General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

McKellar & Anor v Container Terminal Management Services Ltd & Ors [1999] FCA 1101; (1999) 165 ALR 409

Re Moreton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497

Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70

Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

Racial Discrimination Act 1975 ss 8 & 9

Evidence Act 1995 s 64(2)

Social Security Act 1991

Anti-Discrimination Act 1977 (NSW)

Federal Magistrates Court Rules 2001 r 13.10

(1) The respondent's application filed as an attachment to its response filed 22 October 2001 be dismissed.

(2) The applicant's application filed 2 October 2001 be dismissed.

(3) The applicant shall pay 80% of the respondent's costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.

(4) I certify pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 that it was reasonable for the respondent to employ an advocate to appear on its behalf in these proceedings.

1. This is an application by the COMMONWEALTH OF AUSTRALIA ("the respondent") to summarily dismiss an application by MARTIN DAMIEN BRUCH ("the applicant") pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 ("the Rules") on the ground that the application does not disclose a reasonable cause of action. It is claimed by the applicant that the respondent has unlawfully discriminated against him in contravention of the Racial Discrimination Act 1975 ("the RDA").

2. Essentially, the basis of the applicant's claim relates to his inability to obtain rental assistance from the respondent and he claims compensation in the sum of $100 million.

3. The applicant receives Australian Student Assistance allowance (AUSTUDY) as a mature age student at Chisholm Institute. He is non-Aboriginal and under AUSTUDY he is not allowed rental assistance. He claims that under the Aboriginal Study Grant Scheme (ABSTUDY) rental assistance is available to those eligible to receive that allowance. Hence he claims that payment of rental allowance to ABSTUDY students and not to Austudy students constitutes unlawful discrimination.

4. At the commencement of this hearing of the application by the respondent to summarily dismiss the application, I granted leave to the applicant to amend the name of the respondent to "Commonwealth of Australia" in lieu of the reference in the application to "the Commonwealth of Australia (Department of Education, Training and Youth)". During the course of the hearing it became evident to me that the submissions made by both parties were effectively the same submissions and affidavit material which in all the circumstances would be relied upon at a final hearing. Both parties agreed, therefore, that in the circumstances if I were to refuse the application for summary dismissal, that I should determine the substantive application on its merits based upon the material and submissions before the court without the need for a further hearing.

5. It is noted that the original statement of complaint by the applicant was the subject of a notice of termination by the Human Rights & Equal Opportunity Commission ("HREOC") pursuant to s. 46PH(2) of the Human Rights & Equal Opportunity Commission Act 1986 (Cth), (the "HREOC Act"). The statement of complaint provided that the applicant wished to make "a complaint of discrimination on the basis of race in the provision of goods and services". It is appropriate to then set out further the precise words of the statement of complaint and to then refer to relevant legislation, both in relation to the summary dismissal issue and the substantive claim. The statement of complaint provides:

"I am a mature age student, aged over 25, at Chisholm University in Frankston. I study full time. As a result I receive Austudy. I am not eligible for Youth Allowance due to the fact that I am over 25 years of age. I am not eligible for ABSTUDY, as I am not of aboriginal descent. The Federal Government - the Commonwealth Department of Employment, Training and Youth Affairs - pays rental assistance to those who receive Youth Allowance or ABSTUDY. However, rent assistance is not paid under the Austudy scheme.

As a result, I believe that I have been discriminated against. If I were of aboriginal background, in the same or similar circumstances, I could access ABSTUDY, and hence receive rent assistance. But due to the fact that I am not of aboriginal descent, I am not eligible for, and cannot receive, rent assistance.

Therefore, I believe that I have been discriminated against on the basis of race in the provision of goods and services."

6. Both parties before me provided to the Court an outline of submissions and made further oral submissions. The respondent further relied upon affidavit material including an affidavit by Catherine Helen Gordon and further relied upon a formal notice of previous representation. That notice referred to the production of the affidavit of Catherine Helen Gordon and sought to rely upon paragraph 64(2)(b) of the Evidence Act 1995 (Cth), ("the Evidence Act") and it was submitted that the hearsay rule should not be held to apply to three documents which had been exhibited to the affidavit of Ms Gordon. The three documents were an extract from a Department of Education, Training & Youth Affairs (DETYA) publication entitled "The Aboriginal Study Grant Scheme - Policy Manual" ("the Manual"), a letter dated

22 October 2001 from a Ms Emery, Executive Director, Indigenous Education Branch, DETYA" ("the Emery Letter") and a DETYA report of John Daniel Encel dated May 2000 and entitled "Indigenous Participation in Higher Education" ("the Encel report"). Further reliance was sought to be placed upon a report by the Ministerial Council on Education, Employment, Training & Youth Affairs ("MCEETYA") entitled "National Report on Schooling in Australia 1998" ("the 1998 MCEETYA report"). The report was said to be compiled by a number of unidentified members of MCEETYA and a further reference was made to another MCEETYA report entitled "Achieving Education and Equality for Australia's Aboriginal and Torres Strait Islander Peoples (Revised April 2000)" ("the 2000 MCEETYA report").

7. The respondent further sought to rely upon section 64(2)(a) of the Evidence Act in relation to a representation made by Ms Elizabeth King, Advocate of the Advocacy & Administrative Law Team Centrelink, that DEETYA is the Commonwealth government department responsible for establishing the policy and guidelines associated with ABSTUDY and the Department of Family & Community Services (DEFACS) has responsibility for, amongst other matter, establishing the policy and guidelines of the Austudy scheme.

8. No objection was taken to the respondent invoking s.64(2)(a) and (b) of the Evidence Act as described. Accordingly I have received and will rely upon all the documents to which I have referred.

9. The applicant had also claimed that in the present case he was a person who would otherwise be considered in need of rental assistance, though at the hearing when I pointed out that there was no evidence that he in fact was in rental accommodation, it was conceded by the respondent that this was not an issue. I should add, however, that the applicant when asked about his current circumstances indicated that he was residing with a brother in a Ministry of Housing dwelling and was apparently paying half the rent although he was not the formal tenant. No issue was taken about that arrangement by the respondent for the purpose of the present application.

10. It should also be added that in the present case the relevant provisions of the RDA which appear to be relied upon by the applicant are sections 9 and 13.

11. Section 9 provides:

"(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."

12. Section 13 provides:

"It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a) to refuse or fail on demand to supply those goods or services to another person; or

(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms, or conditions than those upon or subject to which he or she would otherwise supply those goods or services;

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person."

13. I raised the issue of whether the provision of rental allowance could be properly regarded as a provision of goods and services for the purpose of the RDA. Counsel for the respondent indicated that the respondent did not wish to take issue with that matter. I note in passing, however, that there is a definition of "services" in s.3 of the RDA which is an inclusive definition which provides:

"services" includes services consisting of the provision of facilities by way of banking or insurance or facilities for grants, loans, credit or finance."

14. It is clear, therefore, that the definition does not assist in the present case and in general terms, the Court would be required to consider the issue of whether in the present case there has indeed been what might be regarded as the supply of goods and services to the public in the provision of a rental allowance. I am not satisfied on the material before me that the provision of a rental allowance scheme by the Commonwealth Government would necessarily be regarded as the provision of goods and services for the purpose of s.13 of the RDA. However, as no issue was taken by the respondent in relation to that issue, I am prepared to consider the further matters which have been raised in this application.

15. In relation to the issue of the principles to be applied to an application to dismiss a proceeding, I was referred to Rule 13.10 of the Federal Magistrates Court Rules. The Rule provides:

"13.10 The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:

(a) no reasonable cause of action is disclosed; or

(c) the proceeding is an abuse of the process of the Court."

16. As indicated earlier, the respondent relies upon paragraph (a) of Rule 13.10 by asserting that the application does not disclose a reasonable cause of action.

17. I was referred to the well-known authorities in relation to the power of a Court to dismiss a claim and in particular noted that in doing so the Court should exercise that power sparingly and that the power should only be exercised in those cases where it is plain and obvious that the claim cannot succeed (see General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130 and McKellar & Anor v Container Terminal Management Services Ltd & Ors [1999] FCA 1101; (1999) 165 ALR 409 at 415-416. The respondent quite properly referred to an authority that provides that in circumstances where there is an unrepresented litigant, the power to dismiss should be exercised by the Court with "exceptional caution" (see Re Moreton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 513-514. It was further submitted and I accept that in considering whether to dismiss a proceeding the Court would be justified in taking that step where the complaint does not support an arguable case, or is so clearly untenable that it cannot possibly succeed, or does not reveal any real question to be tried, or lacks substance in the sense that it has no more than a remote possibility of merit and does no more than hint at a just claim (see McKellar at 416).

18. There is no dispute in the present case that there are benefits provided under two schemes, namely the Austudy Scheme and the ABSTUDY Scheme. It is common ground that DEETYA is the Government Department responsible for establishing the policy and guidelines associated with ABSTUDY. DEFACS has responsibility for, amongst other matters, establishing the policy and guidelines of the Austudy scheme.

19. During the course of submissions, reference was made to the Social Security Act 1991 (Cth) ("the SS Act") and the various provisions of that Act which relate to benefits, payments and allowances including the payment of rent assistance which is made available to a number of recipients of benefits, including those who are receiving the Age Pension, Disability Support Pension, Carer Payment, Wife Pension, Mature Age Allowance, Bereavement Allowance, Widow B Pension, Youth Allowance, Newstart Allowance and Parenting Payment. It was noted, however, that ABSTUDY is not provided as a benefit available under the SS Act.

20. I accept that ABSTUDY was a scheme introduced in 1969 as part of the Commonwealth Government's commitment to implement special measures to assist Australian Aboriginal and Torres Strait Islander people to achieve their educational, social and economic objectives through financial assistance to study. The material before me further enables me to conclude that ABSTUDY became available to indigenous students in tertiary studies from the beginning of the 1996 academic year and was made available in response to the lack of participation of indigenous people in higher education. I accept that in December 1998 the Commonwealth Government announced changes to ABSTUDY which were to take effect from 1 January 2000 and which were intended to help target ABSTUDY benefits to students most in need of assistance and to address particular educational disadvantages by these indigenous students. It is stated in the affidavit of Catherine Helen Gordon that, in addition, the alignment with the Youth Allowance (YA) meant that for the first time all eligible indigenous students would have access to the additional benefits, payable under the YA, of rent assistance.

21. Against that background it is clear that the major complaint of the applicant is one of discrimination in circumstances where he claims, contrary to the RDA, that he receives Austudy payments which do not provide for rent assistance, whereas indigenous Australians are entitled to ABSTUDY benefits which do include rent assistance. Because the applicant is not of Aboriginal origin, he does not therefore receive rent assistance.

22. The respondent in support of its submission that the application should be summarily dismissed relied in its primary submission upon s.8 of the RDA.

"PART II -- Prohibition of racial discrimination

(1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

(a) any provision of a deed, will or other instrument, whether made before or after the commencement of this Part, that confers charitable benefits, or enables charitable benefits to be conferred, on persons of a particular race, colour or national or ethnic origin; or

(b) any act done in order to comply with such a provision.

(3) In this section, charitable benefits means benefits for purposes that are exclusively charitable according to the law in force in any State or Territory."

24. It was submitted that it is relevant in considering the issue of whether the ABSTUDY Scheme is a special measure to have regard, as required by Section 8 of the RDA to Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination ("the Convention") which provides:

"4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."

25. During the course of submissions I was referred to the High Court decision of Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 and in particular the judgment of Brennan J in that case, where the Court was required to decide whether a State Land Rights Act was a special measure pursuant to s.8(1) of the RDA. In particular I was referred to the discussion by Brennan J on the meaning of "special measures" in s.8 of the RDA. At page 131, Brennan J states:

"Distinctions, exclusions, restrictions and preferences based on race which deny formal equality before the Law fall into two radical different categories: those which have the purpose of achieving effective and genuine equality by alleviating the conditions of a disadvantaged class and those which do not. Broadly stated, special measures are in the former category and outside the latter category."

" `Special measures', deemed not to be racial discrimination, are not the subject of the obligation imposed on States' Parties by Art. 5 of the Convention `to prohibit and to eliminate racial discrimination in all its forms'."

27. In his judgment, Brennan J sets out four indicia of a special measure and states, at page 4133 the following:

"...a special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with other human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with other human rights and fundamental freedoms."

28. In the present case, it is submitted on behalf of the respondent that each of the four indicia identified by Brennan J have been met in the current circumstances for the following reasons:

* The beneficiaries of ABSTUDY are a clearly defined group and class of natural persons made up of Aboriginal and Torres Strait Islander peoples;

* ABSTUDY was established in 1969 in response to inequities in education experienced by Aboriginal and Torres Strait Islanders. There have been many changes to the scheme and the scheme's name over the years. The scheme, including the provisions of rent assistance within the Scheme is necessary to ensure that the rates of participation of indigenous Australians in education is raised to the same as those for non-indigenous Australians, to promote equity in educational opportunity and to improve educational outcomes for indigenous Australians.

* The ABSTUDY Scheme has not led to the maintenance of separate rights for different racial groups as the objectives for which it has been introduced have not yet been achieved.

29. It was submitted that the latter part of Art. 1(4) should be taken into account even if the measure satisfies the four indicia referred to by Brennan J. It is noted that in his judgment Brennan J said at page 139:

"A measure which satisfies the four indicia is not a special measure if the provisos in the latter part of Art. 1(4) apply. The measure must not `lead to the maintenance of separate rights for different racial groups' nor `be continued after the objectives for which [it was] taken to have been achieved'. These provisions are intended to ensure that formal discrimination is not suffered to continue when protective measures to achieve effective and genuine equality are no longer necessary."

30. The respondent submits that the ABSTUDY Scheme does not lead to the maintenance of separate rights for different racial groups as the objectives for which it has been introduced have not yet been achieved.

31. I was referred to the Encel report which demonstrated, according to the respondent's submission, the following:

(1) While there has been a growth of indigenous student numbers in higher education since at least 1987, for example in 1996, while the proportion of indigenous students of all non-overseas students was approximately 1.2 per cent, indigenous Australians accounted for 1.7 per cent of the total population (at pages 15 and 16); and

(2) In 1998, 43 per cent of indigenous students relocated from their previous home towns or areas to study, as opposed to 28 per cent of non-indigenous students (at page 6).

32. It is useful to quote from the background in the manual which provides at paragraph 1.3.11 that

"The Aboriginal Study Grant Scheme (ABSTUDY), the precursor to the current ABSTUDY Scheme, was introduced in 1969 as part of the Commonwealth Government's commitment to implement special measures to assist Australian Aboriginal and Torres Strait Islander people to achieve their educational, social and economic objectives through financial assistance to study.

ABSTUDY became available to Indigenous students in tertiary studies from the beginning of the 1969 academic year in response to the lack of participation of indigenous peoples in higher education. Eligible full-time students receiving a living allowance with higher rates applying to married students and where there were dependent children. Compulsory course fees were also paid as well as book and equipment allowance. Travel costs were paid for students who needed to study away from home."

33. The manual further states that the Aboriginal Secondary Grants Scheme was introduced at the beginning of 1970 and in 1973 was extended to include all indigenous students attending secondary school. That decision, according to the paper, "...recognised that these indigenous students needed additional assistance and encouragement prior to leaving school to realise their educational potential as it was evident that many did not undertake senior secondary studies."

34. I was further referred to the Emery letter which elaborates on the history of the ABSTUDY Scheme, where the author states:

"ABSTUDY has continued since its introduction as a non-legislative program with changes made at Ministerial discretion ...

In December 1998, the Government announced some changes to ABSTUDY to align the rates and means tests for the ABSTUDY living allowance, those payable under mainstream programs: the Youth Allowance for students under 21 years of age and Newstart for students aged 21 years of age and over. This included the extension of rent assistance and remote area and pharmaceutical allowances to align with eligibility under the Youth Allowance and Newstart. These changes came into effect from 1 January 2000."

"There are significant differences between indigenous and non-indigenous student populations in terms of age and type of education and participation. Indigenous peoples are more likely to be participating in education at older ages and at lower levels than the non-indigenous population. In 1999, the Year 12 apparent retention rate for indigenous students for example was 34.7 per cent compared with 73.7 per cent for the non-indigenous population (National Report on Schooling in Australia 1999).

Most recent Australian Bureau of Statistics census data indicate that at 20 years of age only 19 per cent of indigenous Australians are undertaking education. The figure for all 20-year-olds is 43 per cent. By the time people are aged 25-29 years, only one quarter of indigenous Australians have a post-school qualification, while about half of all non-indigenous Australians have this qualification.

These findings suggest a continued need for special measures targeting the specific needs of indigenous Australians, and in particular, for financial incentive for mature-age indigenous Australians returning to study."

36. I was further referred to paragraph 1.4 of the Encel report under the heading "Areas of Home Residence and Relocation". The author states at paragraph 1.4:

"Reflecting the geographic distribution of the indigenous population, indigenous students are more likely to come from rural and (especially) isolated areas than are non-indigenous students. In 1999 they were only 0.9 per cent of students from urban areas, but 2.2 per cent of students from rural areas and 10.9 per cent of students from isolated areas.

... indigenous students are more likely to move away from their previous home town in order to enrol in higher education, as shown in Table 3.

Proportions of graduate respondents who had moved from their previous home towns to study 1996-1998

37. I was taken to page 13 of the 2000 MCEETYA report where the authors state:

"The scale of educational inequality remains vast for Australia's Aboriginal and Torres Strait Islander peoples and continues."

38. The 2000 MCEETYA report sets out a number of tables of statistics to support its conclusion.

39. It was submitted on behalf of the respondent that based upon the material to which I have referred there is clear evidence that the rent assistance provided by the Commonwealth as part of ABSTUDY is an attempt to increase participation levels of indigenous people in Australia's higher education. ABSTUDY is provided, according to the submission, to make higher education more possible and more attractive to indigenous Australians. The rent assistance, it was submitted, contributes towards assisting in the participation rates and recognises the greater need for indigenous Australians to relocate from rural or isolated communities to the cities to participate in the tertiary education facilities.

40. The respondent submits that the material provided to the Court demonstrates in clear terms that Australia is nowhere near achieving equality between indigenous and non-indigenous people in terms of participation in higher education, and specifically refers to the statistics from the Australian Bureau of Statistics census data which indicates that at the age of 20, only 19 per cent of indigenous Australians are undertaking the education and this compares with 43 per cent of those of the same age of non-indigenous Australians.

41. Again, I was referred to the 2000 MCEETYA report where the authors state at page 45 the following:

"Indigenous students are much less likely to continue their education beyond the compulsory years. Twelve years of schooling and now the expected norm for Australians; it is disturbing to find that the apparent retention rate to Year 12 for indigenous students across the nation is less than half that for other students. In 1998, 83 per cent of indigenous students remained in schooling to Year 10, but only 32 per cent to Year 12 compared to 73 per cent for non-indigenous students. There is general concern about the lacklustre trend in the overall Year 12 retention rate, but regardless of any changes in the rate over the last decade, nationally the Year 12 retention rate for indigenous students stays at less than half that for other students."

42. I was referred during the course of submissions to further extracts from the studies and discussion papers to which I have referred.

43. The thrust of the submissions then made by the respondent is that the material to which I have referred demonstrates clearly that the rental assistance as part of ABSTUDY is a special measure and therefore attracts the operation of s 8 of the RDA.

44. In any event, the rental assistance in these circumstances under the ABSTUDY Scheme does not in any way provide evidence supporting the applicant's claim that he has been the subject of discrimination under section 9 of the DDA. The respondent submitted that the applicant cannot support a claim of discrimination under section 9 because the respondent's decision to refuse the applicant rent assistance is not based on race and has not caused any impairment or nullification of any human right or fundamental freedom.

45. It is submitted by the respondent that in applying section 9 the Court is required to determine the basis of the treatment of the applicant and I was invited to consider the reference to that term as comparable to the words "on the ground of" in section 24(1) of the Anti-Discrimination Act 1977 (NSW) which was held to mean "the true basis" of the Act or decision by the High Court in the joint judgment of Dean and Gaudron JJ and Dawson J in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165.

46. The respondent submitted that the true basis that the applicant does not satisfy eligibility for rent assistance is based upon a number of other conditions, namely that he could not obtain such assistance under the Youth Allowance Scheme which only applies to persons aged between 16 and 25 years of age. Nor does he satisfy any conditions which apply under the Wife Pension arrangements because he is obviously not a wife. It is submitted the availability of rental assistance in the wide range of social security benefits that are made available by the Commonwealth are not dependent on race but other factors. Therefore the respondent submits even if it could be said the decision not to provide rent assistance to recipients of Austudy payments constituted a "distinction, exclusion, restriction or preference" for the purpose of section 9(1) of the RDA, it cannot be said this is "based on" race, colour, descent or national or ethnic origin.

47. The applicant was invited to make further submissions beyond the written submissions already lodged with the Court in response to the detailed material provided for and on behalf of the respondent. He sought to rely without objection upon a report from the St Vincent De Paul Society (Report dated May 2001) suggesting that there are a significant percentage of Australians living in disadvantaged circumstances and in particular referred to the issue of housing and figures from the Australian Bureau of Statistics which demonstrated 23 per cent decrease in government housing in the last five years. The applicant submitted that indigenous Australians could get rental assistance for two houses and relied on the basis that they would obtain assistance for the house in the remote locality and further rental assistance near the place of tertiary education under the ABSTUDY scheme. When asked how that contravenes the Act he simply asserted that rent assistance in itself is not a special measure because "we are all entitled to live somewhere". He then seemed to argue that rent assistance for two houses would be a special measure. When specifically asked to address the data provided by the respondent in relation to the various reports to which I have referred the applicant stated,

"I don't think the educational outcomes are really relevant. They are never going to have good educational outcomes while they get drunk and sniff petrol from a young age, like their brains are destroyed from a younger age. So its just never going to happen while that goes on. They need help, I'm not saying they don't. I am not trying to take anything away from them, that's the whole point. All I am saying is that everybody else is entitled to a little bit of help too."

48. In this application I am able to make findings of fact based upon the material placed before the Court by the respondent.

49. In particular I have no hesitation in finding as a matter of fact that the conclusion in the 2000 MCEETYA report that, "The scale of education or inequality remains vast for Australia's aboriginal and Torres Strait Islander peoples and continues" is correct.

50. I am further satisfied that one of the purposes of ABSTUDY is to provide amongst other things rental assistance to ensure that the rates of participation of indigenous Australians in education is raised to the same level as that for non indigenous Australians and is designed to promote equity and educational opportunity and improve educational outcomes for indigenous Australians.

51. I find that it is relevant to consider educational outcomes and that having as its objective equality of educational opportunity to which I have referred the rental assistance part of the ABSTUDY scheme can properly be regarded as a special measure for the purposes of s 8 of the RDA.

52. The ABSTUDY scheme has only been available from the beginning of the 1969 academic year. It was introduced in response to the lack of participation of indigenous peoples in higher education. Recent changes to the scheme to improve and extend the level of rent assistance came into effect from 1 January 2000. It is perhaps not surprising that in the short time that the recent changes have been operational and indeed the relatively short time in which the issue of non participation in tertiary education of indigenous Australians has been addressed by the ABSTUDY scheme that significant inequalities remain and as found by me as a matter of fact those inequalities remain vast for the Australian aboriginal and Torres Strait Islander peoples compared with non indigenous Australians.

53. Accordingly I accept that it is appropriate to apply Article 1(4) of the Convention and find as a matter of fact that the ABSTUDY rental assistance scheme is a special measure which has as its sole purpose securing the adequate advancement of indigenous Australians and that at present and indeed in the foreseeable future that group requires protection to ensure equality of opportunity in tertiary education which in turn I regard as equal enjoyment of the exercise of human rights.

54. I find in applying the meaning of special measures as defined by Brennan J in Gerhardy & Brown that the four indicia identified by His Honour have been satisfied in the present case. I am satisfied as submitted for and on behalf of the respondent that the beneficiaries of ABSTUDY are a clearly defined group class of natural persons made up of Aboriginal and Torres Strait Islander peoples. That class as defined is based on race and that ABSTUDY was established in 1969 in response to the inequities in education experienced by that group. The rental assistance as part of the ABSTUDY scheme is necessary to ensure that the group improves its rate of participation in education and in particular tertiary education. I accept that the ABSTUDY scheme has not lead to the maintenance of separate rights for different racial groups and further accept that the objectives for which it was introduced have not yet been achieved. Accordingly I am further satisfied to the extent that I am required that it could not be suggested that the special measure as found by me is no longer necessary.

55. Perhaps the most significant statistic revealed in the material to which I have referred is the fact that in 1999 the Year 12 apparent retention rate for indigenous students is 34.7% compared with 73.2% for non indigenous population. Added to this is the more recent Australian Bureau of Statistics census data which indicates that at the age of 20 years only 19% of indigenous Australians are undertaking education whereas the figure for all 20 year olds is 43%. Based on those facts I have no doubt that there is a continued need for the special measure which I have identified.

56. Accordingly in my view relying upon s 8 of the RDA this application by the applicant should fail.

57. It is necessary however for me to consider whether the application should be dismissed pursuant to Rule 13.10 or whether I should dismiss the application based as I indicated earlier on a hearing of the substatntive merits of the application before the Court.

58. In my view it is inappropriate in a matter of this kind where the applicant is unrepresented to summarily dismiss the application. To do so would be to contravene the principles applicable to summary dismissal which have been referred to by the respondent. It is my view that this application has been made to the Court based upon what the applicant perceives as a genuine grievance and what he would perhaps describe as an anomalous provision of an allowance which in his view may have amounted to unlawful discrimination under the RDA Act. It was at the hearing that substantive data was presented by the respondent which would remove any doubt at all that the rental assistance part of ABSTUDY was indeed a special measure which undoubtedly attracts the attention of s 8 of the RDA.

59. Where an unrepresented applicant makes a claim based on ignorance of the facts then it seems to me that a respondent which as in the present case is able to demonstrate clearly that there is no substance in the application should not necessarily lead to the conclusion that the application must be summarily dismissed. I am mindful of the fact that the application is one which has been the subject of a notice of termination and I can perhaps infer that some of the material placed before this Court had previously been viewed by the applicant who either did not understand the data or chose to ignore it. In any event I am satisfied that the submissions made by the applicant are based on ignorance and a lack of insight into the true facts and circumstances regarding rental assistance under the ABSTUDY scheme which I have found is a special measure.

60. Accordingly it is my view that it is inappropriate to dismiss the application pursuant to Rule 13.10 of the Federal Magistrates Court though it is appropriate that I should for the reasons stated make an order that the application be dismissed.

61. For the sake of completeness I should add that I am satisfied and accept the submissions made for and on behalf of the respondent that under

s.9 of the RDA the refusal of the respondent to grant the applicant rent assistance was not based upon race and has not caused impairment or nullification of any human right or fundamental freedom. Applying the principles to which I have referred it is my view that the true basis of the refusal to grant rental assistance was simply that the applicant does not qualify for rental assistance for which he and others may otherwise be eligible. His failure to be eligible for rental assistance is based on age and other factors which would defeat his claim for rental assistance and that those factors are not dependent on race. Hence even if I were to find that the AUSTUDY payments constituted a distinction, exclusion, restriction or preference for the purpose of s 9(1) of the RDA Act I am not satisfied that his is based on race, color, descent or national or ethnic origin in the circumstance of the present case.

62. The respondent has sought costs. The applicant when asked to make a submission in relation to costs said, "Well, they give me $175.00 a week, your honour, so if they give me a bill for one cent I will be going bankrupt". He further added, "The $100 million is just to show how angry I was, your Honour. It is not anywhere near what I expect. It's just anger. How else do I show it?"

63. It seems to me that even when confronted with the detailed and cogent evidence which ought properly to clarify and inform a fair minded citizen the applicant had not altered his views or expressed any desire that the application should be reconsidered. He persisted with what I obviously regard as a very weak case even though I was not prepared to summarily dismiss it for the reasons stated.

64. In addition it is relevant to take into account in the exercise of my discretion the fact that an extravagant claim for damages has been made solely to demonstrate anger. In my view that is not a valid basis for claiming damages or for exaggerating a claim in a human rights application. To persist with a $100 million for the reason stated is a relevant matter for me to take into account against the applicant in considering an award of costs.

65. In human rights applications there may be circumstances where a court would depart from the usual principles that costs follow the event. I cannot see any circumstance in the present case where it would be appropriate to depart from the usual principles. However, as I have dismissed the respondent's application for summary dismissal it is appropriate that I allow 80% of the respondent costs.

66. Accordingly I propose making the following orders:

(1) The respondent's application filed as an attachment to its response filed 22 October 2001 be dismissed.

(2) The applicant's application filed 2 October 2001 be dismissed.

(3) The applicant shall pay 80% of the respondent's costs and disbursements pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.

(4) I certify pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 that it was reasonable for the respondent to employ an advocate to appear on its behalf in these proceedings.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of McInnis FM