Chi v Technical Further Education Commission [2013] HCATrans 146 (7 June 2013)

Last Updated: 13 June 2013

[2013] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S11 of 2013

B e t w e e n -

JOHNY CHI

Applicant

and

TECHNICAL FURTHER EDUCATION COMMISSION

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 2.47 PM

Copyright in the High Court of Australia

MS R.S. FRANCOIS: If the Court pleases, I appear for the applicant. (instructed by Gilbert + Tobin Lawyers)

MR P. GINTERS: May it please the Court, I appear on behalf of the respondent. (instructed by Crown Solicitor’s Office (NSW))

FRENCH CJ: Thank you, Mr Ginters. Yes, Ms Francois.

MS FRANCOIS: Your Honours, this application raises two important questions which, in our submission, merit the grant of special leave concerning the construction and operation of the Anti-Discrimination Act (NSW). The Act is an important part of the legislative framework in New South Wales governing the way in which organisations and individuals interact and ensure an inclusive and merits based society. Both questions of construction concern the extent to which the actual circumstances and events can be taken into account when determining whether the operation of the Act has been invoked.

The first question goes to the operation and construction of section 7(1)(a) of the Act. It is whether the actual circumstances of an aggrieved person are irrelevant to determining the appropriate hypothetical person for the purpose of the comparison required by that section. The second question goes to the operation and construction of section 50(1)(c) of the Act. It is whether satisfaction of the criterion in paragraph (c) is to be ascertained by reference not only to the language used to make the relevant allegation, but also the context in which the allegation is made.

FRENCH CJ: Now, the two questions - I am looking at page 85 and the definition of the special leave questions 1 and 2 - they really link into each other, do they not, because the question which must be answered before a complaint of victimisation can be entertained is whether or not there has been a complaint of discrimination?

MS FRANCOIS: The language of section 50(1)(c) is whether or not an allegation of a contravention of the Act, whether or not - - -

FRENCH CJ: That is right. So the question is whether what is alleged that constituted the contravention in this case was section 7.

MS FRANCOIS: Yes. Well, section 7 as applied in section 17, which is the provision of education services.

FRENCH CJ: Yes. So one feeds into the other?

MS FRANCOIS: Ultimately, yes.

FRENCH CJ: Yes, okay.

MS FRANCOIS: Your Honours, we say the issues are important because discrimination cases under the Act are not determined by a judge in court, but by an administrative tribunal. The Court of Appeal decision, in our respectful submission, is wrong, and if left uncorrected will distort the administration of the Act by the Tribunal. As the Court appreciates, unlawful discrimination and victimisation is destructive in both personal and organisational terms, and it is - - -

FRENCH CJ: This is a process, I see, which started seven and a half years ago.

MS FRANCOIS: Yes, Mr Chi is very determined, your Honour.

FRENCH CJ: Okay.

MS FRANCOIS: It is important, we say, that the Tribunal have clear guidance as to the operation of the Act, and perhaps the applicant’s focus on this matter shows how destructive these types of feelings of exclusion can be on individuals. In relation to the first question, which concerns the relevant comparator, we respectfully say the Court of Appeal’s judgment is wrong for five reasons. The first is that the issue of the comparator did not arise for consideration because in Mr Chi’s written complaint, which notably only had to raise an allegation of a contravention of the Act for the purposes of section 50(1)(c), he used the word “discrimination”, and we say the use of that word encompassed the issue of the comparator; that is, to say that I am being discriminated against in the context in which he used it inherently says, I am being treated less favourably than others in the same circumstances.

FRENCH CJ: Now, the actual complaint appears at 108 and following, does it not?

MS FRANCOIS: That is correct, your Honour. So your Honour will see that on page 109, at about point 15, the opening of the subject of the complaint is:

I have suffered a long period of discrimination and harassment [from] my ecommerce teacher –

KIEFEL J: Well, that is the conclusion sought to be reached. The question is where are the allegations of fact which found that? That has to be found in the complaint.

MS FRANCOIS: Yes, but what we say is the way the complaint ought be read, given that the courts have a special responsibility in relation to human rights legislation, and given the wording of section 50(1)(c), which says:

whether or not the allegation so states –

is that when one reads this complaint and one looks at the opening words, “I have suffered a long period of discrimination and harassment”, what then follows are the specific examples that underlie that description of the acts. So he is saying that the acts that he then describes are forms of the discrimination and harassment. So coming back to the first reason why we say the Court of Appeal judgment was wrong, we say that the use of the word “discrimination” inherently encompassed that concept of comparison, I am being treated less favourably than other. Second, we say, even if that were not the case, the objective circumstances of Mr Chi demonstrated that he could read and write English and he - - -

FRENCH CJ: I am sorry, can we just go to - following up on Justice Kiefel’s question - the factual assertion of discriminatory conduct is the statement:

“you could not read English” in front of the whole class.

MS FRANCOIS: So that is, yes, about line 25. That is the one that was focused on by the Court of Appeal for this purpose.

FRENCH CJ: Yes, and that is it, is it not?

MS FRANCOIS: Yes, because they held that that was the only one that indirectly could raise the allegation of race because they did not accept the first proposition that race could be taken from the context of other emails.

FRENCH CJ: Yes, all right.

KIEFEL J: The Court of Appeal took the view that the teacher would have said the same thing to the comparator, to a person who was considered not to read English well.

MS FRANCOIS: Well, to a person who was illiterate, so they said the appropriate comparator was a person who in fact could not - - -

FRENCH CJ: Or to a person of any race who could not read English.

MS FRANCOIS: Yes. So that comes to the second point, which we say Mr Chi actually could read and write English, and that was objectively known to TAFE, he had completed two TAFE qualifications at the time of these incidents, and so we say any comparator had to be in those same circumstances, or circumstances that were not materially different, picking the language of section 7(1)(c), and we say to compare Mr Chi to a person who could not read English was to impermissibly ignore his actual circumstances.

Obviously, the Court of Appeal relied upon this Court’s decision in Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92, and our third line of reasoning is that the Court of Appeal misapplied Purvis. First, the plurality in Purvis made clear that the comparison was with the actual circumstances of the person claiming to have been treated less favourably. I am not sure if your Honours wish to be taken to that passage, but the reference is paragraph 223 on page 144. That is the last sentence on that page.

FRENCH CJ: Sorry, what was the paragraph number?

MS FRANCOIS: Paragraph 223.

FRENCH CJ: I am sorry. Yes, thank you. Yes.

MS FRANCOIS: Thank you. So we say it is clear that the circumstances being compared are the actual circumstances of the person who claims discrimination, not something that is entirely alien to their circumstances. Secondly, we say the – and this is more a nuance – the plurality and the dissentients also both indicated that the question of comparison for the purposes of disability discrimination was not quite the same as those for race and sex, and that is because, race and sex, there is an assumption in both pieces of legislation that there is an inherent equality with others of those characteristics, but in relation to disability it is a different theory so it comes from a basis of actual inequality and a need to make accommodations to bring things to equality.

So there was a suggestion that it is not a perfect analogy when dealing with those comparators. I do not propose to take your Honours to that, but if it is of relevance the plurality deal with that at paragraph 198, and the dissentients at paragraph 129. So we say Purvis was misapplied. Then dealing with our fourth reason; insofar as the respondent relies upon assumptions made by the Court of Appeal, it was not open for the Court of Appeal to assume that the discriminator genuinely believed that Mr Chi could not read English. The discriminator did not give evidence in the Tribunal and it was not an overwhelming inference given Mr Chi’s history with TAFE. Then the final point in relation to this question is that even if the discriminator had genuinely believed that Mr Chi - - -

FRENCH CJ: This is the alleged discriminator, known in the Act as the perpetrator, I think.

MS FRANCOIS: Thank you. Even if the alleged discriminator had genuinely believed that Mr Chi could not read English, the misguided assumptions of alleged discriminators are not relevant for the purposes of section 7(1)(a) of the Act. For example, a person might genuinely believe that all Aboriginals who wish to have a drink have a problem with alcohol and would treat all persons with alcohol problems the same way. That does not mean that an Aboriginal person without such a problem can be compared to alcoholics generally for determining whether or not they were discriminated against on the ground of their race, and if one goes back to the analogy from whence this type of legislation came, which is the civil rights movement in the United States, some places in the United States assumed that black men were Neanderthals of lesser intelligence.

That assumption could not excuse the discrimination. So we say that, with respect, the Court of Appeal erred in comparing Mr Chi to a person who was illiterate when he was someone who manifestly could, and did, read and write English. Unless I can be of further assistance in relation to the first special leave question that we say arises I will turn to the second.

FRENCH CJ: Yes, thank you.

MS FRANCOIS: In relation to the second question, the language of the applicant’s written complaint gave specific examples of what was said to be discrimination and harassment, but did not state the acts had been done on the grounds of race. Nonetheless, the contemporaneous emails that had been written by the respondents’ employees show that the respondents understood the applicant’s complaints against his teacher were on the ground of race. We respectfully submit that the Court of Appeal and the Appeal Panel were wrong for the following reasons. First, the Court of Appeal was clearly incorrect when it held that the Appeal Panel proceeded on the basis that all of the relevant allegations were contained in Mr Chi’s written complaint. That is clearly not so, and I will take the Court to that very shortly.

Second, neither the Appeal Panel or the Tribunal held that they were bound by Mr Chi’s points of claim, and that approach by both the Appeal Panel and the Tribunal must be correct given section 73(2) and (3) of the ADT Act, which is that usual enabling provision one sees in administrative tribunals which require the Tribunal to act with as little formality as the circumstances permitted. So if I might take your Honours to application book page 46, paragraph 22, and this is the passage in which the Appeal Panel dealt with this issue of context, and one can see from the opening sentence that the Appeal Panel records the arguments made on behalf of Mr Chi, that the findings that the complaint had not raised an allegation of race:

“impermissibly ignore the prior context in which the complaint was made” –

They then say that he had to “allege a breach of the Act”; that is uncontroversial. My friend then pointed out that that was somehow to be construed very specifically under section 50(1)(c). They say -

his formal complaint in our opinion stops well short of alleging a contravention of the Act -

One assumes that because it did not use the word “race”, and then they say -

Nor in our opinion does the context revealed by Ms Siljanovic’s e-mails overcome the problem -

Then they describe the emails, which say – the accusations of racism and racial discrimination, but they then consider those emails only in the context of the emails, they do not then relate the emails back to construing the written complaint. They say -

None of these references in our opinion is specific enough to constitute an allegation of breach of the Act or enable such an inference to be drawn.

FRENCH CJ: This is all feeding into 50(1)(c), is it not?

MS FRANCOIS: Yes, that is correct. So this is very squarely the section 50(1)(c) point of whether or not there has been an allegation of a contravention of the Act, whether or not the allegation so states. So we say if you take - - -

KIEFEL J: I suppose it depends, does it, on whether or not your state of mind is sufficient or whether it is necessary to comply with the requirements of the Act, that is, to state an allegation?

MS FRANCOIS: Yes, but perhaps if I give his example. Imagine that there is some conduct that occurs and a person then says, you are discriminating against me, and then something further occurs which they say is a detriment, the allegation is you are discriminating against me, meaning can only be given to that allegation by looking at the context of the circumstances which provoked it.

So we say this is a piece of legislation where the courts have a special responsibility to construe it to give effect to the objects of the Act, and in this case the objects of the Act are clearly to help people who are inarticulate and have difficulty with their position, and so to construe it in a way that one would need to be a lawyer to get in all the relevant allegations would be contrary to the purposes of the Act, and we say it is open, on the language used by the legislature in section 50(1)(c), in particular the words “whether or not the allegation so states” to be more liberal.

FRENCH CJ: Well, that kind of consideration might be relevant to the sufficiency of an allegation for the purposes of a determination of whether there has been discrimination, in other words, initiating a process in the equal opportunity division of the ADT. But do different considerations arise where it is used to inform an allegation of victimisation against somebody else?

MS FRANCOIS: Well, your Honour, certainly to make a complaint to the Anti-Discrimination Board, all one really needs to do is say, I wish to make a complaint, and sufficiently identify the respondent, and I think the language of the Act makes that clear.

FRENCH CJ: Yes, and you have got your equity and good conscience provision that you mentioned. But the criterion for victimisation, which is unlawful conduct by somebody else, or at least the necessary condition, is an allegation that the discriminator has committed an act:

whether or not the allegation so states, [which] would amount to a contravention of this Act –

So you have got to have the factual elements, at least, of discrimination alleged in order to engage the victimisation provision.

MS FRANCOIS: Yes, and what was held by the primary Tribunal was that because the written complaint did not use the word “race” it fell short of having alleged a contravention of the Act because the prescribed ground was not nominated. So our argument is that if the Act is to be construed to allow the context of the allegation to be taken into account - - -

FRENCH CJ: For the purposes of victimisation.

MS FRANCOIS: - - - for the purposes of victimisation, then the emails show that it was always understood that Mr Chi was alleging his teacher was racist and was discriminating against him on the grounds of his race. Unless I can be of further assistance, those are the submissions for the applicant.

FRENCH CJ: Thank you very much. We will not need to trouble you, Mr Ginters.

I will ask Justice Kiefel to give the disposition of the Court.

KIEFEL J: In this matter, the Court of Appeal of the Supreme Court of New South Wales dismissed an appeal from the Appeal Panel of the Administrative Decisions Tribunal of New South Wales under the Anti-Discrimination Act 1977 (NSW). The Panel determined that the complaint made by the applicant contained no allegation of racial discrimination for the purposes of a complaint of victimisation under s 50(1)(c) of the Act. One statement by the applicant’s teacher, which might conceivably have amounted to such an allegation, was said in class. It was that the applicant could not read English. The Court of Appeal, using a comparator of a person with the same attributes as the applicant save for his race, considered that the teacher would have spoken in the same terms to a person she believed could not read English.

The application for special leave does not raise any question of principle and turns substantially on what facts were communicated by the applicant in his complaint. The email correspondence does not overcome the absence of an allegation of racial discrimination. The administration of justice does not require the grant of special leave. Special leave is refused.

FRENCH CJ: I agree.

MR GINTERS: Might I have an order as to costs of today too, please.

FRENCH CJ: Can you resist that, Ms Francois?

MS FRANCOIS: No, your Honour.

FRENCH CJ: Special leave is refused with costs.

The Court will now adjourn until 10.15 on 18 June in Canberra.

AT 3.08 PM THE MATTER WAS CONCLUDED