Alleged unlawful discrimination by the Territory
66 This aspect of the Strikeout Applications concerns allegations directed solely to the Territory. Again, they will be considered by reference to the Cumaiyi Action.
67 At [4] of the C-SOC it is alleged that the Territory "is, and was at all material times, able to be sued pursuant to s 5 of the Crown Proceedings Act 1993 (NT).
68 Section 5 of the Crown Proceedings Act provides that (subject to qualifications) proceedings may be brought by or against the Crown in the same way as proceedings between subjects. Section 5(2)(a) provides that in the case of the Territory Crown, proceedings may be brought under the name "Northern Territory of Australia". A reference to the "Crown" includes a "Minister, an instrumentality or agency of the Crown and a prescribed person": Crown Proceedings Act, s 4. These provisions refer to suits against instrumentalities that form a part of the executive branch of the government, and the pleading should be similarly understood.
69 However, the pleading does not otherwise specify any Minister, instrumentality or agency of the Crown that is said to have engaged in the conduct alleged to contravene s 9 of the RD Act. To the extent the act was done in the exercise of a power, the nature and source of that power is not specified.
70 The circumstance that proceedings may be brought against the Crown under the name "Northern Territory of Australia" does not mean that a pleading need not identify the instrumentality or agency of the executive that has engaged in the act forming the subject of the suit and, if the act be the exercise of a power, a description of its source and nature. Whether that degree of articulation is necessary must depend on the facts and circumstances of each case. I have concluded that in the present case the absence of clarity on those matters has given rise to genuine concerns about whether there is a cause of action to try.
71 In the course of argument, the Court requested that the applicants prepare the Elements Table. It is in the nature of a submission explaining which pleaded facts are relied upon to establish each respondent's alleged contravention of s 9 of the RD Act. It was produced under some protest, the applicants submitting that the articulation of their case by reference to "elements" is contrary to the caution given by Allsop J (as his Honour then was) in Baird v Queensland (2006) 156 FCR 451. His Honour said at [37] (Spender and Edmonds JJ agreeing):
… one must be careful to recognise that s 9(1) is one whole section and not a sum of finite elements. The provision is to be interpreted in a holistic way rather than by reference to disembodied individual elements.
72 Justice Mortimer (as her Honour then was) endorsed that approach in Wotton v Queensland (No 5) (2016) 157 ALD 14.
73 In addition to that caution, the Court must proceed on the basis that proceedings under the AHRC Act, the Court is not bound by technicalities and legal forms: AHRC Act, s 46PR.
74 The rules of procedural fairness nonetheless apply, as do the rules of evidence.
75 In cases where they are utilised, pleadings play an important role in the performance of the Court's function, both in ensuring that the respondent to an allegation is given adequate notice of the case to be met, and in making rulings as to the relevance (and hence admissibility) of the evidence relied upon.
76 The statements of Allsop J in Baird concern an approach to statutory construction. They do not mean that a person alleging a contravention of s 9 of the RD Act should be excused from clearly articulating their case, at least with respect to the two broad limbs of the statutory provision.
77 Those limbs were identified by Mortimer J in Wotton. The first of them is concerned with what happened, and its connection with race. The second is concerned with the outcome or consequences (actual or intended) of what happened. As her Honour said (at [530]):
… First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if 'effect' is the focus; or on what was intended, in a purposive sense, to be the outcome, if 'purpose' is the focus.
(original emphasis)
78 For the purpose of the first limb, the words "based on" do not require proof of a subjective motivation to discriminate, nor do they involve a causal connection between race and the relevant distinction or exclusion: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, Weinberg J (at 36 - 37). The second limb may however require proof of a causal connection between the act identified in the first limb and the nullification and impairment, at least in cases where there is an allegation that the "effect" of the act was the nullification or impairment of (for example) the exercise on an equal footing of a human right.
79 Given the emphasis all parties place on Baird it is necessary at this juncture to identify the other issues that arose before the Full Court in that case. The appellants (applicants at first instance) were Indigenous employees of the Lutheran Church. The State of Queensland made grants to the Church for the payment of their wages in amounts below the applicable award. The workers brought proceedings alleging that the State contravened s 9 of the RD Act. The trial judge concluded that the State's act of making the grants did not involve any requisite discriminatory element because it was under no obligation to make payments to the Church and because it had not been established that other grants were made at higher rates to facilitate the payment of higher wages to non-Indigenous workers.
80 As Allsop J identified (at [27]) a central issue at trial related to how the grants were calculated and the relationship between the calculation and payment of the grants by the State and the payment of below award wages by the Church.
81 His Honour also identified that there was a degree of imprecision and confusion in the pleadings in relation to the identification of the distinction, exclusion, restriction or preference for the purposes of s 9(1) of the RD Act and the relationship between any such distinction (etc) and the appellants' race. His Honour said (at [29]) that some of that confusion could be explained by the "almost elusive simplicity" of s 9(1), the content of which was described by Gibbs J in Gerhardy as "vague and elastic".
82 A good proportion of the Full Court's judgment is concerned with the lack of specificity in the appellants' case at trial and its implications for the resolution of issues arising at the trial and on the appeal. The trial judge had correctly identified that the pleaded case confused two separate requirements arising under s 9, the requirement that the act involve a discriminatory element and that it have a discriminatory purpose or effect. The Full Court accepted that the pleading lacked specificity in that regard, but the ambiguity did not ultimately prevent a proper understanding of the substance of the appellants' case as it was ultimately presented at the trial. That is a conclusion drawn in retrospect after the conclusion of a trial. It does not detract from the fact that the pleading lacked clarity.
83 On appeal, the appellants articulated their case in the following way (at [44]):
(a) the acts were the determining and paying of grants;
(b) the determining and paying of the grants involved a distinction, exclusion or restriction;
(c) the distinction, exclusion or restriction was based on race; and
(d) the acts, involving the relevant distinctions and which were based on race had the effect of nullifying or at least impairing the relevant economic right by denying them award wages to which they were entitled.
84 The State submitted that the case so identified had not been run below and so should not be entertained on the appeal. Allsop J rejected that submission. However, the rejection was not an endorsement of clarity in the pleadings. Rather, it was based on his Honour's consideration of the pleading in the context of what occurred at the trial, including opening and closing submissions.
85 In respect of the substantive issues, the Full Court determined that the primary judge had erred by basing his rejection of the claim on the incorrect propositions that the State was under no obligation to make payments to the Church such that there was no discriminatory element involved, and that there was no real life comparator or comparison against which to assess the "discriminatory element". As Allsop J explained, there is no indication in s 9(1) of the RD Act that a necessary element for the engagement of the section is the existence of an obligation to do the act, nor does s 9(1) require demonstration of a direct comparator or comparison. The correct approach to assess the State's conduct was (as his Honour explained (at [65]):
… to posit the questions thrown up by s 9(1) (recognising the holistic application of the section) to the controversy and presented by the pleadings in their context. These questions are: (1) whether the calculation and payment of the grants involved the setting of a sum for the funding of the Church towards running the reserves for, amongst other things, the payment of wages, based on below-award wages being paid, as distinct from, or, rather than, award wages being paid; (2) whether the distinction just identified involved in the calculation of the grants was based on race; and (3) if so, whether there was the relevant effect referred to by s 9(1). It is important that the first of these questions be understood simply to be whether part of the process of calculation and payment of the grants was the fixing of a sum in the above manner.
86 The pleadings in the present case describe the contravening act as one involving a failure by the Territory to provide sufficient or adequate interpreting services, which failure is said to have occurred "by reason of" the conduct in [31] and the facts alleged in [32] (which does not on its terms include an allegation of any act on the Territory's part): C-SOC [33]. The concepts in [31] - [33] are bundled together into a passive phrase: "Failures in the Provision of Interpreting Services". That phrase is then employed in [35] and [36] as the "act" for the purposes of pleas intended to invoke s 9 of the RD Act.
87 Argument proceeded on the assumption that funding of services within the Territory involves the appropriation of public money and its allocation to instrumentalities of the Crown and that those instrumentalities have some discretion as to how the allocated money is to be utilised among projects within their spheres of responsibility.
88 However, as the respondents correctly submit, the pleading contains no allegation concerning any discretionary power exercised by an identified instrumentality of the Crown.
89 In the absence of such a plea, the respondents submit that the impugned paragraphs must be understood to contain an allegation about an act of the legislature of the Territory, namely a failure to appropriate sufficient public money to fund the activities of the executive government. The respondents then submit that the appropriation of funds by the legislature may only be affected by the Legislative Assembly of the Territory passing a law authorising the expenditure of public money pursuant to s 44 and s 45 of the Northern Territory (Self-Government) Act 1978 (Cth). In accordance with that requirement, the Territory legislature has enacted laws that included the Appropriation (2016-2017) Act 2016 (NT) (Appropriation Act). The respondents submit that the passage of the Appropriation Act, or the failure to pass an alternative law for the appropriation of money sufficient to fund the AIS in the Relevant Period is not an act to which s 9 of the RD Act can apply in accordance with the principles discussed in Gerhardy and Mabo: see [15] above.
90 It follows, they submit, that the pleading in its existing form discloses no cause of action.
91 It is not in dispute that s 9 of the RD Act cannot apply to the passage of the Appropriation Act or any other appropriation made by the Territory legislature in the Relevant Period. That includes an act of the legislature allocating budgeted monies to specific instrumentalities of the Crown. It is common ground that a pleading alleging such a case would be liable to be struck out.
92 The applicants deny that the impugned paragraphs involve any allegation of that kind. They say that the act constituting the unlawful discrimination is an act of the executive of the Territory in its discretionary allocation of funds. For the purposes of s 9 of the RD Act, the "act" was said to be an act of a "Department" in exercising a general discretionary power to allocate a part of its own budget to the AIS. The act is one alleged to involve a discretion, and not the mandatory operation of a law, such that it is an act capable of involving a distinction (etc) based on race.
93 Such a case would not be liable to be struck out. But the case articulated in submissions is not made obvious on the pleadings. It should be.
94 It may be open to an applicant to employ phrases such as "in the premises" or "by reason of the matters pleaded" to support conclusions of the kind pleaded in the present case. However, the phrase "in the premises" and the cross-referenced paragraphs do not resolve the kind of ambiguity with which I am presently concerned.
95 In the course of the hearing, the Court asked Counsel for the applicants to confirm whether, for the purposes of s 9 of the RD Act, the "act" of the Territory was a failure to provide adequate interpreting services, as appears to be intended by [33] of the C-SOC in its present form. Counsel said:
No. The act is what is pleaded at paragraph 31 - the funding of AIS at particular levels. And we analogise this in the written submissions in the case of Baird.
96 However, submissions accompanying the Elements Table then described the pleas at [31] and [33] as alleging:
Because the Northern Territory failed to adequately fund the Aboriginal Interpreting Services (AIS), the Territory failed to provide sufficient or adequate interpreting services to MP speakers in connection with their access to … health and government services
97 Counsel is not criticised for his original answer to the Court's question. The confusion is a consequence of the pleading. Paragraph 31 of the C-SOC is readily understood as a plea clearly alleging the relevant act for the purposes of s 9 of the RD Act. And yet the applicants apparent intention is that the "act", for the purposes of s 9, is that pleaded at [33] - a failure to provide sufficient or adequate interpreting services (albeit one caused by a failure to provide sufficient funding).
98 The need for clearer articulation arises because the defences that may be erected by the Territory may be different depending on whether the "act" is the exercise of a discretion relating to the allocation of funds from a limited source, rather than the more direct failure to provide adequate interpreting services to the applicants and group members.
99 So much can be illustrated by [35] and [36] of the C-SOC. Those paragraphs respectively deal with the second limb of s 9 (concerning whether the act had a certain purpose or effect) and the first limb (concerning whether the act involved, for example, a distinction based on race). The allegation at [36] that the "Failures in the Provision of Interpreting Services" involved a distinction (etc) is expressed as a conclusion, without any explanation as to how that is so. The phrase "in the premises alleged" could be interpreted to draw on all manner of things contained elsewhere in the pleading, leaving it to the reader to pull the foundational threads together.
100 As to [35], if the impugned "act" of the Territory is a funding decision, then it seems that the intended case is that the funding decision is an "act" that had the effect of impeding AIS's capacities to provide interpreting services, which in turn had the effect that there were inadequate interpreting services provided to the applicants and group members which in turn had the effect referred to in the second limb of s 9 of the RD Act. If that is the intended case, then the causal connections should be pleaded so that each may be the subject of discrete attack in the defence.
101 Given what I have said about the Crown Proceedings Act, the applicants' assertion that the impugned act is one downstream from the legislature's appropriation of public money may be accepted. However, it remains that the pleading lacks a clear articulation as to which agency or instrumentality exercised, or failed to exercise a power, assuming that a case founded on the exercise of a discretionary power is intended to be run. If that be the intended case, the pleading should make it plain how the act (clearly defined) involved a distinction based on race (or any alternative permutation for which s 9 provides).
102 If those matters are resolved it might be that no amendment to [35] is necessary. However, given the interdependence of the pleas, there should be an order striking the whole of them out, with the applicants having an opportunity to replead.
103 I reach the same conclusion with respect to [31] - [33] of the G-SOC.
104 Some further aspects of the respondents' submissions should be mentioned.
105 The respondents submitted that if an act complained of is an act of a Department in exercising a general power to allocate a limited budget to different projects, then it would be necessary for the applicants to plead where the funds should have been diverted from in order to adequately fund the AIS. The respondents submitted that in the absence of such a plea, the relevant act could not on any view of the law involve a distinction, restriction or exclusion based on race.
106 I do not consider it appropriate to resolve that argument by reference to the pleadings as they presently stand. As the Full Court made plain in Baird, the "based on race" element of s 9 of the RD Act may be proven in immeasurable ways, not all of which involve the use of a comparator. In Baird itself the requirement that the act involve a distinction (etc) based on race was fulfilled by reference to the State's facilitation of salary payments to Indigenous workers below award wages, and the choice to fund at that level was proven in fact to be referrable to the workers' race. The applicants in the present actions should be afforded the opportunity to resolve any ambiguity in their intended case as to how any act of the Territory involved a distinction (etc) based on race. There is no utility in resolving the respondents' argument in the abstract without reference to the newly proposed pleading, especially given that acceptance of the argument may result in the striking out of the whole of the claim against the Territory without any opportunity to replead.
107 The respondents also argued that the pleading did not adequately disclose how the lack of interpreters nullified or impaired the applicants' or group members' access to or participation in the pleaded services. There is no substance in that complaint. The pleading in [35] is supported by other parts of the pleading that describe the alleged impact of the insufficiency of interpreting services provided by the AIS.