Jones & anor -v- Western Aboriginal Legal Service Limited (EOD) [2000] NSWADTAP 28

Appeal Panel

CITATION: Jones & anor -v- Western Aboriginal Legal Service Limited (EOD) [2000] NSWADTAP 28 APPELLANTS Alan Jones PARTIES: Radio 2UE Sydney Pty Limited

RESPONDENT Western Aboriginal Legal Service Limited FILE NUMBER: 009027 HEARING DATES: 14/12/2000 SUBMISSIONS CLOSED: 12/14/2000 DATE OF DECISION: 12/15/2000

Principal matter DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President); Goode P - Judicial Member; Antonios Z - Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 161 of 1996 DATE OF DECISION UNDER APPEAL: 07/31/2000 LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Qantas Airways Limited v. Squires (1984) EOC 92-102 APPELLANT G Reynolds SC with R McHugh, barristers RESPONDENT REPRESENTATION: D Black, barrister

SOLICITOR GENERAL In person ORDERS: 1. The appeal is allowed; 2. Orders 1 to 4 set out in paragraph 173 of the decision of 31 July 2000 are to be set aside and in lieu thereof the complaint is dismissed.

1 In the appeal of Jones and Radio 2UE Sydney Pty Limited v. Western Aboriginal Legal Service Limited the panel is in a position to deliver a decision on the threshold point as to the standing and the validity of the complaint. 2 The appeal is brought by Mr Alan Jones and Radio 2UE Sydney Pty Limited from a decision of the Tribunal dated 31 July 2000. That decision held in favour of the present respondents in that the appellants were found (by a majority) to have racially vilified the complainant by a broadcast on 28 November 1995. 3 A large number of grounds of appeal have been filed and are the subject of written submissions from both the appellants and the respondent. Many of those grounds address the construction of the relevant statutory provisions of the Anti-Discrimination Act 1977 and raise the spectre of unconstitutionality. 4 As a result of the issue of notices under section 78B of the Judiciary Act 1903, the Solicitor General of New South Wales has appeared before us in the event that we are called upon to deal with those issues fully. However, a preliminary issue of standing arises, which, if decided in the appellants' favour, will dispose of the appeal entirely, rendering any consideration of constitutional issues unnecessary. Accordingly, with the consent of all parties, we heard argument on that issue yesterday on the basis that we would be in a position to give a decision in respect of it today. 5 The appellants' argument is advanced at point 5 of their written submissions. It is submitted that the respondent (the Western Aboriginal Legal Service Limited) had no standing to lodge the complaint under section 88 and the complaint was and is invalid. 6 It is necessary to canvass some history in respect of the complaint and its referral to the Tribunal in order to understand these submissions fully. That history is relevantly set out at paragraphs 5 and 7 to 18 inclusive of the Tribunal's decision. Of primary relevance for these purposes are paragraphs 5, 10, 16, 17 and 18. 7 The complaint was received by the President of the Anti-Discrimination Board on or about 5 December 1995 by way of a letter under the hand of Noel Gillon, as Co-ordinator, Western Aboriginal Legal Service Limited. The letter concluded with the statement "We request the Board to investigate this matter further." Despite the reference to "We", when the complaint was referred to the then Equal Opportunity Tribunal on 21 August 1996, the letter from the President characterised the complaint as a complaint of the Western Aboriginal Legal Service Limited on behalf of Noel Gillon against Alan Jones. 8 The panel is of the view that the President was entitled to characterise the complaint in this way. The first points of claim document filed with the Tribunal dated 2 October 1996 identified the complainant as Mr Noel Gillon. The Western Aboriginal Legal Service Limited was referred to as "a representative body" in terms which picked up section 88(1A) and section 88(1B). Thus far, the complainant/respondent appeared to have confirmed the characterisation of the complaint made by the President of the Anti-Discrimination Board when referring the complaint. 9 On its face, the complaint was valid at this stage because it met the requirements of section 88(1A). However, on 25 May 1999 an amended points of claim was filed wherein the complainant was described as the Western Aboriginal Legal Service Limited. Paragraph 1 of that document stated "The complaint should be dealt with as a representative complaint". 10 On 27 July 1999 further amended points of claim were filed. Again the complainant was described as the Western Aboriginal Legal Service Limited "a representative body for Aboriginal Persons within New South Wales". Paragraph 2 stated, "The Complainant seeks to have the matter dealt with as a representative complaint". 11 From the foregoing it appears to the panel that although the complaint was validly lodged with the President of the Board and validly received by the Tribunal's predecessor, the character of the complaint as foreshadowed by the complainant fundamentally changed as and from 25 May 1999 - that is, according to the points of claim, there was no person named in the complaint on whose behalf the complaint was brought before the Tribunal. The foreshadowed change in the character of the complaint was made good before the Tribunal. 12 The reasoning of the majority of the Tribunal at paragraphs 29 to 40 inclusive sought to deal with the argument advanced by the respondents below and advanced again by the appellants before us. After referring at some length to the nature of individual complaints and so-called "class complaints" under section 88(1) as discussed by their Honours Hutley and Priestley, JJ, Judges of the Court of Appeal, in Qantas Airways Limited v. Squires (1984) EOC 92-102 and after referring to the history of the amendments to sections 88(1A), (1B) and (1C) and the available remedies under section 113 of the Act, the majority concluded at paragraph 41 that the complaint before it was "a 'class' complaint which the complainant had subsequently sought to have styled as a representative complaint". In other words, the Tribunal proceeded to deal with it as one made under section 88(1)(b). This was a contention advanced by the complainant at the hearing. (See paragraph 36 of the decision.) 13 Before proceeding, it should be observed yet again that whatever the validity of the complaint when it was lodged with the President and whatever its validity on referral to the Tribunal, it was dealt with by the Tribunal at the hearing under section 88(1)(b). The Tribunal was then faced with the necessity to construe "person" in section 88(1)(b) consistently with the complainant's identity as a corporation. It did so, relying upon the fact that respondents to complaints under the Act are often corporations and the terms of section 8(d) of the Interpretation Act 1987. 14 Mr Reynolds, of Senior Counsel, for the appellants has referred us to section 5(2) of the Interpretation Act, which limits the application of the Interpretation Act to other Acts in so far as the contrary intention appears in the Act to be construed. Herein lies, in the panel's view, the flaw in the Tribunal's reasoning at paragraphs 43 and 44 of the decision. No reference was made in this context to section 88(1D) of the Anti-Discrimination Act by the Tribunal. That provision is set out at paragraph 27 of the decision and reads as follows: "A vilification complaint cannot be lodged under this section unless each person on whose behalf the complaint is lodged: (a) had the characteristic that was the ground for the conduct that constitutes the alleged contravention concerned; or (b) claims to have the characteristic and there is no sufficient reason to doubt that claim." 15 A passing reference was made at paragraph 36 of the decision to that provision. That provision cannot be construed as applicable to anyone other than a natural person. It is not possible for a corporation to be Aboriginal or homosexual or a carrier of HIV-AIDS. 16 It follows that Mr Reynolds' submission has been made good. It was not open to the Tribunal to apply section 8(d) of the Interpretation Act to the Anti-Discrimination Act in order to construe "person" in section 88(1)(b). Where the complaint is one of vilification, a corporation cannot constitute the complainant under section 88(1). It appears to the panel that the only way in which a corporation can constitute a complainant in a racial vilification complaint is under section 88(1A), and then only on behalf of named persons. 17 The issue at the heart of this appeal cannot, in the panel's view, be described as a procedural defect. The constitution of the complaint and the correct complainant are vital to the exercise of the Tribunal's jurisdiction. Accordingly, the appeal panel makes the following orders: The appeal is allowed. Orders 1 to 4 set out in paragraph 173 of the decision of 31 July 2000 are to be set aside and in lieu thereof the complaint is dismissed.