Beacroft, Laura --- "Kevin Kopper v the Commissioner for Community Relations (natural justice - Racial Discrimination Act 1975 - conciliation)" [1986] AboriginalLawB 59; (1986) 1(23) Aboriginal Law Bulletin 6

• Kevin Kopper V The Commissioner For Community Relations
• Natural Justice – Racial Discrimination Act 1975-Conciliation

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Kevin Kopper v the Commissioner for Community Relations

Natural justice – Racial Discrimination Act 1975 - conciliation

Kevin Kopper v the Commissioner for Community Relations

Federal Court of Australia, Spender J.

2 June 1986

Casenote by Laura Beacroft

Mr Kopper is the hotel proprietor of the Playpen International Nightclub, Cairns. He and his staff were said by 6 Aboriginals and Islanders to have refused them access to the premises by reason of their race, colour or ethnic origin.

This case arose from a claim that a conciliator appointed by the Commissioner for Community Relations (under the Racial Discrimination Act 1975) was biased. At the conciliation Mr Kopper claimed the conciliator had said that her own daughter had been excluded from Mr Kopper's premises.

The conciliation failed and so the Commissioner issued a certificate verifying that conciliation had been attempted and failed (s 22 RDA). Only after the issue of this certificate can civil proceedings be initiated. Mr Kopper sought a declaration that the certificate was invalid due to a want of natural justice (which is a ground of review laid down in the Administrative Decisions Judicial Review Act 1977).

The Supreme Court of Queensland was initially asked to hear the matter. However due to privacy provisions in the RDA, that court said the Federal Court alone had the power to determine the matter.

The Commissioner's main argument was that a conciliator appointed under the RDA was outside the rules of natural justice, since the conciliator's decision does not affect the 'rights, interests or legitimate expectations' of any persons. It was argued that the legal question of whether unlawful discrimination occurred remains to be determined in court proceedings (s 24 RDA).

Justice Spender disagreed. He said that it is an open question whether natural justice or procedural fairness is required even where rights, interests, or legitimate expectations are not affected. He said that Testro Bros. P/L v Tait [1963] HCA 29; (1963) 109 CLR 353, in the light of later authorities, did not settle this question as had been argued.

Firstly, Justice Spender said that Testro should be distinguished. That case concerned an investigators body, which might more efficiently operate if procedural fairness were left to the stage when the investigator's report is acted upon. However, the 'conciliation proceedings ... is concerned with allowing an individual to know the nature of the complaint ... and to have an opportunity to place its version of events before an unbiased conciliator. No justification of administrative conveniences supplants the duty to act fairly.'

Secondly, Justice Spender said later authorities tend to emphasise the importance of a matter raised by the minority in Testro, namely the need for natural justice where the decision in question is a basis for further legal action. (In re Pergamon Press (1971) CL 388; Brettingham-Moore v St. Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509; Mahon v Air New Zealand (1983) 50 ALR 193). Justice Spender noted that Chief Justice Gibbs comments in National Companies & Securities Commission v News Corp. [1984] HCA 29; (1984) 52 ALR 417, that Mahon was not applicable to a body which makes no findings of facts (i.e. conciliators). However Justice Spender said this comment was not central to that case.

Justice Spender concluded that the conciliator's decision was a decision that exposed the applicant to a hazard, namely, civil liability. He came to this conclusion by drawing an analogy with the Race Relations Board decision in Selvarajan v Race Relations Board (1976) 1 AII ER 12, a decision which was also a pre-condition to the institution of civil proceedings.

On the basis of this finding about the legal consequences of the conciliator's decision, and the importance attached to this matter by the previously mentioned authorities, Justice Spender concluded that natural justice should be accorded all persons involved in conciliation under the RDA. He also found that the conciliator in Mr Kopper's case had not done so.