.D. 101 at 107, adopting Maxwell on Statutes). 'It is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or state." (per James LJ in Niboyet v Niboyet (1878) 4 P.D. 1 at 7, and see too, per Brett LJ (at (1878) 4 P.D. at 20) whose judgment has prevailed. 15 Mr Hannon, counsel for Ms Brannigan conceded that there is no express grant of extra-territorial jurisdiction in any one of the three Acts of Parliament. However, his argument was that a fair reading of the legislation should lead the Court to find that there is an implied grant of extra-territorial jurisdiction in each of the three Acts. Alternatively, he submitted that a consideration of specific provisions of the legislation which he identified and analysed made it possible to infer that extra-territorial jurisdiction did apply in some cases. As part of his alternative argument, Mr Hannon submitted that the cases where it did apply existed in the Sex Discrimination Act and the Disability Discrimination Act so that those two acts extend extra-territorially to Australian nationals who are working outside of Australia in the employ of the Commonwealth Government. Mr Hannon acknowledged that the sections in those two Acts of Parliament upon which he relied to present that submission are not present in the Racial Discrimination Act and, as a consequence, his alternative submission did not extend to discrimination on the grounds of race. 16 I turn then to consider each of the three Acts in turn. For the purpose of deciding the preliminary question I will assume that Ms Brannigan was, for all purposes, a Commonwealth employee. I will deal first with the Sex Discrimination Act. In support of his proposition that extra-territorial jurisdiction could be implied generally or, alternatively, to employees of the Commonwealth Government, Mr Hannon relied on the preamble to the Act and its emphasis upon the need to "prohibit, so far as is possible, discrimination against people on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, … and the administration of Commonwealth laws and programs." For the purposes of his alternative argument, he laid emphasis upon the ongoing reference to "Commonwealth employees" appearing in subss (5), (7), (8) and (9) of s 9. He submitted that the provisions of subs 9(2): "Subject to this section, this Act applies throughout Australia" were not to be read as words of limitation because, for example, subs (5) was unlimited in its application: "(5) Sections 14, 15, 16 and 28B have effect in relation to discrimination against, and sexual harassment of: (a) Commonwealth employees in connection with their employment as Commonwealth employees; and (b) persons seeking to become Commonwealth employees."

I cannot agree with this interpretation; for my part it has the opposite effect. The provision of subs 9(2) and its statement of application throughout Australia, is, in my opinion, a clear indication that the Act is limited in its effect to Australia.

17 Before leaving the provisions of the Sex Discrimination Act, it is opportune, in my opinion, to draw attention to the provisions of subss (19) and (20) of s 9. Those subsections read as follows: "(19) The prescribed provisions of Part II have effect in relation to discrimination within Australia involving persons or things, or matters arising outside Australia. (20) The prescribed provisions of Division 3 of Part II have effect in relation to acts done within Australia involving persons or things, or matters arising, outside Australia. 18 There is, in those subsections, an explicit reference by the legislature to persons or things or matters arising outside Australia and hence touching, incidentally upon an issue of extra-territoriality. Even so, however, the legislature has limited its application to matters of discrimination, "within Australia". The existence of provisions such as subs (19) and (20) of s 9 go a long way towards rejecting any suggestion that the Act has any extra-territorial effect. 19 I turn next to the Disability Discrimination Act. Mr Hannon again relied on the objects of the Act which include the object of eliminating "as far as possible, discrimination against persons on the ground of disability" in the variety of areas that are nominated in the section. He argued, as he did with respect to the Sex Discrimination Act, that the beneficial objects of the legislation should not be constrained territorially. He also drew attention to the fact that the Disability Discrimination Act referred to the Discrimination (Employment and Occupation) Convention 1958 adopted by the General Conference of the International Labour Organisation on 25 June 1958. A copy of the English text of that Convention is set out in sch 1 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Disability Discrimination Act also refers to the Covenant on Civil and Political Rights. A copy of the English text of that Covenant is set out in sch 2 of the Human Rights and Equal Opportunity Commission Act. As I understand it, Mr Hannon relied upon the references to the Convention and to the Covenant as support for his proposition that it was open to the Court to imply that the Disability Discrimination Act stretched out beyond the borders of Australia into international areas. That is not my understanding of the reference to the Convention and to the Covenant. As I understand it Australia, in passing this legislation, was acknowledging its commitments to the Convention and to the Covenant; that is a long way short of any proposal that Australia was intending that its legislation would have extra-territorial effect. 20 The next provision to which Mr Hannon referred was s 12 of the Disability Discrimination Act which, in some respects, is similar to s 9 of the Sex Discrimination Act. The similarity was based upon its references to Commonwealth employees. Like subs 9(2) of the Sex Discrimination Act, it contained, in subs 12(2), the same provision: "(2) Subject to this section, this Act applies throughout Australia." 21 I can see no difference in the two corresponding subsections of the Acts; they are, in my opinion words of limitation that favour the conclusion that there is no extra-territorial effect. 22 There is within the Disability Discrimination Actin subs 12(8), an extra-territorial reference which does not appear in either the Sex Discrimination Act or the Racial Discrimination Act. That subsection reads as follows: "(8) The limited application provisions have affect in relation to discrimination against a person with a disability to the extent that the provisions: (a) give effect to the convention; or (b) give effect to the covenant on civil and political rights; or (c) give effect to the international covenant on economic, social and cultural rights; or (d) relate to matters external to Australia; or (e) relate to matters of international concern. 23 The "limited application provisions" are defined in subs 12(1) as meaning the provisions of Divs 1, 2 and 3 of Part 2 other than sections 20, 29 and 30 of the Act. The potential to give assistance to Ms Brannigan's submissions (because of the reference to extra-territorial matters and international concerns) fades the way however, because her fundamental complaint of discrimination is one of discrimination in employment. The proscription against such discrimination is found in s 15 and although s 15 comes within the "limited application provisions" there is nothing in s 15 which suggests that it relates to "matters external to Australia" or to matters "of international concern". 24 I turn finally to consider the provisions of the Racial Discrimination Act. Mr Hannon conceded that in this particular piece of legislation there was no similar reference to Commonwealth employees as appears in s 9 of the Sex Discrimination Act and s 12 of the Disability Discrimination Act. He was forced to fall back on his basic proposition that a fair reading of the entire Act discloses, by implication, an intention on the part of the Parliament to legislate extra-territorially. In addition to relying upon the preamble to the Act and its statement that it binds "the Crown in right of the Commonwealth" (s 6) Mr Hannon sought to draw comfort from the provisions of subss 9(2) and 10(2) both of which refer to the International Convention on the Elimination of all Forms of Racial Discrimination. For example subs 9(2) states: "A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention." 25 I do not see how this can assist Mr Hannon in his argument. It does no more than seek to advance Australia's legislative position on issues of racial discrimination in terms that are compatible with the Convention. There are two matters in the Racial Discrimination Act, both of which react against the implication that Mr Hannon would seek to draw. In the first place there is s 4 which states specifically that the Act "extends to every external territory". There was the opportunity for the legislature to address issues of extra-territoriality but it did not do so. The second matter is as follows: "This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia." 26 That provision appears as subs 9(3) which prohibits any acts involving racial discrimination and it also appears as subs 15(4) which section prohibits an employer from withholding work from a person on grounds of race, colour or national or ethnic origin. At first glance these subsections might be thought to contain an international flavour. However, on reflection I do not think that to be the case. It could be that a person has been employed by a non-Australian shipping line or airline in terms that would have offended the Racial Discrimination Act if the act of employment had taken place in Australia. The effect of the two subsections is to excuse such a non-Australian employer from the provisions of the Australian legislation. Far from suggesting an aspect of extra-territoriality, the decision of the legislature to exempt such a non-Australian employer strongly points to the opposite conclusion - the legislature was not intending that the Racial Discrimination Act would have extra-territorial effect. 27 In my opinion the Commonwealth has made good its claim that neither the Sex Discrimination Act, nor the Disability Discrimination Act nor the Racial Discrimination Act have extra-territorial effect. The complaints that Ms Brannigan has raised - even accepting them at their highest - all occurred within the United Kingdom. Mr Hannon acknowledged that there was no foundation for the proposition that diplomatic premises are to be regarded as outside the Territory of the receiving state: Radwin v Radwin (1972) 3 All ER 967 at 973; The Queen v Turnbull; ex parte Petroff (1971) 17 FLR 438 at 442-444; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 321. 28 For these reasons I have come to the conclusion that this Court lacks jurisdiction to hear Ms Brannigan's applications in these two actions. I will hear the parties on the nature of such declarations and orders as should be made; I will also hear the parties on costs. The proceedings are adjourned sine die with liberty to any party to bring the matter back on for hearing on seven day's notice. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Solicitor for the Applicant: Duncan Basheer Hannon