Lee v HREOC [2000] FCA 11

FEDERAL COURT OF AUSTRALIA

Lee v HREOC [2000] FCA 11 PETER JOHN LEE v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR S 71 of 1999 FINN J 14 JANUARY 2000 CANBERRA (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 71 OF 1999

BETWEEN: PETER JOHN LEE

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

COMMONWEALTH GOVERNMENT

Second Respondent

JUDGE: FINN J

DATE OF ORDER: 14 JANUARY 2000

WHERE MADE: CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. the application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 71 OF 1999

BETWEEN: PETER JOHN LEE

Applicant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

COMMONWEALTH GOVERNMENT

Second Respondent

JUDGE: FINN J

DATE: 14 JANUARY 2000

PLACE: CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT 1 The applicant, Peter John Lee, is profoundly deaf. Though he can speak coherently communication with him can only be in writing or by electronic means. He suffers as well from other physical disabilities which affect his capacity to walk any significant distances. He is now in his fifties. The onset of his various disabilities has been relatively recent and his deafness in particular has occasioned both a marked deterioration in the quality of his life and a growing sense of frustration that he has not been able to secure the appropriate provision of services from care providers, government agencies, etc that would ameliorate his disadvantage. 2 Since at least 1985 he has been arrested on a number of occasions by State police in Queensland and South Australia mainly in relation to assaults; he has suffered what he considers to be discrimination on a range of grounds, but most notably sex and disability, in his dealings with a range of governmental agencies; he has sought the assistance of many to vindicate himself in his grievances - the Governor-General, politicians, lawyers and legal aid bodies, the Human Rights and Equal Opportunity Commission ("HREOC") and others - but has not secured from them the responses he wishes. 3 Mr Lee's present application can, in a sense, properly be described as his attempt (i) publicly to ventilate grievances that have accumulated over the past 15 or so years; and (ii) to secure the means to obtain appropriate assistance (legal and otherwise) to redress perceived past wrongs and to secure support for himself in his disabilities. To these ends both in the material placed before me and in submissions - he has been unrepresented - a large range of matters were canvassed. 4 It is clear that Mr Lee entertained expectations of what this Court would be able to do for him that far exceed the jurisdiction and powers that it has. Criminal law matters have loomed large in his complaints and it has been necessary to explain to him that this Court does not enjoy criminal jurisdiction under Commonwealth laws as such: see Judiciary Act 1903 (Cth) s 39B(1A)(c). 5 As a result of directions given by von Doussa J, Mr Lee's application to the Court was to be treated as an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of decisions of HREOC communicated to Mr Lee in a letter of 2 November 1999. This direction, if I may say, was necessary to be given if any of the various matters raised by Mr Lee could even conceivably be brought within this Court's jurisdiction. Again I have explained to Mr Lee the role of this Court in judicial review proceedings. Because of the expectations he has entertained of the Court it is fair to say that he has found the jurisdictional problems he confronts both bewildering and a cause of dissatisfaction in his prosecution of his quest. 6 Before turning to the ADJR Act issue, there are two matters to which I should refer. 1. The Disability Discrimination Act Claim 7 Mr Lee has in his submissions sought to invoke the Court's jurisdiction under s 130 of the Disability Discrimination Act 1992 (Cth) ("the DD Act"). In particular he asks the Court to make an order under s 105A of that Act after making an interim determination under s 102 of the Act. 8 The DD Act s 130 provides that: "The Federal Court has jurisdiction with respect to matters arising under Part 4." Part 4 deals with inquiries by the Disability Discrimination Commissioner and by HREOC and with civil proceedings. 9 Relevantly for present purposes s 102(1) of the DD Act provides: "s 102(1) The Commission, or, where the President thinks that it is expedient that the President alone should perform the functions of the Commission under this section, the President, may, on the application of the Commissioner under section 72 or on the application of a party to an inquiry at any time after the lodgment of a complaint into which that inquiry is held, make an interim determination of such a nature as would, if it were binding and conclusive on the parties, maintain: (a) the position between the parties to the complaint immediately before the lodging of the complaint; or (b) the rights of the parties to the complaint; pending completion of the matter the subject of the complaint." The matter I would wish to emphasise in this is that it is for the President or for HREOC - and not for this Court - to make the interim determination. 10 Section 105A of the DD Act provides insofar as presently relevant that: "s 105(1) The Commission, the complainant, or a person acting on behalf of the complainant, may commence proceedings in the Federal Court for an order to enforce a determination made under subsection 102(1) or 103(1) after the commencement of this Division, except where the respondent to the determination is a Commonwealth agency or the principal executive of a Commonwealth agency. (2) If the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Court may make such orders (including a declaration of right) as it thinks fit." It is to be noted in this that the precondition for this Court's jurisdiction under this section is a determination made by the President or by HREOC (under s 102) or by HREOC (under s 103). It is the prior existence of such a determination that enlivens the Court's jurisdiction. 11 In the present matter no interim determination has been made under s 102. In consequence this Court has no jurisdiction to act under s 105A. What Mr Lee is mistakenly seeking is that I usurp the President's or HREOC's function under s 102. 2. Sex Discrimination 12 A constant complaint Mr Lee makes of all with whom he has communication by letter is that they are guilty of sex discrimination. The conduct complained of in each instance is the use of the conventional mode of address "Dear Mr Lee" (emphasis added) in correspondence. It would appear that Mr Lee regards the conventional address as "unwelcome conduct of a sexual nature" in relation to him: Sex Discrimination Act 1984 (Cth) s 28A(1)(b). I would note that some number of Mr Lee's correspondents, and notably HREOC, desisted from that conventional mode after complaint by Mr Lee. 13 All I need say of Mr Lee's claim in this regard for present purposes is that the use of the conventional mode of address in correspondence cannot of itself properly be regarded as "conduct of a sexual nature" for the purposes of the Sex Discrimination Act. 3. The ADJR Act Claim 14 In its letter to Mr Lee of 2 November 1999 containing HREOC's decisions on some number of discrimination complaints made by Mr Lee, the delegate adverted to some difficulties experienced in dealing with the complaints. Most notably the delegate referred to either lack of jurisdiction on HREOC's part to deal with particular matters or insufficiency of information provided. I mention this at the outset because, no less so than of this Court in this proceeding, Mr Lee had expectations of HREOC that it was not lawfully able to satisfy. 15 I have explained to Mr Lee - again regrettably to his bewilderment - that judicial review under the ADJR Act does not allow me to make decisions on the merits of the factual position he presented to HREOC. I am confined by the grounds of review set out in s 5 of the Act. Mr Lee provided the Court with a large volume of material and complaint. For the most part it relates to matters that, for jurisdictional reasons, can have no bearing on the present application. 16 HREOC made a submitting appearance in this matter and counsel for HREOC attended the hearing to provide such assistance to the Court as was sought. Additionally, the Commission's files as they related to Mr Lee were produced to the Court and put in evidence. 17 It is not for me to comment on the sensitivity or otherwise shown by HREOC in its dealings with Mr Lee. My concern simply is with the bare question whether a s 5 ground of review has been made out. 18 The 2 November letter contains decisions on 14 matters. These related to alleged discrimination on varying bases by (i) the Norwood Community Legal Service; (ii) the Australian Communication Exchange; (iii) Australian Hearing Services; (iv) Sensory Options Coordination; (v) the South Australian Dental Service; (vi) the Australian Legal Services Commission; (vii) medical practitioners; (viii) the Royal South Australian Deaf Society; (ix) Domiciliary Care; (x) police; (xi) the Governor-General; (xii) the Commonwealth Bank of Australia; (xiii) the Australian Lions Club and Hearing Dogs Inc; and (xiv) introduction agencies, the Department of Social Security and the Australian Public Health system. 19 I need not comment on the range of persons and bodies whose conduct Mr Lee has impugned. HREOC declined to inquire further into any of his complaints. I give the following as representative of the various decisions made by HREOC and of their bases. (1) Norwood Community Legal Service "You allege that Norwood Community Legal Service discriminated against you by refusing to provide you with legal representation because it was only dealing with complaints related to education. I appreciate that you were unhappy with this decision but it appears the reason NCLC did not assist you was because of resource constraints and a decision to focus its resources in the area of education. You do not suggest and, there is no evidence to indicate, that the NCLC refused you services on the basis of your disability. Pursuant to section 71(2)(d) of the DDA I have decided not to inquire into this aspect of your complaint because I think it is lacking in substance." (2) South Australian Dental Service (SADS) "You state that on 17 July 1997 you went to the SADS for treatment. You allege that staff did not provide you reasonable accommodation in that they did not write down their responses to your questions. You state that staff were unhelpful and had a poor attitude. I note that you obtained the assistance of the Disability Complaints Service and approached SADS about your concerns. I understand that the Chief Executive Officer of SADS, Richard Hassam, met with you to discuss your concerns and conducted an investigation into the incident. SADS staff denied that you had advised them that you were deaf and required responses to be put in writing, although they state they did comply with your request. SADS staff also advise that your behaviour on the occasions you attended the hospital was abusive and threatening. SADS has advised that in response to your concerns it offered to provide an immediate appointment for medical treatment but you did not agree to that proposal. I appreciate that you were dissatisfied with the service you were provided by SADS but it is not clear from the information that you have provided that the difficulties you claim you encountered were because of your disability. I note that SADS did address your concerns although it did not agree to your demand that staff involved be dismissed. Pursuant to section 71(2)(d) of the DDA I have decided not to inquire further into this aspect of your complaint because I am of the view it is lacking in substance." (3) Domiciliary Care "You allege that you were refused services by Domiciliary Care because of your age. I note that you lodged a complaint about the same subject matter with the South Australian Equal Opportunity Commission. That complaint was referred to the tribunal for hearing and was dismissed by the Equal Opportunity Tribunal. This Commission can investigate complaints regarding discrimination on the basis of age in the area of employment. Your complaint relates to the provision of goods and services and is not covered the [sic] legislation administered by this Commission. I am therefore of the view that the act or practice does not constitute discrimination under the HREOCA and that the matter has been adequately dealt with by another statutory authority, the Equal Opportunity Tribunal." (4) Governor-General "You claim that the Governor General, Sir William Deane, discriminated against you on the basis of your disability by not providing you assistance to pursue your concerns and by not intervening on your behalf in these matters. I appreciate that you were disappointed with the Governor General's response but he appears to be under no obligation to provide you with the services that you sought from him. There is no requisite area in the DDA that would enable you to make a complaint against him or his office. Given this I must decline to inquire into this aspect of your complaint because I am satisfied it is not unlawful under the DDA." 20 Mirroring his attitude to the jurisdictional limitations of this Court, Mr Lee seems unable or unwilling to accept that HREOC is subject to jurisdictional limitations that prevent inquiry into matters that he considers involve discrimination against him. His challenge to the decision involving Domiciliary Care, for example, reflected this. More generally, though, he did not take me to material that would suggest that HREOC had committed any reviewable error. Indeed the majority of his concerns were unrelated to the HREOC decisions. 21 For my own part, despite the many and varied grievances Mr Lee considers he has against service providers and the legal system - and I do not doubt that those grievances are now deeply felt - I am unable to discern on the material before me any error on HREOC's part in relation to any of the matters complained of that would establish even an arguable ground of review under s 5 of the ADJR Act. Little purpose would be served in dealing with each of the 14 matters in any detail and I refrain from so doing. 22 Mr Lee has frustrations arising from various sources. His deafness (and the communication difficulties it occasions) is one obvious such source. Equally he considers he is not listened to and in consequence his well-justified demands are refused. He appears to regard decisions that are adverse to him as necessarily involving discrimination whatever their actual basis. But he does not appear to understand that his own conduct towards others may occasion an apprehension on their part that leads to their being less forthcoming than they might otherwise be. There is a number of instances in the material before me, for example, of threats being made leading to a reluctance or a refusal to deal with Mr Lee. I mention this because conduct to which he ascribes a discriminatory character may well properly be ascribed a quite different character when its causes are examined. 23 There is no doubt that Mr Lee's present circumstances are most unfortunate. It may well be that he could have and should have been given more sympathetic treatment to help compensate for his disability. But as I stated earlier I am not concerned with the merits of his complaints. 24 Largely for reasons of jurisdiction much of what he wished to raise in this Court it is not open for me to consider. I am, further, unable to make the order he seeks under the DD Act. And no basis exists for interfering with HREOC's decisions under the ADJR Act. 25 I will order that the application be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.