Shammas v Canberra Institute of Technology

The proceedings before Foster J 11 The proceedings which were dismissed by the judgment were founded upon a complaint to the Australian Human Rights Commission ("the AHRC") lodged on 6 February 2013. 12 The primary judge identified how that complaint became confined, and how the proceedings in this Court were commenced, as follows: 2 By formal complaint dated 6 February 2013 lodged with the Australian Human Rights Commission (AHRC) (the original complaint), the applicant claimed: (a) To have been sexually harassed; (b) To have been discriminated against because of her sex, because of her race, because of a disability which she claims to have and because of her age; (c) To have had her human rights (said to be her right to privacy) breached by Australian Security Intelligence Organisation (ASIO) and staff of the Institute at its Southside campus; and (d) To have been racially vilified. 3 The original complaint was lodged against ASIO, against unidentified employees of ASIO, against the Institute and against six (6) named persons who were either staff employed by the Institute or students at the Institute's Southside campus at the time when the applicant was a student there in 2010-2011. 4 The original complaint comprised nineteen (19) pages of typescript and 138 pages of attachments. 5 By email sent at 4.53 pm on 15 March 2013, the applicant informed the AHRC that she wanted to proceed with only one complaint, namely, her complaint against the Institute itself for encouraging or causing two of its students to sexually harass her. She said that her complaint of sexual harassment related to one incident only. In effect, by that email, she withdrew entirely her complaint against ASIO and its officers. She also withdrew her complaints against the Institute and others of unlawful discrimination against her on the grounds of sex, race, disability and age as well as her claim that her right to privacy had been breached and her claim that she had been racially vilified. She also withdrew her complaint insofar as it related to individual staff and students of the Institute. … 9 The applicant commenced this proceeding on 5 July 2013 when she filed an Originating Application under s 46PO of the AHRC Act. In her Originating Application, the applicant claims to be a victim of unlawful discrimination at the hands of the Institute in breach of s 105 of the Sex Discrimination Act 1984 (Cth) (SD Act). She claims compensation. In her Originating Application, her claim is expressed in the following terms: The Applicant claims that: 1. I have suffered sexual harassment by two students in my class when I did a course of Business Administration in Canberra Institute of Technology "CIT" Southside, staff in CIT causing, instructing, inducing, aiding and permitting the doing of that unlawful act under the Sex Discrimination Act 1984 "SDA" and Human Rights Act. 13 The applicant's pleaded case was identified by the primary judge in the following terms: 17 The applicant's Statement of Claim does not conform to the requirements of the FCR or the practice of the Court and contains allegations which are, at times, difficult to follow. However, doing the best I can, I think that her case, as pleaded in her Statement of Claim, may be summarised as follows: (a) From the time of her arrival in Australia in mid-November 2009, the applicant has been under continuous surveillance by ASIO. In particular, she was under surveillance by ASIO when she attended the Southside campus of the Institute for a little over 12 months between February 2010 and March 2011. (b) In August 2010 (apparently on one occasion only during a class being held at the Institute), two students, whom I shall call AK and AM, "looked at the applicant up and down, glaring and leering in an obvious way assessing her body" when she left her place in class in order to ask the class teacher a question. The behaviour of AK and AM was very offensive to the applicant, especially as she was a mature student in a class of persons who were generally younger than her and a recent arrival in Australia. AK and AM were aged in their 20s in August 2010 while the applicant was 45 years of age at that time. (c) The incident described in subpar (b) above occurred as a consequence of ASIO breaching the applicant's privacy in her family home by listening to the conversations which she had there with members of her family and by disclosing to staff of the Institute the subject matter of one particular private discussion which had taken place between the applicant and a member of her family at her home. The information which ASIO disclosed to staff of the Institute was the fact the applicant had told her family in the privacy of her home that she had gained weight since her arrival in Australia. (d) The Institute instructed AK and AM to behave as they did. That is, the Institute instructed AK and AM to look at the applicant in the fashion alleged by her. (e) On 19 October 2010, the applicant complained to staff of the Institute about this incident of alleged sexual harassment and also complained at the same time about several other matters. (f) After the applicant complained to the Institute, the Institute failed to investigate her complaints at all or failed to investigate her complaints properly. The Institute's failure to investigate her complaints at all or properly demonstrated that it had instructed AK and AM to behave as they did. 14 The statutory provisions upon which the applicant's case depended were identified by the primary judge as ss 28A, 28F(2)(a), 105 and (possibly) 106 of the Sex Discrimination Act 1984 (Cth) ("the SD Act"). They provide: 28A Meaning of sexual harassment (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. (2) In this section: conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. … 28F Educational institutions … (2) It is unlawful for a person who is an adult student at an educational institution to sexually harass: (a) a person who is a student at the institution; or … (3) In this section: adult student means a student who has attained the age of 16 years. … 105 Liability of persons involved in unlawful acts A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act. 106 Vicarious liability etc. (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph. 15 The primary judge initially identified two matters fatal to the applicant's pleaded case based on either s 105 or s 106 of the SD Act: 27 The conduct upon which the applicant relies as constituting sexual harassment of her is conduct undertaken by AK and AM. AK and AM were students at the Institute at the relevant time. The applicant pleads and argues that the Institute instructed AK and AM to behave as they are alleged to have done towards the applicant. In that way, the applicant picks up one of the terms mentioned in s 105 and seeks to rely upon s 105 as the basis upon which the Institute is to be made liable for the conduct allegedly undertaken by AK and AM. The applicant relies upon s 105 only in her Originating Application although she refers to both s 105 and s 106 in her Statement of Claim. Because s 105 cannot be engaged at all in the present case, for the reason that it only applies to unlawful acts which are made unlawful under Div 1 or Div 2 of Pt II of the SD Act and does not apply to acts which are made unlawful under other parts of the SD Act (such as Div 3 of Pt II where s 28F is to be found), the applicant's case cannot succeed. For this reason alone, I would dismiss the current proceeding pursuant to s 31A of the Federal Court Act and under r 26.01 FCR. 28 Against the possibility that it may be thought that the applicant has, in fact, invoked s 106 of the SD Act as a basis for rendering the Institute liable for the conduct of AK and AM, I now turn to address the question of whether s 106 can be engaged in the present case. 29 Section 106 provides for vicarious liability to be imposed on a person in circumstances where the perpetrator of the relevant unlawful act is an employee or agent of that person and the unlawful act is carried out in connection with the employment of the employee or with the duties of the agent as an agent. Neither AK nor AM is alleged by the applicant to have been an employee or agent of the Institute when they committed the acts which are said to constitute sexual harassment of the applicant. There is no evidence before me that establishes or even suggests either of those students was an employee or an agent of the Institute at the relevant time. 30 For the reasons which I have explained at [29] above, s 106 is not and cannot be relied upon by the applicant in the present case. 16 Nevertheless, the primary judge went on to examine the applicant's complaint in greater detail. Before doing so he recorded (at [35] to [49]) that the applicant had pursued a number of complaints before the ACT Human Rights Commission, the ACT Civil and Administrative Tribunal, the Supreme Court of the ACT and the ACT Court of Appeal. Those proceedings did not involve the same issues which were before the primary judge and later in the judgment (at [64]) the primary judge rejected a submission by the respondent that the proceedings commenced in this Court were an abuse of process. 17 The primary judge rejected the substance of the applicant's complaint in the following terms: 58 A critical integer of the applicant's case as pleaded is the proposition that the Institute actually instructed AK and AM to behave as they allegedly did towards the applicant. The applicant should not have pleaded that allegation unless she had a basis for so doing. If she had such a basis, she was obliged to plead all facts and matters upon which she intended to rely at the trial as constituting the alleged instruction. The applicant has not pleaded any such facts and matters but has merely regurgitated the language of s 105 of the SD Act. When I asked the applicant during argument at the hearing before me to tell me the basis upon which she intended to assert that the Institute had instructed AK and AM to behave as they did, she was unable to do so. It is quite clear to me that not only has the applicant not pleaded facts and matters to support such a contention but it is also clear that she is simply unable to do so because she has no basis for making that allegation. Even if, contrary to the conclusions which I have reached as to the applicability of s 105 and s 106 of the SD Act in the circumstances of the present case (as to which see [25]-[30] above), one or other of s 105 or s 106 could conceivably be engaged in the present case, the incapacity of the applicant to plead facts and matters to support her contention that the Institute instructed AK and AM to behave as they did is fatal to her case. 59 In addition, I do not think that the conduct of AK and AM as described by the applicant is capable of meeting the definition of sexual harassment contained in s 28A of the SD Act. There was no request for sexual favours and no sexual advance, let alone an unwelcome sexual advance. Nor, as described, is the conduct capable of constituting other unwelcome conduct of a sexual nature within the meaning of s 28A(1)(b) of the SD Act. As described by the applicant, the conduct was a one-off incident; did not involve any verbal exchange between either AK and AM, on the one hand, and the applicant, on the other hand; did not involve any physical contact; and, at its highest, involved no more than very limited visual scrutiny which was perceived by the applicant as inappropriate. In addition, it took place in a lecture room or theatre at the Institute in the presence of other students and the lecturer. These features of the incident take it well outside that which is contemplated by the definition of sexual harassment set out in s 28A of the SD Act. 18 It may be seen, therefore, that the applicant's case was found to be fatally flawed in at least three respects: (a) neither s 105 nor s 106 of the SD Act applied in a way which could support her complaint against the respondent; (b) the applicant was unable to identify (much less establish) the factual basis for her allegation that the respondent had instructed or encouraged sexual harassment against her; (c) the allegedly sexually harassing conduct did not amount to sexual harassment within the meaning of s 28A of the SD Act. 19 Any one of those findings was fatal to the application before the primary judge.

The present application 20 It is only necessary, in the present case, to directly consider the first test stated in Décor, although the Full Court in Décor also referred with apparent approval to an observation that: " … the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations." 21 The present case does not involve any "fine balancing of considerations", so that potential difficulty may be put aside. 22 As I earlier observed, any one of the three findings I distilled above would be fatal to the application which was before the primary judge. In combination, the case supporting dismissal of the proceedings under s 31A of the FC Act was a very powerful one. 23 The applicant's case depended on bringing her allegations within the meaning of sexual harassment given by s 28A of the SD Act, and then fixing the respondent with responsibility for the contravention of s 28F of the SD Act. The primary judge found that the applicant failed in that endeavour, both factually and legally. 24 Both the applicant and the respondent filed comprehensive written submissions for the purpose of the present application. At the oral hearing, the applicant submitted a further written argument which developed the earlier written submissions and which represented the matters she wished to put orally. She also made some short, and well-focussed oral submissions. I have taken all those matters into account. 25 Notwithstanding her submissions, I can see no arguable case of error upon which the applicant might prosecute an appeal if leave to appeal was granted to her. 26 First, I see no reasonable prospect that an appeal court would take a different view of whether the facts alleged by the applicant fall within the meaning of sexual harassment in s 28A of the SD Act. However, I may proceed upon the contrary assumption in the discussion which follows, because the preliminary issue was whether relief of any kind might be available against the respondent, whatever might be said about the conduct of the other two students, who were not parties to the proceedings. 27 The inability of the applicant to identify in the pleadings, or in submissions, facts and circumstances which might establish that the respondent had instructed the behaviour of which she complained (as she had pleaded) meant first that her case could not succeed at a factual level. 28 In any event, a fundamental problem for any case of this kind (whether based on instruction, inducement, aiding or permission) was, as the primary judge pointed out, that s 105 does not operate in conjunction with s 28A and s 28F (which each appear in Div 3 of Pt II of the SD Act). Any case based on a combination of s 28A, s 28F and s 105 (as the applicant's case against the respondent was) was misconceived. 29 The applicant sought to meet this difficulty in her written submissions in part by relying upon a "Sexual Harassment Code of Practice" published by the AHRC, although as her own submissions acknowledge the code is not legally binding. Nothing in the code can alter the operation of the SD Act. The argument cannot be accepted. 30 The applicant also attempted to overcome this difficulty by referring to judgments in this Court where sexual harassment has been accepted as a form of discrimination on the ground of sex (see e.g. Aldridge v Booth [1988] FCA 279; Elliott v Nanda (2001) 111 FCR 240). The applicant argued that, in this way, a respondent might be found liable under s 105 of the SD Act for conduct which amounted to sexual harassment. It is not necessary to examine that question further in this judgment. Liability under s 105 can arise in relation to a case about discrimination on the grounds of sex which is brought under Division 1 or 2 of Part II of the SD Act, but the applicant's case was not brought under either of those Divisions of Part II. The applicant's case was brought under Division 3 of Part II of the SD Act, which deals separately with sexual harassment. As the primary judge pointed out, although the original complaint to the AHRC extended to a complaint about discrimination on the ground of sex, that complaint was later confined to one complaint only about sexual harassment. The proceedings in this Court were similarly confined. 31 Accordingly, there is no prospect that on appeal the applicant could rely on s 105 of the SD Act. 32 For the reasons given by the primary judge, any case based upon a combination of s 28A, s 28F and s 106 could not succeed either. Although s 106 extends in its operation to acts which are unlawful under Div 3 of Pt II of the SD Act (such as those proscribed by s 28F), the conditions for the operation of s 106 were not present as neither of the alleged sexual harassers was an employee or agent of the respondent. 33 The applicant argued in her submissions that s 106 of the SD Act was engaged by repeating the assertion that the respondent instructed the other two students to sexually harass her. This contention was rejected by the primary judge as one which the applicant had no basis for making. In her written submission the applicant repeated various assertions that staff of the respondent had co-operated with ASIO "to breach [her] privacy and instruct students to sexually harass her". At another part of her written submissions the applicant attributed this conspiratorial behaviour to the fact that she was pursuing "her case of privacy" against public servants in the Immigration Office. 34 I can see no prospect of those assertions being found to have been established on appeal if leave to appeal was granted. 35 Accordingly, there is no prospect that the applicant can show error in the rejection of her case based on s 106 of the SD Act.

Conclusion 36 As I said earlier, the applicant has made out a case for an extension of time in which to seek leave to appeal, and that extension of time will be granted. 37 However, in my view there is no reason to doubt the correctness of the judgment and no reasonable argument to support any appeal. Leave to appeal should therefore not be granted. 38 There is no reason why costs should not follow the result of the application for leave to appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.