Barber v Careerlink Training Services Pty Ltd & Ces [1997] HREOCA 39 (23 July 1997)

Human Rights & Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No. 98/4

BETWEEN :

Norman Barber

Complainant

AND:

Linda Matthews

First Respondent

AND:

Office of the Commissioner for Equal Opportunity (South Australia)

Second Respondent

Reasons For Decision of Inquiry Commissioner Richard Tracey QC

Date Of Decision: 18 December 1998. INTRODUCTION

This matter has a long and involved history. On 30 May 1996 Mr. Barber lodged a complaint against an organisation called "Adelaide Options". He alleged that he had been victimised or discriminated against (or both) on the ground of his sex by a female employee of Adelaide Options. Adelaide Options is the name publicly used by the Office of the Service to Youth Community Inc.

On 7 June 1996 Mr. Barber lodged a complaint against the Commonwealth Employment Service. This complaint also alleged victimisation on the ground of sex.

Both complaints were lodged in the Office of the South Australian Commissioner for Equal Opportunity ("SAEOC"). They were processed within that office on the assumption that they were complaints which fell to be dealt with under the Equal Opportunity Act 1984 (SA) ("the State Act"). The South Australian Commissioner holds delegated powers under the Sex Discrimination Act 1984 (Cth) ("the SDA") but she took the view that these complaints could not be dealt with under the SDA.

On 18 July 1996 the South Australian Commissioner determined, under the State Act, not to inquire into either of the complaints. She found that the complaint against Adelaide Options did not fall within the definition of sexual harassment under the State Act. She found that Mr. Barber could not proceed against the Commonwealth Employment Service, as an instrumentality of the Commonwealth, under the State Act.

Mr. Barber was not satisfied with these decisions and took the matter up with the South Australian Ombudsman. Following discussions between the Ombudsman and the South Australian Commissioner it was determined that the complaints should be reopened and dealt with under the Commonwealth Act. To this end the files were referred by the South Australian Commissioner to the Commonwealth Sex Discrimination Commissioner. On 3 April 1997 the Commonwealth Sex Discrimination Commissioner advised Mr. Barber that he was not entitled to make a complaint or institute a proceeding under the SDA because he had already made a complaint in respect of the same matters to the South Australian Commissioner: see section 10(4) of the SDA.

2. BACKGROUND

On 13 October 1997 Mr. Barber lodged the complaint which is the subject of this determination. He claimed that the South Australian Commissioner and SAEOC had discriminated against him on the ground of sex in the way in which it handled the two complaints which had been made by him in 1996.

Specifically, he complained that the South Australian Commissioner and SAEOC, "......applied State legislation to a Commonwealth complaint, then claimed there was no jurisdiction. This then allowed her to use the double jeopardy precedent to provide a reason to not investigate the complaint under the proper Commonwealth legislation. The staff then advised me (I went to EO seven or eight times over as many months), that the SA Equal Opportunity Tribunal (even if it was appropriate) might lumber me with heavy costs and refuse to provide any information about it) (it sort of doesn't exist on a day to day basis and a Court clerk is its only regular representative)."

In written submissions filed in support of his complaint Mr. Barber expresses his grievance somewhat more widely when he says "The accusation of sexist discrimination against Ms. Matthews and [SAEOC] is based on the level of service provided from about March 1996 to June 1998."

The Acting Sex Discrimination Commissioner considered the complaint and, on 22 December 1997, advised Mr. Barber that she was "satisfied that your complaint, against Ms. Matthews and the SAEOC, under the [SDA] is not unlawful and so I have discontinued my inquiry into your complaint pursuant to s.52(2)(a)". I take this to be a decision that the conduct complained about by Mr. Barber was not unlawful by reason of Part II of the SDA.

By letter of 24 December 1997 Mr. Barber exercised his right, under section 52(4) of the SDA, to require the Acting Sex Discrimination Commissioner to refer the complaint, insofar as it alleged discrimination on the ground of sex, to the Human Rights and Equal Opportunity Commission ("the Commission").

A preliminary conference was conducted on 27 July 1998. Each of the parties indicated that it was preferable that the matter proceed upon written submissions. Pursuant to directions given at the conference I have received written submissions from Mr. Barber and from the South Australian Commissioner and SAEOC. Mr. Barber advised that he did not wish to make further submissions in reply.

3. SUBMISSIONS

3.1 The complainant's submissions

The central issue which arises at the outset is whether the complaint made by Mr. Barber alleges conduct which is rendered unlawful by the SDA. Mr. Barber contends that the conduct about which he is aggrieved falls within the Commission's jurisdiction. I take this to be an assertion that the conduct contravenes the SDA. His reasons for so contending are not clear to me. Accordingly, I refrain from paraphrasing them and set them out in full. He submits that the Commission has jurisdiction over the respondents because:

"(1) The Equal Opportunity Commission of South Australia [SAEOC] is the custodian of both Commonwealth and South Australian discrimination legislation. It considers both before measuring a complaint by either one. Ms. Matthews is an employee within EOCSA.

(2) [SAEOC] is paid by HREOC to administer HREOC legislation, thus is a servant of the Commonwealth and subject to HREOC anti-discrimination legislation.

(3) Ms. Matthews wrote to the SA Ombudsman in 1997 stating that complainants would be given 'informed consent' as to which legislation they wanted used for a complaint.

(4) HREOC employees in HREOC offices in Canberra and Sydney are servants of the Commonwealth. Ms. Mathews and [SAEOC] staff often do identical work as these HREOC employees so should be considered servants of the Commonwealth.

(5) The windows of the [SAEOC] offices were labelled 'Human Rights & Equal Opportunity Commission' until October 1997 when [SAEOC] moved to non-shopfront offices."

Mr. Barber does not identify any specific provisions of the SDA on which he relies in making his complaint.

3.2 The respondents' submissions

The South Australian Commissioner first takes the point that the Office of the Commissioner for Equal Opportunity (South Australia) which is identified as the second respondent in the matter is not a legal entity and that, accordingly, the proceeding, as against the second respondent, should be dismissed. It is not apparent to me how the second respondent came to be described in the way it now is. Mr. Barber's original complaint was not against the Office of the Commissioner but rather against the South Australian Commissioner and SAEOC. SAEOC is not a legal entity under the State Act. It is not, therefore, appropriate that SAEOC be substituted as the second respondent. The proper course, in my view, is to accede to the first respondent's submission and dismiss the complaint against the second respondent.

The respondents submit that there are only two possible sections of the SDA which, even colourably, have application to Mr. Barber's complaint. They are sections 22 and 26. They deal respectively with discrimination in the provision of goods or services and discrimination in the performance of any function or power under Commonwealth law, or for the purposes of a Commonwealth program. They submit that neither of these provisions can have application in the present circumstances. I am unable to identify any other provisions of the SDA which might lend support to Mr. Barber's application.

4. THE LAW

Both sections 22 and 26 fall within Division 2 of Part II of the SDA. They provide:

22(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy -

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State.

26(1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, marital status, pregnancy or potential pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2) This section binds the Crown in right of a State."

Many of the terms employed in these sections are defined in section 4 of the SDA. Where necessary they will be referred to later in these reasons.

It is necessary, firstly, however, to note certain Constitutional restrictions on the operation of sections 22 and 26. These constraints are recognised in section 9 of the SDA. That section commences with certain definitions and then continues relevantly:

"9(1) .........

9(2) Subject to this section, this Act applies throughout Australia.

(3) This Act has effect in relation to acts done within a Territory.

(4) The prescribed provisions of Part II [which relevantly include s.22 but not s.26] .......have effect as provided by sub-section (3) of this section and the following provisions of this section and not otherwise.

(7) The prescribed provisions of Part II have effect in relation to acts done, by or on behalf of -

(a) the Commonwealth.......; or

(b) a body or authority established for a public purpose by a law of the Commonwealth.......,

in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.

(10) If the Convention [on the Elimination of All Forms of Discrimination Against Women] is in force in relation to Australia, the prescribed provisions of Part II......have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention. (Emphasis added)

It can, therefore, be seen that, insofar as the provisions of section 22 of the SDA might be relied on by Mr. Barber, they will only apply if one or more of the acts about which he makes complaint fall within the terms of section 22 and the acts are done by or on behalf of one of the entities referred to in section 9(7). The operation of section 26 is not constrained by section 9 and will, therefore, operate, if at all, in accordance with its terms.

5. FINDINGS

I come first to section 22. As already noted, it will only apply if the impugned act can be said to have been done "by or on behalf of the Commonwealth" or "a body or authority established for a public purpose by a law of the Commonwealth": see section 9(7). I have no doubt that this Commission is such a body. The question then arises as to whether, in dealing with Mr. Barber's complaint to her, the South Australian Commissioner was acting by or on behalf of this Commission. It is, as I understand it, common ground that the South Australian Commissioner has delegated power to deal, on behalf of this Commission, with complaints lodged under the SDA. However, there is no evidence that the South Australian Commissioner took any steps under the SDA when dealing with Mr. Barber's complaint to her. This is confirmed by the terms of the correspondence dated 18 July 1996 from the South Australian Commissioner to Mr. Barber. The Commissioner makes it plain that she was rejecting his complaints under the State Act. No consideration was given to any rights which he may or may not have had under the SDA. None of the matters referred to by Mr. Barber as supporting a contrary view of the South Australian Commissioner's role goes further than establishing that, on some occasions, the South Australian Commission may act on behalf of this Commission. I should add that section 9(10) does not operate so as to render section 22 applicable to a male applicant such as Mr. Barber: cf. Hagar v. Minister for Health & Family Services (1997) EOC 92-881 at 77,166-167.

Similar considerations lead me to a conclusion that section 26 has no application in the present matter. Had the South Australian Commissioner been exercising delegated functions under the SDA (a "Commonwealth law" for the purposes of the SDA: see section 4(1)), it may have been necessary to consider in some greater detail the question of whether the South Australian Commissioner's actions (or inaction) in relation to Mr. Barber's complaint to her were tainted by a proscribed form of discrimination. It is sufficient that I record that I am not satisfied, on the material before me, that any of the conduct complained of in this matter was engaged in by reason of Mr. Barber's sex.

In considering the possible application of sections 22 and 26 of the SDA, I have had regard to both the narrower (and original) terms of Mr. Barber's complaint and the wider formulation which he advances in his written submissions. On neither version could he succeed in making good claims under section 22 or s.26 of the SDA.

6 CONCLUSION

The appropriate order is that the complaint, the subject of this inquiry, be dismissed. I so determine.

DATED this 18^th day of December 1998

Richard Tracey QC

Hearing Commissioner