[1994] FCA 1387; (1994) 36 ALD 193

Administrative Law - judicial review - decision of an Inquiry Commissioner to summarily dismiss a complaint under the Racial Discrimination Act 1975 as misconceived and lacking in substance - complainant failed to gain appointment with the respondent Medical Centre as a Senior Visiting Dentist - whether any material before the Inquiry Commissioner indicated a real possibility of some connection between the non-appointment of the applicant and her race, colour, or national or ethnic origin - whether breach of the rules of natural justice because Inquiry Commissioner refused to order production of documents ruled to be irrelevant.

Racial Discrimination Act 1975

Assal v Department of Health, Housing and Community Services (1992) EOC 92-409

G.V.R. v Department of Health, Housing and Community Services (decision of Sir Ronald Wilson, delivered 23 August 1993)

Solicitor for the 1st respondent : Australian Government Solicitor

Counsel for the Human Rights Commission as intervener : Mr S V Cullimore

Solicitor for the intervener : Australian Government Solicitor

1. The application for an order for review be dismissed.

2. The applicant pay the second respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

VON DOUSSA J This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision made by the first respondent, Mr T A Worthington QC, sitting as Inquiry Commissioner under the Racial Discrimination Act 1975.

2. On 30 June 1994 the Inquiry Commissioner dismissed a complaint made by the applicant under the Racial Discrimination Act as being misconceived within the meaning of s.25X of that Act which provides:

"25X. Where, at any stage of an inquiry, the Commission is

satisfied that a complaint is frivolous, vexatious, misconceived,

lacking in substance or relates to an act that is not unlawful by

reason of a provision of Part II, it may dismiss the complaint."

3. The applicant had applied for employment in her capacity as a registered dentist with the second respondent, the Adelaide Medical Centre for Women and Children ("the Medical Centre"), following an advertisement inserted in an Adelaide newspaper in January 1992. There was some delay before applications received in response to the advertisement were processed. There is no need to go into the reasons for that. In August 1992 the applicant was invited to attend for interview for the position of Senior Visiting Dentist. She did so on 20 August 1992. She and three other applicants were interviewed for the same position. Two of the four dentists interviewed were appointed. Two were unsuccessful. The applicant was one of the unsuccessful ones.

4. The applicant complained to the Human Rights and Equal Opportunity Commission that the respondent had been guilty of conduct that contravened s.15 of the Racial Discrimination Act. That section provides relevantly:

"15(1). It is unlawful for an employer or a person acting or

purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work of any

description which is available and for which that second

person is qualified;

...

by reason of the race, colour or national or ethnic origin of that

second person or of any relative or associate of that person."

The complaint was referred to the Commissioner for Equal Opportunity in South Australia as a delegate of the Race Discrimination Commissioner. Pursuant to s.24 of the Race Discrimination Act, the delegate decided not to inquire into or not to continue to inquire into the act in respect of which the complaint had been made. The delegate did so because she considered the complaint to be lacking in substance. The applicant was notified of that fact. The applicant then exercised her right under s.24(4), to request that the complaint be referred to the Human Rights and Equal Opportunity Commission. That led to the inquiry before Mr Worthington QC.

5. Pursuant to s.25V, in conducting an inquiry under the Racial Discrimination Act the Inquiry Commissioner was not bound by the rules of evidence. He was at liberty to inform himself on any matter in such manner as he thought fit. He was required to conduct the inquiry with as little formality and technicality, and with as much expedition, as the requirements of the Act and the proper consideration of the matters before him permitted. The section also permitted him to give directions relating to procedure that, in his opinion, would enable costs or delay to be reduced and would help to achieve a prompt hearing of the matter at issue between the parties.

6. Before the inquiry hearing commenced the Medical Centre by letter requested the Inquiry Commissioner to dismiss the complaint under s.25X. The applicant also asked that subpoenas be issued to each of the seven members of the Medical Appointments Committee which had conducted the interviews for the position of Senior Visiting Dentist, and she also wrote to the Medical Centre asking that she be supplied with copies of various documents. The Inquiry Commissioner stood over the obligation of the members of the Medical Appointments Committee (other than Dr Fotheringham) to attend until further notice indicating that he thought it inappropriate that they give up their professional commitments, and in the case of two of them return from overseas, until the s.25X application had been considered. At the commencement of the inquiry hearing the Inquiry Commissioner dealt with outstanding requests by the applicant for documents. In the case of four of the classes of document requested by the applicant the Inquiry Commissioner ruled that they could not be relevant to the inquiry and directed that they not be produced by the Medical Centre.

7. After dealing with the applicant's request for documents from the Medical Centre, and before considering the Medical Centre's application under s.25X, the Inquiry Commissioner directed that the applicant outline to him the nature of her complaint and the facts that she relied upon. She did so by giving evidence and the Inquiry Commissioner assisted her to identify the matters about which she complained. At the conclusion of her evidence the Inquiry Commissioner heard evidence from Dr Fotheringham, the Director of Medical Services for the Medical Centre, who had been principally concerned with the arrangement and conduct of the selection interviews. It was not until Dr Fotheringham had given his evidence and been cross-examined by the applicant that the Inquiry Commissioner considered the Medical Centre's application under s.25X.

8. The Inquiry Commissioner reserved his decision on the application under s.25X. He delivered written reasons for dismissing the complaint some two weeks later. The Inquiry Commissioner referred to a decision of the President of the Commission, Sir Ronald Wilson, in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 where the learned President said:

"I find it consistent with the pastorally sensitive and

conciliatory purpose of the Act to interpret the power of summary

dismissal conferred by s.25X as reflecting the intention of the

legislature that it is in the public interest, as well as in the

interests of both parties, that the hearing of a complaint which

is clearly shown to be lacking in substance should be summarily

terminated. Certainly, it is no kindness to a complainant to

shrink from the exercise of power conferred by s.25X of the Act in

circumstances where that exercise is clearly warranted."

The Inquiry Commissioner applied that statement of principle. He concluded that there was no material before him that raised any possible connection between the failure of the applicant to obtain appointment following interview, and her race, colour, national or ethnic origin. In those circumstances he concluded that the complaint was misconceived and therefore lacking in substance.

9. It is not disputed that the Inquiry Commissioner had correctly identified the issue that arose for consideration under s.15 of the Racial Discrimination Act. The Inquiry Commissioner recognised that it was necessary first that the applicant show conduct for which the Medical Centre was responsible that discriminated against her in a way described in s.15(1)(a) and secondly, that it be shown that at least a reason for the discriminatory conduct was the race, colour, or national or ethnic origin of the applicant. That formulation of the second of these requirements follows from s.18 of the Act which provides that where an act is done for two or more reasons and one of the reasons is the race, colour, descent, or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act, then for the purposes of the Act, the act is taken to be done for that reason.

10. The application for an order of review was issued by the applicant in person. She complains that she is aggrieved by the decision of the Inquiry Commissioner because (1) there was no evidence or other material to justify the making of the decision and (2) a breach of the rules of natural justice occurred in connection with the making of the decision. The grounds for the application enlarge only on the first of these contentions:

"There was no evidence or other material to justify the making of

the decision in that (the Inquiry Commissioner) concluded that

documentary evidence or cross-examination of witnesses the

applicant required to be summonsed was not necessary."

11. The President of the Commission, Sir Ronald Wilson, sitting as an Inquiry Commissioner in Adelaide in the matter of G.V.R. v Department of Health, Housing and Community Services, decision delivered on 23 August 1993, said:

"The meaning of the term 'lacking in substance' has been

considered in a number of decisions of this Commission. My view,

which is one I have expressed previously in Assal v Department of

Health, Housing and Community Services, is that a claim which

presents no more than a remote possibility of merit and which does

no more than hint at a just claim would ordinarily be found to be

lacking in substance."

I respectfully agree with that statement. It follows that the primary issue raised by ground (1) of the application is whether there was material before the Inquiry Commissioner which indicated a real possibility of there being some connection between her non-appointment to the position for which she was interviewed and her race, colour or national or ethnic origin.

12. The applicant has taken the Court through the documents that were before the Inquiry Commissioner and has explained at some length the nature of her complaint. In my opinion the applicant has not demonstrated that any such connection was an open possibility on the information, documentary or otherwise, that was put before the Inquiry Commissioner. I am unable to find in any of the material even a remote possibility or hint of any connection between the applicant's failure to gain appointment and her race, colour or national or ethnic origin. Her evidence before the Inquiry Commissioner did not identify any possible connection; rather her evidence put forward a number of complaints about the fairness of the selection process and advanced the argument that certain deficits in the selection procedures resulted in the appointments not being made fairly on merit. In particular the applicant argued that the Medical Appointments Committee erroneously concluded that she was lacking particular skills and experience when in fact she possessed the skills and experience that were required. After those complaints were made, the following exchanges occurred between the Inquiry Commissioner and the applicant:

"Commissioner: Yes. Can I just ask you this, what is it you say

indicates to you that there was discrimination against you based

on racial discrimination? What do you say is the basis for making

that allegation?

Applicant: Well...I am me.

Commissioner: Yes, I understand that.

Applicant: All the other applicants are different and if they had

the same qualifications that I had, at least, I hold, would they

not have been given a position?

Commissioner: Well, they did not all get the position. Two of

them got it and they shared it.

Applicant: No, having all these qualifications, if I do not get

the position then there is some discrimination of what sort, my

name or whatever it may be.

Commissioner: Just to sort of develop that, I suppose it is fair

to say that if you have got, say, two people going for a job and

one gets it and one does not, that means that one of them has been

discriminated against in the sense that they have not been

preferred."

"So I can understand what you say when you say that there was some

discrimination. I am not necessarily agreeing, but I can

understand what you say, but what I am asking you is why do you

say that that selection process, if I can call it that, or

preference had anything to do with racial bias, and, of course...

Applicant: I do not know.

Commissioner: You do not know?

Applicant: Because they did not ask me that question. They

should have asked me what special skills I had.

Commissioner: Why is that related to race?

Applicant: I do not know. If they were asking everyone the same

question, then they should have asked me that question. In fact,

they should have asked me all those questions - because if there

is no record of my answer and they have said something was very

poor...

Commissioner: So I understand it from your complaint, you (sic -

I) just want to be sure about this - that do you say nothing was

said or done at the interview concerning race - concerning your

race, and that is true, is it not?

Applicant: That is true, yes."

The Inquiry Commissioner was at that point referring to a statement which accompanied the original complaint made to the Human Rights and Equal Opportunity Commission by the applicant in which she had said:

"Although nothing was said or done at the interview concerning my

race, I believe that I did not obtain a position partly as a

result of that feature. I base that belief upon my view that I

hold all the qualifications for the position, yet was

unsuccessful."

13. The documents from the Medical Centre, which were obtained by the applicant and tendered by her at the hearing, and the evidence from Dr Fotheringham, assert that the Medical Appointments Committee, before any of the four applicants were interviewed, met and settled upon five questions that were to be asked of each of the four applicants for the position of senior visiting dentist. The selection committee also settled upon a sixth question which was to be asked of other people who were being interviewed at that time for a higher specialist position by the same Committee. Further, when the interviews of the four applicants for the position of Senior Visiting Dentist were conducted, each of the five questions was asked of each applicant.

14. The present applicant, however, complains that she was not asked or fully asked, at least two and possibly three of those questions, being questions 1, 4 and 5. She also complains that the Committee did not follow guidelines that had been laid down in a circular identified as "Circular No. 1.82, Selection of Staff", in that the Committee did not record answers to the questions that were asked. This is the substance of her grievance. In the absence of answers the applicant argues that she is not able to now demonstrate that either the questions were not asked, as she asserts, or if they were asked, as the Committee asserts, that her answers indicated skill and experience that should have led to her appointment on merit. It should be noted that the "Circular No. 1.82 Selection of Staff" whilst referring in paragraph 13 to the desirability of an appointments committee keeping notes, also puts forward an alternative procedure, namely the keeping of scores. The documents which have been tendered include a summary of scores awarded by the Committee for each of the four applicants, which indicate that of the four applicants, the present applicant received the lowest score on four matters that were assessed, and that each of the applicants met the basic requirements of having a minimum of three years' experience in paediatric dentistry, and being a registered dentist.

15. The grievances which the applicant enlarged upon go to the assessment of the comparative skill and experience of four applicants, that is to the merits of the appointments which were made. No question of race, colour or national or ethnic origin is disclosed.

16. Complaints were also made by the applicant that there was a difference in wording between a "personal specification" and a "job specification" that were given to the four applicants, but it seems clear on the papers and on the applicant's submissions to this Court that if the differences between those documents created a disadvantage, it was a disadvantage suffered by all four applicants. The evidence of the present applicant before the Inquiry Commissioner and her submissions today, do not articulate any reason to support an inference that her unsuccessful scores on the merits of her application were in any way related to her race, colour or national or ethnic origin.

17. The applicant's complaints before the Inquiry Commissioner did not show a real possibility of there being an issue under the Racial Discrimination Act. It was, as I have said, rather a complaint about the selection process and a failure to properly recognise her skill and experience. In my view, the decision reached by the Inquiry Commissioner that the complaint was misconceived and without substance, was not only open on the information before him, but was the only decision reasonably open.

18. The subsidiary issue raised under ground (1) of the application for an order of review is that the Inquiry Commissioner concluded that the cross-examination of witnesses summonsed by the applicant was not necessary. The power under s.25X is, according to its terms, a power to summarily dismiss a complaint "at any stage of an inquiry". The procedure adopted in this case by the Inquiry Commissioner was to hear fully the evidence of the applicant, and also to give her the opportunity to question the principal witness for the Medical Centre before considering whether the power under s.25X should be exercised. That procedure gave the applicant every opportunity to explain the nature of her grievance and to point to any information that might suggest that her race, colour or national or ethnic origin played a part in the deliberations of the Medical Appointments Committee. Her evidence, the records of the Medical Centre, and the evidence of Dr Fotheringham failed to show any possibility that this was the case. In these circumstances I do not consider the Inquiry Commissioner made any error of law in exercising the discretionary power to summarily dismiss the complaint when he did. There was nothing in the information adduced by the applicant which suggested that anything relevant to her complaint would be revealed by allowing her to summons and question the other members of the Medical Appointments Committee.

19. The second ground raised in the application for an order of review is that of a breach of the rules of natural justice. Upon questioning by the Court, the applicant identified that allegation as being based on the Inquiry Commissioner's refusal to receive into evidence the four classes of documents which she had requested from the Medical Centre before the hearing. Those four classes of document, which are numbered 7 to 10 in a letter dated 6 May 1994, deal with statistics of the dental department of the Medical Centre, from 1971; the Protocol for Research done in the dental department from 1971; the South Australian Birth Defects Register annual report 1991; and publications by the staff of the dental department of the Medical Centre. The last document relates, I infer, to research programs.

20. The applicant complains that these documents were required to show the type of special skills and experience which could be relevant to an appointee to the position for which she was interviewed. The knowledge of these special skills and experience is said to be relevant to the case because the Medical Appointments Committee made reference in its assessment of the four applicants to the experience of the present applicant as one of the reasons for her low score. The present applicant argues that she needed to have those documents to demonstrate to the Inquiry Commissioner that she had skills and experience of the kind required by the Medical Centre, so that if questions about her skills and experience had been asked, she would have given a good account of herself, and therefore would have improved her prospects for selection.

21. I agree with the decision made by the Inquiry Commissioner. In my view, the documents, even if they had the potential to demonstrate the skills and experience of people required at the Medical Centre, would not have advanced the applicant's case. They may have been relevant had the Inquiry Commissioner been concerned to reassess the merits of the selection process. But that was not the function of the Inquiry Commissioner. Unfortunately, if I might say so with respect to the applicant, it is apparent that she misconceived the nature of the function of the Inquiry Commissioner.

22. The function of the Inquiry Commissioner was not to review or to condemn procedures laid down by the Medical Centre for the selection of staff. The Inquiry Commissioner's function was limited to the question raised by a complaint under s.15 of the Racial Discrimination Act; that is, whether the failure of the applicant to obtain appointment (which the Inquiry Commissioner accepted was discriminatory in the sense that she did not, but two others of the four did, obtain appointment) was for a reason due to her race, colour or national or ethnic origin. And that was the only question.

23. I should add also that the Inquiry Commissioner, in his careful reasons for decision, has said that he was conscious that one must be alert to the possibility of concealed or systematic racism, where persons running a large institution such as a hospital may consciously or perhaps unconsciously, apply racist guidelines in selecting personnel, and he addressed that wider question. He did not confine his considerations merely to the evidence of the applicant. However, he said that before those wider considerations could possibly raise an issue for further inquiry, there needed to be at least some cogent evidence that could suggest the possibility, and there was none in the information before him.

24. In my opinion, the application to this Court raises no error of law by the Inquiry Commissioner, and the application for an order of review must be refused. I order that the applicant pay the costs of the respondent Medical Centre.