Paramasivam v Wheeler & Ors S49/2001 [2002] HCATrans 92 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

CHRIS WHEELER, IRENE MOSS, LAURIE GLANFIELD, YVONNE GRANT, HARRY HERBER, SUZANNE JAMIESON, RUTH McCOLL, PETER RYAN

Respondents

Office of the Registry

Sydney No S50 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

DAVID KEMP

Respondent

Office of the Registry

Sydney No S51 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

JOHN HOWARD

Respondent

Office of the Registry

Sydney No S52 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

TOM KARMEL

Respondent

Office of the Registry

Sydney No S53 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

BOB SENDT

Respondent

Office of the Registry

Sydney No S54 of 2001

B e t w e e n -

GAJA LAKSHMI PARAMASIVAM

Applicant

and

JOHN AQUILINA

Respondent

Applications for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 12.48 PM

Copyright in the High Court of Australia

__________________

MRS G.L. PARAMASIVAM appeared in person.

MR J.E. GRIFFITHS, SC: If the Court pleases, I appear for what I might describe collectively as the Commonwealth respondents in matters S50, S51 and S52. (instructed by Clayton Utz)

MS K.L. EASTMAN: May it please the Court, I appear for what we describe as the State respondents, which is in matters 49, 53 and 54. (instructed by the Crown Solicitor for New South Wales)

GAUDRON J: Now, can these matters be dealt with together?

MRS PARAMASIVAM: Yes, your Honour.

GAUDRON J: Now, Mrs Paramasivam, you have filed written submissions.

MRS PARAMASIVAM: I have, your Honour.

GAUDRON J: And you have indicated in those submissions that you rely on them and you do not wish to make oral submissions.

MRS PARAMASIVAM: That was made on the understanding that it will be a lengthy legal submission but I do want to make a short statement, your Honour.

GAUDRON J: Very well. Yes.

MRS PARAMASIVAM: May I read out what I have written, your Honour?

GAUDRON J: Yes, please.

MRS PARAMASIVAM: The judgments delivered in the Federal Courts did not show their connection to the law. It is human nature to keep following past practices until one is challenged. Judges also being human are no exceptions. One who is therefore consciously overriding past practices would show the flow of reasoning from the root laws and not take the easy way of saying that I had no gross proof to

substantiate that the discriminatory actions were based on my race. By requiring gross proof, the judges have confirmed that they did not inquire deeper. All anti-discrimination laws require deeper inquiry for the judges to first know the truth.

If decisions are being made on the basis of cultural practices, the judges ought to have viewed the matters in the shoes of both parties. The reasons for judgment clearly indicate that the judges were closer to those who were more like themselves, in position as well as race. The judges failed to educate me on the "legal basis" for the acts of discrimination. This is because there was no lawful basis but just customary practices.

The anti-discrimination laws exist towards us consciously overriding such natural following. By failing to provide the lawful basis, the judges below continued with the unlawful discrimination. To require me to provide gross proof of a culture that has been practised for over 200 years is like asking a child to instantaneously provide gross proof of her parentage. If the legal system is used to get me out of sight, as has been tried by the Federal Courts, it is like trying to blind this nation's active conscience by use of muscle power. I plead that due process be followed towards a natural result. Thank you very much.

GAUDRON J: Yes, thank you, Mrs Paramasivam. Yes, we need not trouble you, Mr Griffiths, or Ms Eastman.

In each of these matters, the applicant, who relies in the main on her written submissions seeks special leave to appeal from orders of the Full Federal Court refusing leave to appeal from orders of Justice Moore. Justice Moore had dismissed the applications under section 46PO of the Human Rights and Equal Opportunity Commission Act. Those applications alleged unlawful racial discrimination. The applications were dismissed on the basis that the applications did not reveal any discriminatory conduct.

The conduct, which according to the applicant constituted discriminatory behaviour, was, in each case the failure of the respondent in question to provide her with what she described as "the objective basis" for refusing to pursue complaints which she had made to them.

Justice Moore was correct in concluding that the failure by a government officer or an official body to provide reasons for a refusal to pursue a complaint does not without more constitute discriminatory

conduct. That being so, neither the decision of Justice Moore nor that of the Full Federal Court displays any error that might appropriately attract the grant of special leave. Accordingly, special leave is refused and, in accordance with the ordinary practice, it is to be refused with costs.

AT 12.53 PM THE MATTERS WERE CONCLUDED