Scott v Human Rights and Equal Opportunity Commission

BACKGROUND 3 As noted by the Federal Magistrate, the applicants have a long history of litigation with Centrelink, and its predecessor the Department of Social Security. The factual matters forming the background to this claim are set out in Scott v Pedler [2004] FCAFC 67 per Conti J (Gyles and Allsop JJ agreeing). I do not propose to repeat them in detail here. 4 In summary, the present proceeding arises out of HREOC's decision on 28 August 2006 to decline to investigate the applicants' complaint initiated by letter on 29 May 2006. The applicants' complaint related to the conduct of Centrelink and the Commonwealth of Australia, and decisions of the High Court of Australia and the Federal Court of Australia relating to that conduct. The complaint alleged violations of the applicants' human rights in contravention of the International Covenant on Civil and Political Rights, the Declaration on the Rights of Disabled Persons, the Crimes Act 1958 (Vic), and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment. It is plain enough from their letter of 29 May 2006 that the applicants were complaining about the conduct that had already been the subject of the previous court proceedings. In section I of the applicants' letter of 29 May 2006, which was headed 'The nature of the complaint', the applicants list their complaints as relating to: · the "[d]ecision of the High Court of Australia in Scott & Anor v Pedler & Ors [2005] HCATrans 1002" and the "Federal Court of Australia in Scott & Anor v Pedler & Ors [2004] FCAFC 67"; and · the conduct of Centrelink, particularised in section II of the complaint, "Substantiation of the complaint" by reference to decisions of the High Court of Australia in "Scott & Anor v Pedler & Ors [2005] HCATrans 1002" and the Full Court of the Federal Court of Australia in "Scott & Anor v Pedler & Ors [2004] FCAFC 67." 5 HREOC declined to investigate the applicants' claims. Referring to s 20(2)(c)(iii) of the HREOC Act, the delegate of the President of HREOC stated that "the subject matter of your [the applicants'] complaint has been adequately dealt with". Reference was made to the applicants' extensive litigation history. Relying on s 20(2)(c)(ii) of the HREOC Act, the delegate also held that the applicants' complaint was misconceived. The delegate considered that the doctrine of judicial immunity protected the High Court and Federal Court from the investigation that the applicants sought. Citing Re East: Ex Parte Nguyen (1998) 196 CLR 354 ("Nguyen"), the delegate stated that the doctrine extended to "protection from claims brought under Commonwealth anti-discrimination and human rights laws". Additionally, the delegate was of the view that it was "arguable whether or not the human rights provisions in the HREOC Act apply to an act or practice of the Federal Court of Australia and the High Court of Australia in the exercise of its judicial power" due to the separation of powers doctrine. It was the delegate's opinion that HREOC's power to investigate an act or practice of the Commonwealth "is generally limited to the Commonwealth within its executive role."

THE DECISION OF THE FEDERAL MAGISTRATE 6 The applicants applied to this Court for judicial review of HREOC's decision to decline to inquire. By order dated 4 December 2006, Sundberg J transferred the proceedings to the Federal Magistrates Court. On 2 March 2006 the second respondent made an application for summary judgment. 7 The Federal Magistrate gave judgment for the second respondent on 18 October 2007, in which he summarily dismissed the application for judicial review. In so doing, the Federal Magistrate briefly set out the background to the action and referred to the previous actions that have been pursued by the applicants. 8 In considering whether the applicants' judicial review application had no reasonable prospect of success, the Federal Magistrate considered two matters. First, his Honour considered whether there might be any error in HREOC's determination that the complaint had been adequately dealt with. In relation to this matter, the Federal Magistrate stated at [29]: No reasonable basis exists for arguing that the commission [sic] was not entitled to come to the conclusion it did. Two judges of the Federal Court heard evidence given by all involved. They found no cause for complaint against the Department or its officers, in fact the contrary. Appeals against the decisions were dismissed. The commission [sic] relied on those cases and the findings made in coming to its conclusion. There is no reasonable argument that the Commission, in doing so, took into account anything other than what was relevant or that there was an improper exercise of power. 9 Secondly, the Federal Magistrate considered HREOC's grounds in relation to s 20(2)(c)(ii) (judicial immunity and separation of powers). The Federal Magistrate stated: The commission [sic] decided that the claims against the courts are misconceived because it has no authority to inquire into the activities of courts. In Ex parte Nguyen (1998) 196 CLR 254 the High Court dealt with a claim that a Magistrate and a Chief Judge had discriminated against a litigant on the basis of race. The High Court referred to the immunity from suit which protects judicial officers from actions arising out of the judicial function. They said there was nothing in the Race Discrimination Act that suggests that Parliament intended to override the immunity. The same reasoning applies to the Human Rights and Equal Opportunity Commission Act. The Commonwealth's submissions put other arguments but the High Court's decision is sufficient grounds for saying that the applicants have no reasonable prospects of success in the complaint that the Commission was in some way wrong in not proceeding with the complaint against the courts.

LEAVE TO APPEAL 10 The applicants advanced six grounds upon which they contended that this Court should grant leave to appeal against the Federal Magistrate's decision. Those grounds were expressed in a draft notice of appeal and in a supporting affidavit as follows: a) The Court erred in the interpretation of s.20(2)(c)(iii) of the Human Rights and Equal Opportunity Act 1986 that adequacy may be dealt with by means of stating that judges heard evidence and made findings. Function of the HREOC under s.11(1)(f) of the HREOC Act and the mandatory nature of art.2(3)(a) of the International Covenant on Civil and Political Rights mean that the HREOC may not decline to investigate the merituous complaintand may not deny any remedy to persons whose rights and freedoms contained in the ICCPR are violated and when the judicial findings are wrong on evidence and constitute miscarriage of justice. b) The Court relied on the non existing fact and erred in law deciding that because "[t]wo judges of the Federal Court heard evidence given by all involved" the HREOC was entitled to come to the conclusion that the complaint had been adequately dealt with. Departmental officers I. Peak and S. McLeod involved in the matter were not giving evidence before the stated above two judges of the Federal Court. c) Documentary evidence from Centrelink incontrovertibly proves that officers I. Peak and S. McLeod committed the tort of fraudulent representation, by which also contravened human rights within the meaning of the HREOC Act towards the applicants. The accepted by the Court reliance on the alleged evidence given by the above stated officers before two judges of the Federal Court, even assuming the existence of that evidence - what the applicants deny, and on findings of the Federal Courts in preference to the above stated incontrovertible documentary evidence constitutes an error of law/prejudgement. d) Documentary evidence from Centrelink incontrovertibly proves that Centrelink used towards the applicants torture/cruel, inhuman, degrading treatment by denying a benefit. The accepted by the Court reliance on evidence of Centrelink officers and findings of the Federal Courts, in preference to the above stated incontrovertible documentary evidence constitutes an error of law/prejudgement. e) Documentary evidence from Centrelink and from the Federal Court incontrovertibly proves that all Centrelink officers involved in the matter acted in concert by unlawful or illegal means and with the common purpose of not accepting the second applicant's entitlement to a pension on physical impairment. The accepted by the Court reliance on evidence of Centrelink officers and on findings of the Federal Court, in preference to the above stated incontrovertible documentary evidence constitutes an error of law/prejudgement. f) Evidence of the removal of original evidence from the Centrelink files which was establishing knowledge and "the guilty state of mind" was not available during the first set of the Federal Court proceedings; evidence showing analysis and rejection of medical evidence about significant physical impairment of the second applicant by officer Chrystal in 1995 is a fresh evidence not presented before the Federal Courts, but presented in the Federal Magistrates Court below as the fresh evidence. The Court erred in rejecting the appellants' application by infringing the principle that justice must be done and must indoubtedlyseen to be done. 11 The applicants filed submissions in support of their application. So far as is relevant, the applicants' submissions may be summarised as follows. The applicants submitted that the Federal Magistrate erred in: · accepting that s 20(2)(c)(iii) empowered HREOC to decline to investigate a matter simply on the grounds that "judges heard evidence and made findings"; · accepting that "[t]wo judges of the Federal Court heard evidence given by all involved" when two officers, Mr Peak and Mr McLeod, had not in fact given evidence; · failing to have regard to "incontrovertible documentary" evidence that is said to establish that Mr Peak and Mr McLeod committed the tort of "fraudulent representation" and also "contravened human rights", that Centrelink had tortured and used cruel, inhuman and degrading treatment by denying a benefit; and · failing to have regard to new evidence in relation to Centrelink's rejection of the second applicant's application for a special benefit. 12 In oral submissions, Mrs Scott developed the applicants' case for leave to appeal, submitting that the Federal Magistrate erred in failing to recognise that HREOC erred because: · the decisions of the Federal Court and High Court upon which HREOC relied were flawed and contrary to the documentary evidence. HREOC was said to have erred in failing to examine the adequacy of these decisions, alternatively, in acting under dictation in accepting the decisions of the courts without conducting its own investigation; and · the "subject matter" of the decisions of the Federal Court and High Court was not the same as the subject matter of the complaint to HREOC, because the complaint to HREOC related to allegations of breaches of human rights and the decisions had not dealt with those matters. 13 After the hearing on 5 December 2007 and prior to judgment, further submissions were received by the Court (notwithstanding the lack of leave). It is unnecessary to refer to the contents of these submissions, which do not effect what is said below. 14 HREOC has filed a submitting appearance in accordance with the principle in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36. 15 The Commonwealth of Australia made submissions in opposition to the grant of leave, as well as in opposition to the applicants' other motions.

CONSIDERATION 16 The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. 17 The decision is not attended by sufficient doubt to warrant it being reconsidered. The applicants' judicial review application stated the following grounds: failure to take into account relevant considerations; taking into account irrelevant considerations; exercising discretion at the behest of another; improper exercise of power; unreasonable exercise of power; and abuse of power. The gravamen of the applicants' allegations appears from their affidavits and submissions. 18 Consideration of the applicants' challenge to HREOC's decision does not suggest any appealable error in the Federal Magistrate's decision. As we have seen, HREOC acted in reliance on s 20(2)(c)(ii) and (iii) of the HREOC Act, which provide as follows: (2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if: … (c) in a case where a complaint has been made to the Commission in relation to the act or practice: … (ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; [or] (iii) where some other remedy has been sought in relation to the subject matter of the complaint - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with … 19 The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration. Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit. In this Court and the High Court, Centrelink's conduct regarding Mr and Mrs Scott has been the subject of the following decisions: · Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J); · Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ); · Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused); · Scott v Pedler [2003] FCA 650 (Gray ACJ); · Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and · Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused). 20 In effect, the applicants have asked HREOC to examine the decisions of this Court and the High Court concerning their claims against Centrelink. For the most part, the judgments of this Court have been the subject of appeal or application for special leave to appeal. That is, they have already been the subject of examination and consideration by another court in the court hierarchy. Paragraph 20(2)(c)(iii) enables HREOC to decline to investigate a complaint where HREOC is of the opinion that the subject matter of the complaint has been adequately dealt with. HREOC may so conclude where the subject matter of the complaint has already been the subject of scrutiny by another person or body (such as a court). The applicants have been unable to point to anything in the present case that might raise an arguable ground for judicial review in respect of HREOC's decision to decline to inquire on the basis of an opinion formed in accordance with s 20(2)(c)(iii) of the HREOC Act. No error would appear in the Federal Magistrate's decision in this regard. 21 Furthermore, Nguyen supports HREOC's decision to decline to inquire on the basis of an opinion formed under s 20(2)(c)(ii). Nguyen concerned a claim that a State magistrate and the Chief Judge of the County Court of Victoria contravened s 9 of the Racial Discrimination Act 1975 (Cth) by not providing the applicant with a copy of a Community Based Order Breach Report in his first language and by not providing an interpreter. In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ held that there was a fundamental difficulty with "the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act". This was because (at 365-366): [T]here is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity. It was plainly open to HREOC to consider that the principle of judicial immunity prevented it from undertaking the investigation that the applicants sought. There is no suggestion of error in the Federal Magistrate's decision in this regard either. 22 Mr and Mrs Scott cannot satisfy the first limb of the test for leave to appeal. That is, they have been unable to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court. 23 As we have seen, the courts have already given extensive consideration to their claims and have given judgment. The time has come for Mr and Mrs Scott to turn away from their dispute with Centrelink over the Special Benefits payment. 24 I would refuse the application for leave to appeal. Further, the applicants have not shown that they have any entitlement to the relief sought in their motion, notice of which was dated 26 November 2007. I would dismiss this motion and the applicants' motion, notice of which was dated 29 November 2007. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Counsel for the Applicant: The applicants appeared in person

Counsel for the Second Respondent: Mr P.J. Ginnane

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 5 December 2007

Date of Judgment: 21 December 2007