Racial Discrimination Act 1975

Judiciary Act 1903

Sex Discrimination Act 1984

Human Rights and Equal Opportunity Commission Act 1986

Kordos v Plumrose (Aust.) (1989) EOC 92-256

Groves v Commonwealth of Australia [1982] HCA 21; (1982) 150 CLR 113

Attorney General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 Dixon J. at 249

Salemi v Minister for Immigration and Ethnic Affairs [1976] HCA 45; (1976) 137 CLR 388

General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125

Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 at 91

(1) That the application filed 16 August 2001 as against the fourth respondent, Commissioner of the Australian Federal Police is dismissed.

(2) That otherwise the application filed 20 December 2002 by the fourth respondent and the fifth respondent, for summary dismissal is dismissed.

(1) That the application filed 3 September 2002 as against the first respondent is dismissed.

(2) That otherwise the application filed 20 December 2002 by the first respondent and the second respondent, for summary dismissal is dismissed.

1. The applicant is a member of the Australian Federal Police. She alleges unlawful discrimination by reason of sexual harassment and victimisation. The claims are contained in two applications made to the court pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA).

2. The respondents in one application are three named members of the Federal Police, the Commissioner of the Australian Federal Police and the Commonwealth of Australia. In the other the Commissioner of the Australian Federal Police and the Commonwealth are the respondents. The applicant alleges that the activities constituting the harassment were carried out by the three name respondents and that the Commissioner and Commonwealth are vicariously liable for their actions.

3. The Commissioner and the Commonwealth have applied for summary dismissal. The Commissioner has applied for dismissal of all proceedings against him. The Commonwealth has applied for dismissal of claims of victimisation.

4. The submission on behalf of the Commissioner is twofold. First, it is said that the complaint by the applicant made to the Human Rights and Equal Opportunity Commission (HREOC) did not include a complaint against the Commissioner. If that is so, there cannot have been a complaint against the Commissioner terminated by the President of HREOC under section 46PE or section 46PH of HREOCA. Since such a termination is necessary for the court to have jurisdiction under section 46PO of HREOCA there cannot be a claim against the Commissioner. Second, it is submitted that the Commissioner is not the employer of members of the Federal Police and so cannot be vicariously liable for their actions. On behalf of both the Commissioner and the Commonwealth it is submitted that there cannot be vicarious liability for a claim of victimisation, so that that claim cannot be made against either the Commissioner or the Commonwealth.

5. Section 46PO permits application to the court alleging unlawful discrimination by one or more of the respondents to a terminated complaint. "Respondent" is defined in the section 3 as meaning, in relation to a complaint, "the person or persons against whom the complaint is made". Summary dismissal is sought. An order for summary dismissal will only be made in a very clear case: Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Salemi v Minister for Immigration and Ethnic Affairs [1976] HCA 45; (1976) 137 CLR 388.

6. The complaint to HREOC named the organisation the applicant was complaining about as "Australian Federal Police". Counsel for the Commissioner and Commonwealth said that the Commonwealth conceded that it was a complaint against it. The basis of the concession is that the Commonwealth, and not the Commissioner, is the employer of members of the Australian Federal Police.

7. Section 6 of the Australian Federal Police Act 1979 provides:

8. The argument put is that neither as a matter of law, nor as a matter of common usage, can the expression "Australian Federal Police" be taken as a reference to the Commissioner. For the applicant, it was submitted that given the nature of human rights and anti discrimination legislation a strict approach should not be taken.

9. I do not consider that the complaint can be read as a complaint against the Commissioner. Plainly as a matter of law he is not the Australian Federal Police. His appointment by Commission by the Governor is provided for in section 17 of the Australian Federal Police Act. Section 6 makes it clear that he is part only of the force. His position in relation to the other members of the force is provided for in section 23. On behalf of the Commonwealth, he has all the rights, duties and powers of employer in respect of AFP employees. By section 37 the Commissioner has the general administration of and control of, operations of the Australian Federal Police (AFP). Other provisions give him specific disciplinary powers including the right of dismissal. He is not the Australian Federal Police, he is part of the Australian Federal Police. While he has all the rights, duties and powers of an employer in respect of AFP employees including the applicant, he is not the employer, the Commonwealth is the employer.

10. In the complaint by the applicant, the Australian Federal Police is named as the applicant's employer. Two addresses are given, Head Office in Canberra and Southern Operations Headquarters in Melbourne. In answer to the question "what is this organisation's relationship to you" the answer given is "I am a Federal agent with the AFP". I consider that it is clear beyond argument that the complaint is made against the organisation, the Australian Federal Police, and not against the individual, the Commissioner of the Australian Federal Police. Quite apart from common understanding of the distinction between the two, the applicant is a member of the Australian Federal Police and must understand the nature of the organisation to which she belongs. Her complaint shows that understanding. She makes complaint against the organisation and complaint against individuals. The individuals are all named and none of them is the Commissioner.

11. The submission on behalf of the Commonwealth is that there cannot be vicarious liability for a claim of victimisation which requires an examination of the relevant statutory provisions. But section 94 of the Sex Discrimination Act 1984 (SDA) provides that it is an offence for a person to commit an act of victimisation against another person. The victimisation is subjecting another person to detriment on the ground that that other person has, amongst other things made, or proposes to make, complaint to HREOC. The applicant claims threats of detriment by AFP members amounting to victimisation.

12. Section 46PO permits an application to be made alleging unlawful discrimination. "Unlawful discrimination" is defined in section 3 (1) as follows:

"unlawful discrimination" means any acts, omissions or practices that are unlawful under:

(a) Part 2 of the Disability Discrimination Act 1992; or

(b) Part II or IIA of the Racial Discrimination Act 1975; or

(c) Part II of the Sex Discrimination Act 1984;

(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or

(e) subsection 27(2) of the Racial Discrimination Act 1975; or

(f) section 94 of the Sex Discrimination Act 1984.

13. The right to make an application to the court and the court's power to make orders upon the court being satisfied that there has been "unlawful discrimination" are contained in section 46PO of HREOCA. They are not contained in SDA. This is significant, because the sections upon which the Commonwealth founds its argument are contained in SDA.

14. Section 106 of SDA provides:

(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. Section 94 is contained in part III of SDA, which is not referred to in section 106. Therefore, section 106 cannot apply. It was submitted that there is no other basis for finding the Commonwealth vicariously liable.

16. Section 108 SDA provides that for the purposes of the act all Commonwealth Employees are deemed to be employed by the Commonwealth. The combined operation of sections 56 and 64 of the Judiciary Act 1903 makes the Commonwealth vicariously liable for its employees in the normal way: Attorney General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 Dixon J. at 249; Groves v Commonwealth of Australia [1982] HCA 21; (1982) 150 CLR 113. If ordinary principles of vicarious liability apply to claims brought under section 46PO of HREOCA, then the Commonwealth can be vicariously liable for victimisation claims. The argument is that because section 106 SDA makes specific provision it must be that it is the only way there can be vicarious liability.

Except as expressly provided by this Act, nothing in this Act confers on a person any right of action in respect of the doing of an act that is unlawful by reason of a provision of Part II.

18. The function of this section is not clear. It may be that it now has no operation following the repeal of sections 49-84F of SDA in April 2000. Those sections provided for complaints and the making of claims. They have now been replaced by provisions in HREOCA pursuant to which the complaint was made by the applicant and the applications in this court have been brought. The repealed 47A SDA provided:

In this Part, a reference to an act that is unlawful under a provision of Part II includes a reference to an act that is an offence under section 94.

19. The repealed section was in Part III of SDA. That part provided for complaints and inquiries and the granting of remedies. The effect of the repealed section was that section 106 applied to claims made under the repealed provisions alleging victimisation under section 94.

20. In a summary dismissal application, it cannot be assumed that section 110 has no operation because repeal of other provisions has made it redundant. It refers only to part II. Therefore, it does not apply to the victimisation provision in section 94. It may be that it means that the vicarious liability provision in section 106 is expressly limited to claims under part II. If that is so, then any implied exclusion of common law rights must also be limited to part II.

21. The intention of the section 110 prior to the April 2000 amendments, was to restrict rights of action in respect of acts made unlawful by Part II to those expressly provided for in the act. A claim relying on common law vicarious liability could not be brought. That there is not a corresponding provision in the April 2000 amendments to HREOCA is an argument that Parliament did not intend to exclude those rights.

22. Vicarious liability has been applied in a claim under the Racial Discrimination Act 1975 at a time when the act contained no express statutory provision; Kordos v Plumrose (Aust.) (1989) EOC 92-256. It is not so clear that there cannot be the vicarious liability for victimisation claims that the remedy of summary dismissal should be exercised. On the contrary, there are substantial arguments that it does apply.

23. Consequently, the summary dismissal application by the Commissioner succeeds, that by the Commonwealth fails. Since I will not be able to hear argument on costs at the time this judgment is delivered, I will reserve the question of costs for later argument.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Phipps FM