Jerzy Trau v Repatriation Commission & Anor [1998] FCA 1459 (19 November 1998)

Last Updated: 20 November 1998

FEDERAL COURT OF AUSTRALIA

VETERANS' ENTITLEMENTS - application to review decision to refuse to issue "Gold Card" to applicant - whether to distinguish between those who had served in allied forces on the ground of domicile at the time of enlistment was to discriminate on the ground of race, descent or national or ethnic origin - whether s 10(1) of the Racial Discrimination Act 1975 (Cth) overrides the Veterans' Entitlements Act 1986 (Cth) - whether a right to services provided under Pt V of the Veterans' Entitlements Act 1977 is a fundamental right of a kind protected by the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Racial Discrimination.

Administrative Decisions (Judicial Review) Act (Cth)

Veterans' Entitlements Act 1986 (Cth), ss 5C(1), 6A(1), 7

Racial Discrimination Act 1975 (Cth), ss 9, 10, 22, 24(2)(d)

International Convention on the Elimination of All Forms of Racial Discrimination

Australian Medical Council v Wilson (1996) 68 FCR 46, applied

Secretary, Department of Veterans' Affairs v P (1998) 79 FCR 594, applied

JERZY TRAU v REPATRIATION COMMISSION AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

NG 792 of 1998

LEHANE J

SYDNEY

19 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	Ng 792 of 1998

BETWEEN:	JERZY TRAU Applicant
AND:	REPATRIATION COMMISSION First Respondent HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	19 November 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 792 of 1998

BETWEEN:	JERZY TRAU Applicant
AND:	REPATRIATION COMMISSION First Respondent HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent

JUDGE:	LEHANE J
DATE:	19 November 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant, Dr Trau, seeks review of a decision of the second respondent (the Commission), made on 6 July 1998. By that decision the Commission upheld an earlier decision of a delegate of the Race Discrimination Commissioner not to continue an inquiry into a complaint made by Dr Trau under s 22 of the Racial Discrimination Act 1975 (Cth), on the ground that the complaint lacked substance (s 24(2)(d)). Presumably (though the application does not expressly say so) the review is sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth): the Commission's decision is reviewable under that Act (Australian Medical Council v Wilson (1996) 68 FCR 46 at 65).

Facts

Dr Trau was born in Poland on 5 April 1923. He served during World War 2 in the Polish Army. After capture and internment successively by the German and Russian Armies, Dr Trau was repatriated to Poland in August 1945. He left Poland in 1969 and lived in Italy and later in the United States of America before migrating to Australia in 1975. In 1978 he became an Australian citizen.

During 1996, Dr Trau applied for what is described as a "Gold Card", then issued to persons who met criteria which made them eligible for the provision of certain medical and other treatment in accordance with Pt V of the Veterans' Entitlements Act 1986 (Cth). The first respondent refused to issue such a card to Dr Trau; the ground of the refusal was that Dr Trau did not meet the criteria. That refusal was the subject of Dr Trau's complaint to the Commission.

The Legislation

Under Pt V of the Veterans' Entitlements Act, certain veterans are entitled to the provision, in particular circumstances, of particular forms of treatment. In order to ascertain who is a veteran, it is necessary to follow a trail of definitions from s 5C(1) through s 7 to s 6A. But it is sufficient for present purposes to record that those who served during World War 2 in a defence force other than the Australian forces qualify as "veterans" only if they fall within Item 3 of the table in s 6A(1):

"A member of the naval, military or air forces of ... an allied country who was domiciled in Australia or an external Territory immediately before his or her appointment or enlistment in those forces."

Dr Trau served in the military forces of an allied country. He was not, however, domiciled in Australia at the time of his enlistment. His acquisition of an Australian domicile (and of Australian citizenship) was a much later event. The result is that, under the terms of the Veterans' Entitlements Act, he is not entitled to the provision of services to him under Pt V or, it may be taken, to the card issued to record an entitlement to those services. The question then is whether the Racial Discrimination Act makes a difference.

Section 9 of the Racial Discrimination Act provides, in subsections (1), (1A) and (2) as follows:

"9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention."

Subsections (1) and (2) of s 10 are in the following terms:

"10. (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention."

The Convention referred to in those provisions is the International Convention on the Elimination of All Forms of Racial Discrimination to which Australia is a party and which is set out in the schedule to the Act. Article 5 of the Convention contains an undertaking by the States Parties to "eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of [certain specified rights]". Included among those rights are certain economic, social and cultural rights, particularly (para (e)(iv)) the "the right to public health, medical care, social security and social services".

The Decision of the Commission

The decision of the delegate, confirmed by the Commission, that Dr Trau's complaint lacked substance, appeared to have at least two bases. One, following the decision of Drummond J in Secretary, Department of Veterans' Affairs v P (1998) 79 FCR 594, was that discrimination on the basis of domicile was not discrimination based on race or national or ethnic origin. The other (with reference, presumably, to s 9(1A)(a) of the Racial Discrimination Act) was that the particular discrimination, even if based on national or ethnic origin, was not unreasonable. Additionally, though without particularly developing the point, the delegate noted that in P Drummond J had held that s 9(1) of the Racial Discrimination Act could not operate to make unlawful action taken to implement a parliamentary command.

Applicant's Submissions

Counsel for Dr Trau submitted, in effect, that to distinguish between those who had served in allied forces on the ground of domicile at the time of enlistment was to discriminate on the ground of race, descent or national or ethnic origin. That was so, it was said, because domicile of origin is acquired at birth by "descent", in the sense that a child acquires at birth the domicile of a parent. It followed, as I understood the argument, that to distinguish on the basis of domicile is equally to discriminate on the basis of national or ethnic origin. Equally, it was said, if distinctions are drawn, on the footing of domicile, for the purpose of determining eligibility for treatment under Pt V of the Veterans' Entitlements Act, the distinctions thus drawn discriminate on the basis of national or ethnic origin; thus, in substance, by virtue of s 10(1) of the Racial Discrimination Act the distinctions cease to apply (with consequences which, though not explored in argument, might be both extensive and surprising). Particularly, it was said, s 10(1) overrode the Veterans' Entitlements Act, to the extent necessary to eliminate the distinctions.

Reasoning

I do not accept the applicant's arguments. A law which limits the availability of particular services to those, among all who served in allied forces, who at the time of enlistment were domiciled in Australia is not one by which persons of a particular race or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race or national or ethnic origin. Those who were domiciled in Australia at the time of enlistment might have been of any race or national or ethnic origin. They might have acquired the domicile by choice. If they acquired it at birth, they might have acquired it from parents of any race or national or ethnic origin. Discrimination by reference to domicile is no more discrimination for a proscribed reason than was the discrimination by reference to residence considered in P: see at 597. Consequently, even disregarding the circumstance that the Veterans' Entitlements Act is later legislation than the Racial Discrimination Act, nothing in s 10(1) of the latter Act has the effect of extending the benefits under Pt V of the former to persons whose domicile, at the time of enlistment in allied forces, was other than Australian. That being so, a decision made in accordance with the parliamentary command, contained in the Veterans' Entitlements Act, it is not an infringement of s 9 (at 597). In any case, I do not think that the way in which domicile of origin is acquired requires the conclusion that discrimination based on domicile is to be regarded as based on descent, any more than it should be regarded as based on race or national or ethnic origin. Anyone, at least among those who are lawfully entitled to remain in Australia, may acquire a domicile of choice here. Those who, when they enlisted in allied forces, had a domicile of choice in Australia may be within the class of eligible veterans just as those who then retained an Australian domicile of origin may be.

Again for reasons elaborated by Drummond J in P (see at 601) I greatly doubt whether a "right" to services provided under Pt V of the Veterans' Entitlements Act is a fundamental right of a kind protected by the Racial Discrimination Act or the Convention: benefits under the Veterans' Entitlements Act are, like those under the Defence Service Homes Act 1918 (Cth), conferred by the State in recognition of veterans' service in defence of the State's existence and of its interest in conflict between the State and other States. They stand quite apart, I think, from universal rights for example, to public health, medical care, social security and social services.

Conclusion

It follows that no error has been established on the part of the Commission. Accordingly, the application must be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated: 19 November 1998

Counsel for the Applicant:	Mr R.W. Cameron
Solicitor for the Applicant:	Sweeney Waterford
Counsel for the First Respondent:	Ms R.M. Henderson
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	John Armstrong
Date of Hearing:	13 November 1998
Date of Judgment:	19 November 1998