Authorities on jurisdiction
71 Among the cases prior to 2011 referred to in the first paragraph of the Respect@Work report extract reproduced above was Penhall-Jones v New South Wales [2007] FCA 925, per Buchanan J at [10]:
Sections 46P and 46PO are in Part IIB of the HREOC Act (which provides for 'redress for unlawful discrimination'). A complaint alleging victimisation may be dealt with under the provisions in Part IIB of the HREOC Act because s 3 of the HREOC Act defines 'unlawful discrimination' to include:
'…any conduct that is an offence under:
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992.'
Section 42 of the Act appears in Division 4 of Part 2 of the Act. Accordingly the Federal Magistrates Court has power to deal with an application alleging victimisation under the Act if a complaint to that effect is terminated under s 46PH of the HREOC Act. Such proceedings are civil proceedings. They are to be distinguished from proceedings for an offence brought directly under s 42 of the Act (see O'Connor v Ross (No 1) [2002] FMCA 210 at [11]).
72 In the case cited by Buchanan J, O'Connor v Ross (No 1) [2002] FMCA 210, Driver FM, subsequently Judge Driver, dismissed an application to strike out a claim of victimisation contrary to s 42 of the Disability Discrimination Act 1992 (Cth) (DD Act), the parallel provision to s 94 of the SD Act, stating at [11]:
The respondents properly objected to the assertion in the original application that they had been guilty of criminal offences. The jurisdiction of this Court is to deal with complaints of discrimination that HREOC has been unable to resolve. The jurisdiction of this Court does not extend to the hearing of charges for alleged offences against the DDA or the HREOC Act. It was for that reason that I ordered that the application be amended to delete reference to an offence. That has been done. Mr Abaza submits that the amended application remains objectionable because it continues to assert victimisation contrary to either or both of s.42 of the DDA and s.26 of the HREOC Act. This objection indicates a partial misunderstanding. The DDA provides that it is an offence for a person to commit an act of victimisation. Where victimisation is dealt with as an offence, it will be prosecuted by the Director of Public Prosecutions in a court of competent jurisdiction other than this Court. However, a person may also make a complaint of victimisation to HREOC which the Commission will attempt to resolve by conciliation. Where conciliation is unsuccessful, the matter will then be referred for hearing by this Court or the Federal Court if application is made. Section 3(1) of the HREOC Act defines unlawful discrimination as acts, omissions or practices that are unlawful under Part 2 of the DDA and specifically includes any conduct that is an offence under Division 4 of Part 2 of the DDA. It follows that the applicant was entitled to make a complaint of victimisation to HREOC and that this Court has jurisdiction to consider the claim in respect of victimisation where HREOC has been unable to resolve the complaint by conciliation and the President has issued a notice of termination. This Court has dealt with such claims on a number of occasions: Tadawan v State of South Australia [2001] FMCA 25; Aleksovski v AAA [2002] FMCA 81; and Font v Paspaley Pearls & Ors [2002] FMCA 142. I add, for completeness, that my conclusions on this issue have taken into account s.125 of the DDA. The applicant's right of civil action derives from the HREOC Act, not the DDA.
73 In Dye v Commonwealth Securities Limited [2010] FCA 720, Katzmann J refused to grant a motion for leave to amend extensively a statement of claim. One such amendment was to expand a claim of victimisation based on s 94 of the SD Act to plead an action on the case at common law. In rejecting that proposed amendment upon the basis that the scheme of the legislation left no room for a collateral common law cause of action, her Honour said at [78]:
The general principle is that the identification of what, if any, private rights of action are conferred by a statute (either expressly or by necessary implication) requires an examination of the nature, scope and terms of the statute. That includes "the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation": Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [20], citing Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].
74 On appeal in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (Dye No 2), the Full Court said (emphasis added):
[70] The contested amendment proposed to par 75 had sought to add an allegation that Ms Dye could sue on an action on the case, in addition to her statutory right under s 46PO(3) of the AHRC Act. … She asserted that the action on the case was open by reason of her pleaded allegations of victimisation in contravention of s 94 of the Sex Discrimination Act 1984 (Cth). Her Honour rejected this amendment because, she held, there was an exclusive remedy in s 46PO of the AHRC Act for redress in respect of unlawful discrimination, including victimisation under s 94 of the Sex Discrimination Act 1984 (Cth). As her Honour found, Ms Dye did not suggest that her proposed reliance on an action on the case added anything to her cause of action under s 46PO(3). In arriving at this conclusion her Honour applied Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at 362-363 [20], 366 [31]-[32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
[71] The primary judge was correct to have rejected this amendment because Re East [1998] HCA 73; 196 CLR 354 made it unarguable. The plurality held there that Pt III of the Racial Discrimination Act 1975 created the procedures and remedies available to a person who claimed to have been subjected to unlawful discrimination within the meaning of that Act: Re East 196 CLR at 364- 365 [24]-[25]. Similarly, the purpose of s 46PO of the AHRC Act is to create a private cause of action by an individual, as well as by an applicant in a representative proceeding under Pt IVA of the Federal Court of Australia Act, for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act 1984. That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act 1984, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act. Neither the AHRC Act nor the Sex Discrimination Act 1984 create, or could be construed as creating or giving rise to, a common law cause of action to recover damages that duplicates the statutory cause of action and remedy for damages in s 46PO of the former Act: Re East [1998] HCA 73; 196 CLR 354. It follows that the primary judge was correct to have rejected this proposed amendment to par 75.
75 It does not appear that in Dye at first instance, or on appeal in Dye No 2, any issue was raised as to jurisdiction in relation to s 94 of the SD Act, most likely because the possibility of any problem in that regard had not been identified, noting that this had been rejected by Buchanan J in Penhall-Jones in his Honour's customary clear and unmistakable terms. By 2010, jurisdiction had either been positively found to be bestowed, or that was assumed to be the case.
76 The three cases since 2011 referred to in the third paragraph of the passage of the Respect@Work report extract reproduced above, reflecting a different view as to jurisdiction, are Walker v Cormack [2011] FCA 861; 196 FCR 574 (Gray J), Walker v State of Victoria [2012] FCAFC 38 (Gray, Flick and Reeves JJ) and Chen v Monash University [2016] FCAFC 66; 244 FCR 424 (Barker, Davies and Markovic JJ).
77 In Walker v Cormack, an appeal was brought from a decision of the former Federal Magistrates Court to dismiss an application brought alleging sex discrimination by advertising women's only gymnasium classes and victimisation under the SD Act arising from the appellant, a man, being excluded from a female gymnasium class. Gray J, exercising the Court's appellate jurisdiction, agreed with the Federal Magistrate that the appellant's exclusion from the gym class was due to his inappropriate behaviour, not in response to his complaint of discrimination. His Honour also observed by way of overt obiter dicta (emphasis added):
[40] It is difficult to find any statutory provision conferring criminal jurisdiction on the Federal Magistrates Court, whether generally or specifically in relation to offences under Pt IV of the Sex Discrimination Act. It was not possible to explore this issue fully on the hearing of the appeal, because no-one had averted to it until I raised it in the course of the hearing of the appeal. It is clear that the federal magistrate did not deal with the allegations of advertising and victimisation as criminal offences. If they were to be dealt with in that way, it would be necessary to deal with them separately from the allegation of unlawful discrimination in the provision of services, under Pt II of the Sex Discrimination Act. It would be wrong to expect a person facing criminal charges, particularly one that might lead to a sentence of imprisonment, to be asked to meet the allegations on which those charges were based in the context of a civil trial. The reading of a formal charge, followed by a plea of guilty or not guilty would be required. It would be necessary for the Court to be satisfied of the elements of the offence by reference to the criminal standard of proof, beyond reasonable doubt.
[41] The specific provisions permitting a complaint of victimisation (but not in relation to advertising) to be made to HREOC, coupled with the provisions of s 46PO(1) of the Human Rights Act, permitting an application alleging unlawful discrimination, following the termination of a complaint, suggest that Parliament was contemplating that victimisation might also be dealt with as a civil matter. This would be an unusual situation. It would give rise to the possibility that a litigant dissatisfied with the result of a civil proceeding in relation to alleged victimisation might then bring a criminal prosecution. This possibility would inhibit the ability of the alleged victimiser to give evidence in the civil proceeding, because of the possibility that he or she might be giving self-incriminatory evidence that could be used against him or her in a later criminal trial. For these reasons, it may be that, despite the use of the phrase "unlawful discrimination" in s 46PO(1), coupled with the definition of that term in s 3(1) of the Human Rights Act, victimisation cannot be the subject of a civil proceeding. The conferral only of civil jurisdiction might amount to a contrary intention, to which the opening words of s 3(1) refer, so that the meaning of "unlawful discrimination" is to be construed in a more restrictive way in s 46PO(1). Again, these issues were not able to be explored fully.
78 In Walker v State of Victoria, a case concerned with the victimisation provision in s 42 of the DD Act, which is in substantially the same terms as s 94 of the SD Act, Gray J (with Reeves J agreeing, but only with the substance of the reasons of Gray J and of Flick J, and Flick J not commenting on this issue at all) revisited the issue of jurisdiction and observed (emphasis in original):
[97] The question of the onus of proof leads to a difficult issue in relation to victimisation. It is abundantly clear that s 42 of the Disability Discrimination Act creates a criminal offence. The section is found in Div 4 of Pt 2 of the Disability Discrimination Act. The heading for Div 4 is "Offences". Section 42(1) provides that the maximum penalty for an offence of victimisation is imprisonment for six months. Section 12A of the Disability Discrimination Act expressly imports Ch 2 of the Criminal Code (found in the Schedule to the Criminal Code Act 1995 (Cth)), except for Pt 2.5 (which relates to corporate criminal responsibility), with respect to all offences against the Disability Discrimination Act.
[98] It is undeniable that a complaint can be made to the Commission in respect of victimisation, pursuant to s 46P(1) of the Human Rights Act. Such a complaint may be made "alleging unlawful discrimination." The definition of "unlawful discrimination" in s 3(1) of the Human Rights Act specifically "includes any conduct that is an offence under ... Division 4 of Part 2" of the Disability Discrimination Act. There is a question whether, when a complaint has been terminated and a proceeding may be commenced in this Court or the Federal Magistrates Court, pursuant to s 46PO(1) of the Human Rights Act, such a proceeding can be commenced in respect of conduct that amounts to an offence. The specific conferral of jurisdiction to deal with an application is found in s 49B of the Human Rights Act. Jurisdiction is conferred on this Court and the Federal Magistrates Court only with respect to civil matters. The general conferral on this Court of jurisdiction in any matter arising under an Act of the Commonwealth Parliament, found in s 39B(1A)(c) of the Judiciary Act 1903 (Cth) contains a specific exclusion of "a matter in respect of which a criminal prosecution is instituted or any other criminal matter."
[99] It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37]-[41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether "conduct that is an offence" under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.
[100] These questions were not argued fully in the present case, and there is no need to answer them. They do need to be the subject of authoritative answer.
79 In Chen v Monash University, an application was made to reinstate appeal proceedings that had been discontinued, concerning some 53 claims of sex discrimination and sexual harassment. The Full Court (Barker, Davies and Markovic JJ), principally found that the power to reinstate had not been enlivened. Their Honours then, in the alternative, turned to the question of the appropriateness of reinstatement had the power been enlivened, concluding that the appeal had no reasonable prospects of success so as to justify reinstatement. In the course of reaching that conclusion, their Honours considered the asserted errors of law on the part of the primary judge, one of which was that his Honour erred in finding that the Court did not have jurisdiction to hear the applicant's claims of victimisation. The applicant submitted on this issue that she sought civil not criminal remedies from the Court and that the primary judge failed to take that into account and failed to consider appropriate authorities such as Alexander v Cappello [2013] FCCA 860. Their Honours reproduced s 94(1) and (2) of the SD Act, and then said (emphasis added to the end of [121]):
[121] Section 49B of the AHRC Act confers on this Court and the Federal Circuit Court of Australia (Federal Circuit Court) concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC and, in conferring jurisdiction on this Court in relation to any matter arising under any laws made by the Commonwealth Parliament, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) expressly excludes "a matter in respect of which a criminal prosecution is instituted or any other criminal matter". While a claim of victimisation can be made to the AHRC it seems that it cannot, based on the operation of these sections, be made to this Court.
Their Honours further considered at [123] (emphasis added):
[123] The primary judge addressed this issue at [10] to [11] of his judgment. In doing so he observed that the applicant accepted the Court could not entertain claims of victimisation because the Court has no jurisdiction to deal with a claim that creates a criminal offence. At the election of the applicant and, without opposition from the respondents, the allegations that would otherwise have made up the applicant's claim of victimisation were dealt with as sex discrimination claims which formed part of a course of conduct on the part of the first respondent. There is no appealable error in the approach of the primary judge to this issue. He properly found that there was no jurisdiction in this Court to hear a claim which amounts to a criminal offence and made reference to the authority that was binding on him: Walker v State of Victoria. The applicant was permitted to lead evidence in relation to the matters that she said amounted to victimisation as part of her sex discrimination claims.
80 To explain the bolded passage above, the primary judge in Chen v Monash University [2015] FCA 130, Tracey J, had said:
[10] Prior to trial Dr Chen had also alleged that some of the alleged misconduct constituted victimisation under the SDA or racial discrimination under the Racial Discrimination Act 1975 (Cth). Reliance on these provisions was abandoned at the outset of the hearing.
[11] Section 94 of the SDA creates a criminal offence of committing an act of victimisation against another person. Such an act is taken to have been committed if the offender acts to the detriment of a complainant because that person had complained about conduct proscribed by the SDA. Dr Chen accepted that the Court could not entertain claims of victimisation because victimisation is a criminal offence and the Court lacks jurisdiction to deal with such charges: cf Walker v State of Victoria [2012] FCAFC 38 at [98] (Gray J, with whom Reeves J agreed). The respondents did not oppose these allegations being dealt with as sex discrimination claims which formed part of a course of conduct on the part of the University.
It is not clear whether the above conclusion was reached because the allegation made and abandoned was pleaded as a criminal offence.
81 The approach taken by a number of single judges since Chen v Monash University is as follows:
(a) In Winters v Fogarty [2017] FCA 51 at [29]-[34], Bromberg J considered each of Dye at first instance, Dye No 2 on appeal to the Full Court, Walker v Cormack, Walker v State of Victoria and Chen v Monash University as well as several other cases. His Honour did not consider himself bound by Chen v Monash University, but would have followed it as a Full Court decision but for Dye No 2. His Honour was not persuaded that there was no reasonable question to be tried as to jurisdiction, noting also without criticism that the issues underlying the conflicting authorities had not been fully addressed, concluding that this challenge to jurisdiction was not a sufficient basis for striking out those parts of the statement of claim, noting that other parts were unaffected by this argument. That is not the present situation. There has been full argument; and Ms Hanson's case is brought solely upon the basis for victimisation contrary to s 94.
(b) In Hazledine v Arthur J Gallagher Australia & Co (Aus) Limited [2017] FCA 575, White J heard an interlocutory application seeking the striking out of parts of a statement of claim. Victimisation based on s 94 of the SD Act was one of a number of causes of action pleaded under both the SD Act and the DD Act. The respondent also sought a separate hearing as to whether the Court had jurisdiction to hear and determine the victimisation claim. His Honour referred to the competing authorities, including those referred to above and to the essence of the jurisdictional dispute. His Honour weighed up the competing considerations for the jurisdictional dispute to be heard as a separate question, and decided against it, largely because of the numerous other claims that would need to be delayed pending both determination of that question, and any appeal. Again, that is not the present situation.
(c) In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436, Collier J referred to the competing authority on jurisdiction in relation to a claim of victimisation, after having made adverse findings on capacity to carry out the inherent requirements of the job in relation to which he claimed disability discrimination, such that no discrimination had taken place. Her Honour decided at [319] that, notwithstanding the inconclusive state of Full Court authority on this issue, for the purposes of that application she was prepared to accept that the Court does have jurisdiction, and then found as a question of fact that victimisation had not taken place. This was a pragmatic approach that does not provide guidance to the present situation.
(d) In Wilson v Britten-Jones (No 2) [2020] FCA 1290, Abraham J refused an application under s 46PO(3A) for leave to bring proceedings alleging sex discrimination and victimisation. In the course of reaching that conclusion, her Honour did not need to decide the question of jurisdiction because she found that the applicant did not have an arguable case in any event, and had that not been the case, in that state of uncertainty, a doubt over jurisdiction would not have been a sufficient reason to refuse leave. In this case, the question is squarely raised and will need determination at some stage of this proceeding.
(e) In Leach v Burston [2022] FCA 87, Halley J considered that it was reasonably arguable that the Court did have jurisdiction prior to the 2021 amendments, and was inclined to that view, and accordingly was not prepared to determine the question on an interlocutory basis, in the context of other claims that did not give rise to this issue. Again, that is not the present situation.