Viskauskas v Niland [1983] HCA 15

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Brennan JJ. Viskauskas v Niland [1983] HCA 15

ORDER Declare that the defendant has and had no power pursuant to the Anti-Discrimination Act 1977 NSW, as amended, to investigate, to conduct conciliation proceedings in respect of, or to refer to the Equal Opportunity Tribunal a complaint arising out of the conduct by the plaintiffs, or any of them, with respect to any refusal on 27 November 1980 to provide goods or services as alleged by the complainants. Further order that the defendant pay the plaintiffs' costs of and incidental to these proceedings.

Cur. adv vult.

May 19 Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ.

The Court delivered the following written judgment:—

The question for decision in these proceedings is whether the provisions of Pt II of the Anti-Discrimination Act 1977 NSW ("the State Act"), as amended, are inconsistent with those of the Racial Discrimination Act 1975 Cth ("the Commonwealth Act"), as amended, and are accordingly invalid by reason of s. 109 of the Constitution.

The proceedings, which were commenced in the Supreme Court of New South Wales, arose out of an incident which occurred on 27 November 1980 at the plaintiffs' hotel at Kempsey, when, so it is alleged, three persons ("the complainants") were refused service in the bar of the hotel on the ground of their race. On the same day the Commissioner for Community Relations ("the Commissioner"), appointed under s. 29 of the Commonwealth Act, was informed of the incident (although not by the complainants) and commenced an inquiry under s. 21(1)(b) of the Commonwealth Act. On 2 December 1980 each of the complainants wrote to the Counsellor for Equal Opportunity ("the Counsellor"), appointed under Pt VII of the State Act, complaining that unlawful discrimination based on race, and involving a contravention of ss. 7 and 19 of the State Act, occurred during the incident at the hotel. (The provisions of Pt VII of the State Act have been repealed by s. 5 and Sch. 3 of the Anti-Discrimination (Amendment) Act 1982 NSW and the functions of the Counsellor have been transferred to the President of the Anti-Discrimination Board for the State of New South Wales. That Act, however, did not come into force until 20 December 1982.) On receipt of the complaints, the Counsellor commenced an investigation pursuant to s. 89 of the State Act. When, in December 1980, the Commissioner and the Counsellor each became aware that the other was investigating the incident, an officer of the Commissioner informed both the solicitor for the plaintiffs and the office of the Counsellor that the Commissioner had stayed his inquiry in order to allow the Counsellor the chance to resolve the matter by conciliation. Notwithstanding this statement, and later assurances by the Commissioner that he would withhold action to allow the matter to proceed under the State Act, the officers of the Commissioner did from time to time during 1981 attempt to effect a settlement of the matter between the plaintiffs and the complainants. Finally, on 27 April 1982, the delegate of the Commissioner advised that he had decided, in accordance with the power contained in s. 21(2)(b)(ii) of the Commonwealth Act, not to continue with his inquiries, because he had formed the opinion that the complainants did not desire that his inquiry be continued. The Counsellor also convened meetings between the plaintiffs and the complainants in pursuance of her duty to endeavour to resolve the complaint by conciliation — meetings were held on 10 February 1981 and 30 July 1982 — but the matter was not resolved. The present proceedings, by which declaratory and other relief is sought, were commenced by the plaintiffs against the Counsellor and the Anti-Discrimination Board for New South Wales on 12 December 1980. The proceedings were later discontinued against the second defendant. We have allowed an amendment to substitute the name of Carmel Josephine Niland for that of the Counsellor. The proceedings were eventually removed into this Court on the application of the Attorney-General for New South Wales made under s. 40 of the Judiciary Act.