FEDERAL COURT OF AUSTRALIA McGlade v Human Rights and Equal Opportunity Commission [2000] FCA 1477 HUMAN RIGHTS - RACIAL DISCRIMINATION – complaint concerning statements said to be racially offensive referred by Race Discrimination Commissioner to Human Rights and Equal Opportunity Commission – Commission, having found complaint not to be frivolous, vexatious, lacking in substance or relating to an act not unlawful, summarily dismissed the complaint as "misconceived" – Commission found complaint was not misconceived when made, but became so by reason of subsequent circumstances – subsequent circumstances comprised principally the making of further similar statements in the Senate followed immediately by an apology in the Senate and matters arising out of such apology – Commission considered that it would not be "appropriate" to grant relief – at stage of summary dismissal, applicant's evidence had not been taken – whether Commission applied the correct test for summary dismissal – whether Commission took into account irrelevant considerations. Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Racial Discrimination Act 1975 (Cth), ss 18C, 24E(1)(a), 25X, 25Z(1)(b) Human Rights Legislation Amendment Act (No. 1) 1999 (Cth), s 3 and Schedule Equal Opportunity Act 1984 (Vic), s 44C Assal v Department of Health, Housing and Community Services (1992) ECO 92-409 referred to Nagasinghe v Worthington (1994) 53 FCR 175 referred to Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 referred to State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 applied Burton v Shire of Bairnsdale (1908) 7 CLR 76 applied Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied McGLADE v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and SENATOR ROSS LIGHTFOOT W 23 of 1999 CARR J 18 OCTOBER 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 23 OF 1999 BETWEEN: HANNAH McGLADE Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent SENATOR ROSS LIGHTFOOT Second Respondent JUDGE: CARR J DATE OF ORDER: 18 OCTOBER 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Human Rights and Equal Opportunity Commission, made on 21 January 1999, to dismiss the applicant's complaint be set aside. 3. The applicant's complaint be remitted to the Commission for decision in accordance with the law. 4. The second respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 23 OF 1999 BETWEEN: HANNAH McGLADE Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent SENATOR ROSS LIGHTFOOT Second Respondent JUDGE: CARR J DATE: 18 OCTOBER 2000 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 This is an application, under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), for an order of review in respect of a decision of the Human Rights and Equal Opportunity Commission ("the Commission"), made on 21 January 1999, to dismiss a complaint made to it by the applicant against the second respondent pursuant to the provisions of the Racial Discrimination Act 1975 (Cth) ("the Act"). The Commission has, quite properly in my view, filed a submitting appearance. The second respondent opposes the application. factual and procedural background 2 The Commission did not conduct a substantive hearing before it dismissed the applicant's complaint. Accordingly no facts have been found. The following summary of "the facts" is taken from the assumptions made by the Commission for the purposes of its decision. 3 The applicant is an Aboriginal person. The second respondent was at all material times until 26 May 1997 a member of the Legislative Council of Western Australia. On 26 May 1997 he was sworn in as a senator of the Commonwealth Parliament. 4 On about 9 May 1997 the second respondent granted an interview to a Mr Damon Kitney, a journalist working on behalf of the "Australian Financial Review" ("the Financial Review") which is published daily. The interview was conducted in the second respondent's (State) parliamentary office in Perth. During the course of that interview the second respondent made statements which were reported in the Financial Review on 9 May 1997 as follows: "Aboriginal people in their native state are the most primitive people on earth. If you want to pick up some aspects of Aboriginal culture which are valid in the 21st Century, that aren't abhorrent, that don't have some of the terrible sexual and killing practices in them, I would be happy to listen to those." 5 On 16 May 1997, the applicant lodged a complaint with the Commission against the second respondent. The complaint was that his statements, made on about 9 May 1997, as reported in "The West Australian" on 13 May 1997 contravened s 18C of the Act. 6 In an outline of her complaint, enclosed in a letter dated 16 December 1998 from the applicant to the Commission, the applicant stated: "Senator Lightfoot then proceeded to make these same comments to the Commonwealth Parliament within the fortnight. These statements were reported on widely by the media (including the front page of The West 29/5/97)." 7 The applicant was, in the above paragraph, referring to a statement made by the second respondent in the Senate on 28 May 1997. The precise terms of that statement are not in evidence. 8 Later on 28 May 1997 the second respondent delivered an apology in the Senate in the following terms: "I refer to a statement I made earlier today. I wish to unreservedly apologise to any Australians who may have been given offence by the remarks I made. I regard all Australians, irrespective of their race or ethnic background, as being completely equal and entitled to equality of treatment without discrimination of any kind. Any views to the contrary which I may have expressed in the past I no longer hold. I respect the Aboriginal people of Australia and strongly support practical measures to address their disadvantage. I wish to make it clear that I did not intentionally wish to give offence to anyone." 9 Sections 18C and 18D of the Act are in the following terms: "Offensive behaviour because of race, colour or national or ethnic origin 18C. (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: "public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. Exemptions 18D. Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment." 10 The Race Discrimination Commissioner endeavoured, without success, to resolve the complaint by conciliation. On 24 February 1998, acting pursuant to s 24E(1)(a) of the Act, he referred the complaint to the Commission for inquiry and determination. On 4 December 1998 the Commission listed the matter for hearing on 21 January 1999 and directed the applicant to provide in writing to it and to the second respondent further particulars of the alleged comments which constituted the subject of its inquiry. Those particulars were to include the date on which and the place where the comments were allegedly made, the person to whom they were allegedly made and the content of the comments. The applicant was directed to provide those particulars on or before 18 December 1998. 11 In response to that direction the applicant forwarded her letter dated 16 December 1998 and its enclosure (referred to above). On 15 January 1999 the Commission wrote to the applicant advising that the Commissioner to whom the matter had been assigned proposed to consider, of his own motion, at the commencement of the hearing on 21 January 1999 whether the complaint should be dismissed pursuant to s 25X of the Act. In that letter the Commission set out the terms of that section which are as follows: "Where, at any stage of an inquiry, the Commission is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II or Part IIA, it may dismiss the complaint." 12 The Commission explained, in the letter, that it would determine as a preliminary question at the commencement of the hearing whether the complaint should be dismissed. It set out various matters which it would, amongst other things, consider. The applicant was informed that if the complaint were not dismissed pursuant to s 25X, the Commission would then consider other preliminary matters relating to evidence, including admissibility of certain material and the relevance of the evidence of some witnesses whom the applicant proposed to call before the Commission. On 18 January 1999 the applicant wrote to the Commission. In that letter the applicant dealt with various aspects of her complaint, but it is not necessary to set them out in these reasons. On 19 January 1999 the Commission responded to the applicant's letter. Relevantly, the Commission, in its letter, made it clear that the hearing scheduled for 21 January 1999 would be a directions hearing to hear argument as to whether the matter should be dismissed pursuant to s 25X of the Act and that, if the matter were not so dismissed, the Commission would not proceed to hear evidence on that date. the proceedings before the Commission 13 The matter came before the Commission on 21 January 1999. 14 The applicant appeared for herself. The second respondent did not appear. After some 40 minutes of debate between the Commission and the applicant, the Commission indicated that it would later provide formal reasons and then said this: "… on the ground that I think it could not lead to appropriate rectification beyond what is already effected by the action taken in the national parliament, which to my mind is a repudiation of the views that are the subject of this complaint, even if they're not directed to this complaint, I will dismiss the matter under section 25X of the Racial Discrimination Act." 15 On 11 February 1999 the Commission published its reasons for its decision to dismiss the applicant's complaint. After setting out the factual and procedural background and referring to some aspects of parliamentary privilege, the Commission noted that it had to consider the applicant's case "at its highest" i.e. that the second respondent had made the statements to Mr Kitney on about 9 May 1997 as set out at para 4 above. The Commission noted that the second respondent, although making a claim of parliamentary privilege, had not identified any basis upon which the statements made to Mr Kitney were privileged. It then turned to the provisions of s 25X of the Act and held that the complaint should not be dismissed on the basis that it was lacking in substance or that the act complained of was not unlawful. The Commission next considered whether the complaint should be dismissed on the ground that it was "misconceived" within the meaning of that expression in s 25X. The Commission reasoned as follows: "To 'misconceive' something is to 'conceive wrongly' (Macquarie Dictionary, 3rd Ed) or have 'a wrong idea of' or 'misunderstand' it (Concise Oxford Dictionary). In the present case, misconception for the purposes of s 25X of the RDA is capable, in my view, of embracing a situation where the complaint was instituted with a view to securing certain relief, which the complainant still seeks to obtain, but where, having regard to supervening events, the Inquiry Commissioner forms the view that it would be inappropriate to make declarations under the Act by way of remedy. In deciding whether the complaint is misconceived I can, as I understand it, also have regard to other discretionary considerations including the overall appropriateness of pursuing an action under the RDA given the fact that the statements to which objection is taken were essentially a matter of personal opinion rather than objective fact and were made by a member of Parliament who, in accordance with the principles of representative democracy, is answerable to the electors through the Parliament of which he is, at the relevant time, a member." 16 The Commission then referred to the second respondent's apology in the Senate on 28 May 1997, which it described as "[a] crucial fact". The Commission noted that, by virtue of s 16(3) of the Parliamentary Privileges Act 1987 (Cth), it was unable to question the second respondent's intentions or motive, or to canvass his apology in any way, including drawing any inferences in relation to it. The Commission then said this: "The Commission must consider, if the matter were to proceed to a hearing, whether it would be able or appropriate for it to grant any meaningful relief, assuming that on the evidence it could conclude that the statements made by the respondent in the course of the discussion with Mr Kitney satisfied the conditions of s 18C of the RDA and that his action or statements as such were not excused under s 18D. In deciding whether, at this time, to continue with the complaint would be misconceived, I take into account the following. Though made in a Commonwealth House of Parliament, the apology rendered by the respondent in the Senate constitutes on its face a repudiation of views of the kind implicit in the statements which form the grounds of this complaint. Strictly speaking, there is a clear and separate identity to the statements as they may have been made to Mr Kitney and the statements made in the Senate which were the occasion for the apology in that House. The former statements do not of themselves attract parliamentary privilege, either of the Senate as an institution, or of the respondent as a member, nor has a basis been shown that they are subject to State parliamentary privilege. Nevertheless, the consequence as a matter of fact is that the respondent as a public figure has, on a reasonable reading of his apology, publicly repudiated views of the kind that have given rise to offence in this case. It is relevant in my opinion that the statements to which offence has been taken pre-dated the Parliamentary apology and have not been publicly reiterated since. The Commission is unaware of any public statement made subsequently which constitutes a repetition of the views which were the subject of the apology. Furthermore, the respondent continues to be accountable for his political view to the Commonwealth Parliament." 17 The Commission then referred to the applicant's contentions. They were, in summary, that even if the Commission were to take the view that it would be inappropriate to direct the second respondent to apologise for the statements and to pay damages in respect of them, a mere declaration that he had engaged in racial vilification contrary to s 18C of the Act "would be significant". It would provide, so the applicant had submitted to the Commission, a measure of relief not only to herself, but to other Aboriginal persons who had long been burdened with the hurt, intimidation, lack of esteem and disrespect for dignity that was the product of racial vilification. 18 The Commission then set out its findings in relation to the application of s 25X. They included a finding of satisfaction that in this matter the attempt to continue to engage the processes available under the Act was misconceived. The Commission reasoned as follows: "Given that the respondent's remarks were made in a political context and were the subject of a later apology in the Commonwealth Parliament, representing a rejection of opinions of the kind that had given offence in this case, and balancing that in the situation where such matters are accessible to public debate and repudiation by right-thinking persons, it seems to me inappropriate and an exercise in futility to proceed to a determination of this complaint … In the circumstances of the present case, as offensive and abhorrent as the views expressed by the respondent were to the complainant and other persons such as the witnesses she proposed to call and, indeed, arguable to all right-thinking people, it is misconceived, in my view, to pursue the matter by way of further inquiry into the complaint. In so dismissing it, I should make it perfectly clear that I do not regard the matter as either trivial or vexatious, nor that it was necessarily misconceived at the time of its inception. It is based on the view I have formed that the matter has been appropriately dealt with under the processes of Parliament and that it should be laid to rest." the application to this court 19 In her application, the applicant relied upon two grounds. Ground 1 was that the decision involved an error of law. Ground 2 was that the making of the decision was an improper exercise of the power conferred on the Commission by the Act. 20 The error of law identified was expressed as follows: ". On a proper construction of s 25X of the Racial Discrimination Act 1975, a complaint which is not misconceived at the time when it is made cannot be rendered "misconceived" by the subsequent events, at least not by such events as were relied upon by the Commission; . The circumstances that it might be inappropriate to make declarations under the Racial Discrimination Act 1975 by way of remedy does not render a complaint "misconceived" as that term is used in s 25 of the Racial Discrimination Act 1975." 21 The alleged improper exercise of power was particularised as being that the Commission took into account an irrelevant consideration, namely that having regard to events which had occurred since the complaint was made, it would be inappropriate to make declarations under the Act by way of remedy. ground 1 – error of law the applicant's contentions 22 The applicant submitted that the power of summary dismissal conferred by s 25X of the Act should only be exercised in a clear case i.e. relevantly to this matter, where it was clear on its face that the complaint was misconceived. The complaint exhibited substance and involved a determination of a complex and clearly arguable question of law. Section 18C of the Act was, so it was put, the domestic implementation of Article 4(a) of the International Convention on the Elimination of Racial Discrimination which required a State party to "… declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred". The purpose of implementing the Convention was not, so the applicant contended, served if s 18C was applied conditionally upon whether or not a person may apologise in Parliament or elsewhere. The exemptions set out in s 18D were exhaustive and did not extend to the making of a retraction or apology in Parliament or otherwise. It was to be inferred that Parliament did not intend that a retraction or apology would render conduct exempt from the operation of s 18C. 23 The applicant submitted that a complaint, found not to have been misconceived at the time when it was made, could not be rendered "misconceived" by subsequent events. In particular her complaint in relation to s 18C could not be said to be misconceived on the basis that: · the second respondent subsequently apologised in Parliament; · the apology was for a statement which was not the subject of the complaint; · there was an opportunity for public debate concerning the subsequent similar views expressed by the second respondent and the statement the subject of the complaint was not retracted by the second respondent in the proceedings before the Commission. 24 Alternatively, the Commission had erred in law in concluding that the complaint was misconceived and that Parliament had appropriately dealt with the issues. This was because the respondent had not apologised for the statement which was the subject of the complaint and that statement was not retracted by the second respondent in the proceedings before the Commission. the second respondent's contentions 25 The second respondent submitted that there was no authority for the proposition that the Commission could consider only facts in existence at the time when the complaint was made, when inquiring into a complaint or considering whether to dismiss it. Commonsense suggested that the Commission must be able to have regard to all relevant facts and circumstances. This was particularly so given the "pastorally sensitive and conciliatory purpose of the Act": Assal v Department of Health, Housing and Community Services (1992) ECO 92-409 at 78,900. 26 The primary relief sought by the applicant in the original complaint was an apology. The complaint did not involve a complex question of law. my reasoning 27 First I shall make some observations about s 25X. The section was repealed by s 3 (when read with Item 76 of the Schedule) of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) but, as a matter of convenience, I shall refer to it in the present tense as if it had not been repealed. Furthermore, in my opinion, s 25X continues to apply to this particular complaint – see paragraph 55 below. 28 The exercise of the power conferred by s 25X is not confined to summary dismissal at an interlocutory stage, whether on the basis solely of the matter disclosed by the complaint, or on the additional basis of some evidentiary material put before the Commission by the parties interested in the inquiry. The power may be exercised "at any stage of an inquiry". In that circumstance, I think that it is important to establish precisely what stage of the inquiry had been reached, and what the Commission was doing, on 21 January 1999. 29 The Commission stated that the hearing on that date was a directions hearing, in the context of which it proposed to deal with its own motion to dismiss the complaint under s 25X (see its letter of 15 January 1999). It is apparent from the transcript of those proceedings, and the Commission's subsequent formal reasons for its decision, that it had regard to the documents lodged with the Commission by the applicant and by the second respondent, most of which was in the form of correspondence. In administrative law terms, it can thus be seen to have embarked on the inquiry to the extent of having regard to some of the evidence. But it is clear that the applicant wanted to adduce further evidence. In those circumstances I think that the Commission can be seen to be exercising a power of summary dismissal. On the facts, this matter can be distinguished from cases like Assal, Nagasinghe v Worthington (1994) 53 FCR 175 and Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455where the complainants had had their day before the Commission. The proceedings arising out of this complaint were clearly at a preliminary stage when the complaint was dismissed. What degree of satisfaction was required of the Commission before it could lawfully exercise its power of summary dismissal? In answering that question I have derived considerable guidance from the decision of the Court of Appeal of Victoria in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. That case involved a consideration of s 44C of the Equal Opportunity Act 1984 (Vic). Section 44C provided that a respondent to a complaint could apply in writing to the Equal Opportunity Board to have a complaint struck out on the grounds that: "… it is frivolous, vexatious, misconceived or lacking in substance at any time between the lodging of the complaint and the commencement of the hearing of the complaint by the Board, other than at a time when the matter is in the process of being conciliated." 30 Each of the judges in Rabel referred to other comparable legislation, including s 25X of the Act, which conferred power on functionaries and tribunals, both state and federal to decline to investigate a complaint or claim because it was "frivolous, vexatious, misconceived or lacking in substance". Each of those judges also referred to the differences between s 25X and s 44C of the Victorian Act (see at 104, 108 and 121). The principal difference was that s 44C was concerned with proceedings at a preliminary stage. The factual circumstance that the present proceedings were also at a preliminary stage gives rise to the assistance which I have derived from the decision in Rabel, in particular the observations of Ormiston JA at 110. There his Honour said this: "In my opinion, there is very good reason indeed for courts and tribunals to act with the greatest of caution before dismissing a claim as groundless, whatever adjective or phrase is used to give (or reiterate) that power." 31 His Honour then referred to a passage from the judgment of O'Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, which Dixon J repeated with approval in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 which was in these terms: "Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed. 32 Ormiston JA then added these observations: "It is hard to believe that Parliament intended a less stringent test for those who bring complaints to the Equal Opportunity Board and now to the Anti-Discrimination Tribunal, albeit that rules of practice and procedure in those Tribunals are less formal. In the absence of a proper hearing at which the complainant has an opportunity to call all relevant evidence there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end. For this purpose I cannot accept that Parliament intended a lesser test than has been imposed by the courts, nor can I accept that the power to dismiss should be exercised upon the basis that the claim "presents no more than a remote possibility of merit", if that expression means anything other than that the complainant has no reasonable prospect of success. At a preliminary stage there is simply no argument that some lesser form of insubstantiality can be relied upon to terminate a complaint. … The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary Tribunal hearing." 33 I adopt, respectfully, those observations and the principles explained in the authorities referred to above as reflecting the approach which the law required the Commission to take when applying s 25X at what I have described as being a preliminary stage of this matter. 34 This is not a case where the Commission found, or would have been justified in finding, that the complaint was clearly lacking in substance: Assal at 78,900; Ebber at 466-468. The Commission expressly declined to dismiss the complaint on the grounds that it was trivial (by which I think it meant to include frivolous), vexatious or lacking in substance, or that the act complained of was not unlawful (see pp 10 and 14 of its reasons). The factors upon which the Commission relied when dismissing the complaint related to the matter of relief. The Commission can be seen to have dismissed the complaint on the basis that although a contravention of s 18 might well be established at the hearing, it would be "inappropriate" to make declarations under the Act by way of remedy (see p 10 again). Crucial to that decision was the second respondent's apology in the Senate. At p 13 of its reasons, the Commission referred not only to it being "inappropriate" but also "an exercise in futility" to proceed to a determination of the complaint. That must have been on the basis that earlier in its reasons it had formed the view that even if a contravention of the Act were established at a hearing, it would be "inappropriate" to make declarations. No other basis was suggested by the Commission for it to be an exercise in futility to proceed further. 35 In my view, the Commission having found (by applying an appropriately stringent test in favour of the complainant) that the complaint had substance in relation to the matter of a contravention of the Act, should then have applied the same stringent test when assessing whether the applicant was likely to obtain the benefit of any remedial order i.e. the prospects that a determination would be made in the form of any one or more of the declarations referred to in s 25Z(1)(b). At the summary dismissal stage, I think that the Commission needed to be satisfied that even if the complaint were substantiated after a hearing, there would be no arguable case for a determination which included one or other of the declarations referred to in s 25Z(1)(b). The test at the summary dismissal stage should be much more rigorous than the test applied after a hearing. It might be quite acceptable, after a hearing, for the Commission to decide that it would be inappropriate to make declarations. But in my opinion, at the summary dismissal stage, there needs to be a far greater degree of satisfaction that nothing is likely to emerge at the hearing which would warrant the grant of one or other of the declarations provided for by the Act. What needed to be demonstrated was what Ormiston JA described in Rabel as "… facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end". 36 At a full hearing the Commission might well have noted that the applicant, in her outline of complaint, had described the comments complained about as being the "same comments as those made later by the second respondent in the Senate which formed the subject of the apology". But it might have transpired that there were significant differences between the two sets of statements. Depending upon the rest of the evidence, the apology in the Senate might have been regarded as extending to and covering the earlier statements to the extent that no further relief was warranted. But the applicant wanted to give evidence about the impact of the earlier statements upon her. She also wanted to call three Aboriginal people to give evidence of the likely impact of such statements on other Aboriginal people (see pages 5 and 6 of the transcript of the proceedings before the Commission). All that evidence was very likely to have relevance to the question whether any relief should be granted and, if so, the form of such relief. 37 Relevant to the relief potentially available in this case after a full hearing, the Commission might have found the complaint to be substantiated and made declarations in any one or more of these terms: · that the second respondent had engaged in conduct rendered unlawful by the Act and should not repeat or continue such unlawful conduct; · that the second respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the applicant; and · that the second respondent should pay to the applicant damages by way of compensation for any loss or damage suffered by reason of the second respondent's conduct. [See s 25Z(1)(b)(i), (ii) and (iv) – the list is not meant to be exhaustive.] 38 There was evidence before the Commission that the second respondent, despite his apology in the Senate, had maintained his position that his statement "Aboriginal people in their native state are the most primitive people on earth" was a legitimate opinion based on research and observation (see his letter dated 12 November 1997 to the Commission), and that his statement "Aboriginal people in their native state are the lowest colour on the civilisation spectrum" was a legitimate considered opinion based on research and his observations (see the second respondent's letter dated 10 February 1998 to the Commission). 39 It might well have been the case that, if the matter had proceeded to a full hearing, the second respondent would have been found not to have contravened s 18C. But the summary dismissal of the complaint was on the basis that he would have been found in contravention. If, after a full hearing a contravention were found to have occurred, the position maintained so tenaciously by the second respondent, despite his apology to the Senate, might well have had a significant bearing on the appropriateness or otherwise of making one or other of the declarations referred to above. 40 It is one thing, in my opinion, for the Commission to form an opinion that it would be inappropriate to make declarations by way of remedy, but it is a quite different thing to find, at the summary dismissal stage, that such an assessment means that the complaint is misconceived. There needs, in my opinion, to be a far greater degree of satisfaction that there would be no likelihood of declarations being made. All this, of course, (and I do not think this can be emphasised too much) is in the context of an assumption that a contravention of the Act would be established. 41 In my view, it can be seen that the Commission erred in law in applying the wrong test for summary dismissal under s 25X. 42 In view of the above conclusion it is, strictly speaking, not necessary to consider the applicant's contention that a complaint which was not misconceived at the time when it was made, could not be rendered misconceived by subsequent events. However, in deference to the arguments advanced on each side by counsel, I shall express a view. 43 I think that a complaint should properly be regarded as a continuing thing. It comes into existence when it is made, but until it is withdrawn or dismissed, it should be regarded as being continuously made to the court or tribunal in which it is instituted. If, in the present context, it was sufficiently clear that events had transpired since the complaint was initiated which demonstrated a factual situation in which there was no doubt that the complainant would be denied relief, then at that stage I think that a complaint would relevantly be regarded as "misconceived". However, that was not the test which was applied in this matter. ground 2 – IRrelevant considerations the applicant's contentions 44 The applicant listed what she submitted were the irrelevant considerations taken into account by the Commission as follows: (i) the second respondent's subsequent apology in Parliament in relation to a statement that was not the subject of the complaint; (ii) public debate concerning the subsequent similar views expressed by the second respondent; (iii) the fact that the second respondent was a member of Parliament answerable to the electors through Parliament; (iv) the Commission's opinion that the second respondent had not subsequently made any public statement similar in nature to those complained of; (v) the appropriateness, in the Commission's view of the circumstances, including the status of the second respondent, of pursuing the complaint; and (vi) the Commission's assessment on the material before it that the second respondent had repudiated his views, as expressed in the statement complained of, by means of a statement concerning another statement, both of which were made subsequently to and without regard to, the statement complained of. 45 The applicant contended that those considerations were inconsistent with the primary responsibility conferred on the Commission under the Act, namely, to determine whether matters complained of amounted to racial vilification under ss 18C and 25Z of the Act. The applicant submitted that, by having regard to the above matters, the Commission had applied s 25X in a manner not intended by the Parliament. Section 25X did not allow or leave it open to, the Commission to attempt to determine whether a matter had been "appropriately dealt with under the (non legislative) processes of Parliament". the second respondent's contentions 46 The second respondent submitted that in determining whether or not a decision-maker had taken into account an irrelevant consideration, the Court had to have regard to the scope and objects of the legislative scheme as a whole: Mudginberri Station Pty Ltd v Kerin (Federal Court of Australia, unreported, Neaves J 14 August 1985, Application NTG 16 of 1985); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 47 The Court's role in such circumstances was only to ensure that in selecting criteria, the decision-maker had not gone beyond "any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363 at 375. 48 If the Commission had taken irrelevant considerations into account, that default had to be measured in relation to the totality of the facts which the decision-maker had to consider. The second respondent relied upon the observation of Pincus J in Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at 435 that: "… wrong weighting does not vitiate a decision unless it 'really amounts to a failure to exercise the discretion'." 49 The second respondent submitted that the Commission had properly exercised the power conferred upon it. There had been an apology. Consideration of that fact fell well within the scope and objects of the Act. In considering and giving predominance to that fact, the Commission could not be said to have gone beyond the object the legislature had in view when enacting the Act. The fact that the primary relief sought by the complainant had been (in effect) granted was not an improper consideration. my reasoning 50 Once again, in view of my conclusion in relation to Ground 1, it is not necessary to decide whether Ground 2 has been made out. However, I shall make some brief observations. 51 Section 25X does not stipulate the factors which may be taken into account in the exercise of the Commission's discretion. Accordingly, a particular consideration will not be irrelevant except to the extent that there may be found in the subject-matter, scope and purpose of the Act some implied limitation on the factors to which the Commission may legitimately have regard: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40 and the cases there cited. When one has regard to the preamble to the Act, it is quite clear that the Act is intended to make provision for giving effect to the International Convention on the Elimination of all Forms of Racial Discrimination, the English text of which is set out in the Schedule to the Act. It is sufficient, in my opinion, to quote that part of the preamble to the Convention which expresses the purpose of the relevant United Nations Resolution. It is in these terms: "… to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination …". 52 I can find nothing in the Act which would render irrelevant as considerations to be taken into account when considering possible remedies, the fact of an apology, public debate, answerability to Parliament, lack of repetition, and the degree to which it was appropriate, in all the circumstances, that the complaint be pursued. In my view, none of those factors was irrelevant. But, as I have explained in relation to Ground 1, none of them override the legal test for summary dismissal. 53 I do not think that Ground 2 was made out. the remedy on review 54 During the course of the hearing, I raised with counsel for the applicant the question of the Commission's jurisdiction to hear her complaint if its decision were set aside, bearing in mind the amendments effected by the Human Rights Legislation Amendment Act (No. 1) 1999. By leave, the applicant's solicitors faxed to my associate, during the afternoon following the hearing, an incomplete photocopy of portions of the transitional provisions of the Amendment Act. I did not derive much assistance from that fax because, in my view, the relevant transitional provision was not among those photocopied. 55 In my opinion, the complaint falls within s 13 of Division 2 of Part 2 (Transitional and application provisions) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (as amended), being a complaint into which an inquiry had started under the Act and had not been withdrawn. If I am wrong in that view, the intent of the orders made today is that the Commission is to exercise whatever jurisdiction it retains to hear the complaint. 56 The second respondent did not submit that the Commission would lack jurisdiction if its decision were set aside and the complaint were remitted to it. Conclusion 57 For the above reasons, the application will be allowed, the Commission's decision of 21 January 1999 will be set aside and the matter will be remitted to the Commission for further consideration according to law. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr. Associate: Dated: 18 October 2000 Counsel for the Applicant: Mr G M McIntyre Solicitor for the Applicant: Messrs Dwyer Durack The First Respondent, having filed a submitting appearance, did not appear at the hearing. Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Ms G S Pitt Solicitor for the Second Respondent: Messrs Williams & Hughes Date of Hearing: 13 October 2000 Date of Judgment: 18 October 2000