Secretary, Department of Veterans' Affairs v Mr & Mrs P. & Ors [1998] FCA 85 (11 February 1998)

FEDERAL COURT OF AUSTRALIA

RACIAL DISCRIMINATION - alleged discrimination on the basis of national origin - statutory criterion for eligibility for a defence services home loan certificate that applicant, who did not serve in any of the Australian armed services, must have resided in Australia at time of his enlistment in that armed service of the Dominion in which he served - applicant New Zealand born and resident there on his enlistment in New Zealand army - certificate refused because applicant did not satisfy the statutory residence criterion - whether refusal a breach of s 9(1) the Racial Discrimination Act 1975 (Cth).

RACIAL DISCRIMINATION - whether entitlement to a war veteran's benefit a right or freedom protected by ss 9(1) or 10 the Racial Discrimination Act 1918 .

STATUTORY INTERPRETATION - legislative intent - true meaning of words used by Parliament, not subjective intent of legislature.

WORDS AND PHRASES - "Australian Soldier".

Racial Discrimination Act 1975 (Cth), ss 9(1), 10

Defence Service Homes Act 1918 (Cth), ss 4, 17, 18

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

Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206, referred to

Wik Peoples v Queensland (1996) 187 CLR 1, referred to

Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, applied

Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, referred to

SECRETARY, DEPARTMENT OF VETERANS' AFFAIRS v MR & MRS P & ORS

QG 126 of 1997

DRUMMOND J

BRISBANE

11 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 126 of 1997

BETWEEN:	THE SECRETARY, DEPARTMENT OF VETERANS' AFFAIRS Applicant
AND:	MR & MRS P First RespondentS HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and STEPHEN KEIM (Inquiry Commissioner of the Human Rights And Equal Opportunity Commission) Second RespondentS

JUDGE:	DRUMMOND J
DATE OF ORDER:	11 FEBRUARY 1998
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The Commissioner's decision under review be set aside.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 126 of 1997

BETWEEN:	THE SECRETARY, DEPARTMENT OF VETERANS' AFFAIRS Applicant
AND:	MR & MRS P First RespondentS HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and STEPHEN KEIM (Inquiry Commissioner of the Human Rights And Equal Opportunity Commission) Second Respondents

JUDGE:	DRUMMOND J
DATE:	11 FEBRUARY 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The applicant seeks review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a determination by the second respondent under s 25Z(1)(b) the Racial Discrimination Act 1975 (Cth), which included a declaration that the applicant had engaged in conduct rendered unlawful by s 9(1) the Racial Discrimination Act 1974 (Cth) (sic) in refusing to provide to Mr P a certificate pursuant to s 17 the Defence Service Homes Act 1918 (Cth) and a declaration that the applicant should provide that certificate. The second respondent's determination is a reviewable decision for the purposes of the ADJR Act: Australian Medical Council v Wilson (1996) 68 FCR 46 at 65.

Section 17(1) the Defence Service Homes Act provides:

Subject to this Act, the Secretary shall, on application by a person for a certificate of entitlement in relation to subsidy on a subsidised advance that the person may seek from the Bank, issue to the applicant a certificate of entitlement certifying that subsidy is payable by the Commonwealth to the Bank if, in accordance with the agreement, the Bank makes that advance to the applicant.

The "agreement" here referred to is the agreement scheduled to the DSH Act, which was made between the Commonwealth and Westpac Banking Corporation on 9 November 1988 under which the Commonwealth privatised its Defence Service Homes Corporation and "the Bank" is a reference to Westpac: see s 4(1) the DSH Act.

Section 18(1) permits the Secretary to issue such a certificate of entitlement only if satisfied, among other things, that the applicant is "an eligible person". (The Secretary must also be satisfied that, among other things, the advance sought is for the purpose of enabling the applicant to acquire a dwelling house as the home for the applicant and that the applicant does not own any dwelling other than one in respect of which the advance is payable.)

The expression "eligible person" in s 18 is defined in s 4 to mean, among other things, a person who is "an Australian Soldier". The term "Australian Soldier" is defined in the Act, in the form in which it now takes, as follows:

`Australian Soldier' means a person who, during the First World War or the Second World War or during the warlike operations in or in connection with Korea after 26 June 1950 or the warlike operations in or in connection with Malaya after 28 June 1950:

(a) is or was a member of the Naval, Military or Air Forces of Australia enlisted or appointed for or employed on active service outside Australia or on a ship of war; or

(b) is or was a member of any nursing service maintained by the Commonwealth in connexion with the Defence Force of the Commonwealth or any part thereof accepted or appointed for service outside Australia; or

(c) served in the Naval, Military or Air forces of any part of the King's Dominions, other than the Commonwealth, and who proves to the satisfaction of the Secretary that he had, before his enlistment or appointment for service, resided in Australia or a Territory; or

(d) was a member of any nursing service maintained by the Government of any part of the King's dominions other than the Commonwealth, in connexion with the Naval, Military or Air Forces of that part, and who proves to the satisfaction of the Secretary that she had, before her appointment to that service, resided in Australia or a Territory;

and who ...

By s 4(2B), it is provided that:

For the purposes of paragraph (c) of the definition of `Australian Soldier' in subsection (1), a person shall not be taken to have served in the Naval, Military or Air Forces of any part of the King's Dominions, other than the Commonwealth [of Australia] unless he served in such Forces:

(a) in an operational area outside the country or place of his enlistment or appointment for service; or

(b) as a combatant in an active combat unit.

There was no dispute as to the facts in the proceedings before the Commissioner, in so far as they concern Mr P. He was born and grew up in New Zealand; soon after the outbreak of the Second World War, he voluntarily enlisted in the New Zealand Army and served in New Zealand until 1942, when he transferred to the Royal New Zealand Air Force and underwent air crew training. In 1944 he was posted to England and was assigned to a Royal Air Force squadron. After a short period in England, he was assigned to what I take to be another Royal Air Force squadron in the Middle East, where he saw active service; he served with distinction and was decorated for gallantry. He was demobilised in New Zealand in 1946. He came to Australia in 1981, where he has resided ever since.

It is not clear when Mr P applied to the applicant for a certificate of entitlement under the DSH Act. But he appears to have done that only in the last couple of years. Refusal by the applicant of this certificate ultimately led to a complaint by Mr and Mrs P to the Human Rights and Equal Opportunity Commission under s 22 the RD Act, then to a decision by the Race Discrimination Commissioner's delegate, pursuant to s 24(2) of that Act, not to inquire into the matters raised by the complaint and ultimately to referral of the complaint, at the request of Mr and Mrs P, pursuant to s 24(4), to the Commission. Their complaint was heard by a single member of the Commission, pursuant to s 25B.

The Commissioner observed that it was common ground that Mr P's military service satisfied the requirements of s 4(2B) of the DSH Act and that Mr P would have qualified for a certificate of entitlement in relation to subsidy under s 17 of that Act, except for the requirement imposed by para (c) of the definition of "Australian Soldier" in s 4 of that Act that, before his enlistment in 1939 in the New Zealand armed forces, he had resided in Australia.

The Commissioner acknowledged that he had no authority to make a declaration with respect to the impact of s 10 the RD Act on other legislation, such as the DSH Act, and accepted that, so far as Mr and Mrs P's complaint was concerned, he could make a determination in their favour only if he was satisfied that the first respondent's conduct the subject of the complaint infringed s 9 the RD Act (a view consistent with ss 22 and 24 the RD Act). The Commissioner disposed of the case in their favour by making the declarations to which I have referred.

The Commissioner arrived at this result in the following way: he accepted that, in terms, para (c) of the definition of "Australian Soldier" in s 4 of the DSH Act discriminated by reference to residence, ie, on a basis that involved no conflict with the RD Act; but his examination of the DSH Act and the parliamentary record of the debate in December 1918 on the bill that became the War Service Homes Act led him to the conclusion that "the real legislative purpose of the residence qualification contained in the definition" was to discriminate by reference to national origin. The final step in his reasoning was that since "as a matter of fact, the distinction made by the statute is one based on national origin", although expressed to be based on residence, the actions engaged in by the officers of the Department in refusing Mr P his certificate also involved discrimination by them against Mr P on the ground of the latter's national origin, and thus conduct by those officers that constituted a breach of s 9(1) the RD Act. It is clear that the Commissioner, in reading this conclusion, considered that the Departmental officers had done nothing other than implement the statute according to its terms and personally, had not acted from any improper motives. The Commissioner also observed that s 18 the RD Act supported his conclusion that the actions of the Departmental officers in implementing what he considered to be discriminatory legislation itself amounted to unlawful conduct within s 9(1) the RD Act and he also observed that if that conduct were otherwise authorised by the DSH Act, it was not so authorised "because of the supervising effect of s 10 of the RD [Act]", although he did not base his decision on these latter considerations.

There are a number of invalidating errors of law in the Commissioner's determination.

First, there is no room for the operation of s 9 (or any other provisions) of the RD Act upon the action taken by Departmental officers to implement the DSH Act for the reason that the Parliament by ss 17 and 18 the DSH Act has authorised that action: s 9(1) the RD Act cannot operate to make unlawful action taken to implement a parliamentary command. See Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206 at 220 and Wik Peoples v Queensland (1996) 187 CLR 1 at 259. Section 18 the RD Act cannot justify any different result.

Secondly, while the Commissioner correctly recognised that, in terms, para (c) of the definition of "Australian Soldier" discriminated, in a non-objectionable way, by reference to residence, he made a finding of fact that this was, in effect, a subterfuge adopted by the Parliament whose real interest was to ensure that the statutory provision would discriminate by reference to whether the applicant was a person of Australian origin. He said that although para (c) of the definition of "Australian Soldier" on its face discriminates by reference to residence and not by reference to national origin, since what he described as "the basic qualifying factor for a loan" was not service in the Australian armed forces, but rather the armed forces of the Empire, "there seems to have been little purpose in the Parliament imposing the further qualification of residence in Australia prior to enlistment ... other than to make a secondary qualifying basis that one must be an Australian or, in terms of the requirements of s 9(1) [the RD Act], a person of Australian origin". He then referred to a comment in December 1918 by Senator Millen, the Minister responsible for the Bill which became the War Service Homes Act 1918, (renamed the Defence Service Homes Act 1918 by s.1(3) of Act No 31 of 1973) made in response to a proposal by another member of the House to amend the definition of "Australian Soldier" in the 1918 Bill. Senator Millen, in a comment applicable to all persons within each of the paragraphs of the definition of "Australian Soldier" in what became s 4 of the 1918 Act, said: "The term `Australian Soldier' means any Australian who has served with any section of the King's Forces". The Commissioner understood this to be an expression of opinion by the Minister that "the purpose of the way in which Australian Soldier is defined in the legislation is to ensure that the benefits only go to persons of Australian national origin rather than persons of British origin or from other parts of the empire". The Commissioner appears to have made the assumption that, since a person could qualify under para (c) as an "Australian Soldier" only if he were resident in Australia on enlistment, very few people of non-Australian national origin were likely, as a matter of fact, to fulfil the residence requirement. Hence his conclusion as to the real legislative purpose of the residence qualification to which I have referred. The Commissioner made this assumption without feeling the need to test its validity against readily available information, eg, census information.

The Commissioner's approach is insupportable. The search for the legislative intent or purpose in enacting para (c) of the definition of "Australian Soldier" does not involve any question of fact, only a question of construction, ie a question of law. The search for the legislative intent is a search, by the use of orthodox techniques of statutory construction, for the true meaning of the words used by the Parliament, not for the subjective intent of any particular member or group of members of the legislature. See Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 321-322. Even if a comment made in the course of debate by the Minister in December 1918 could properly be used as an aid to interpreting a statutory definition that has been amended many times in the past 75 years or so, the Commissioner thus made a clear error in thinking that he was entitled to examine, as an exercise in fact finding, what the Parliament (or some of its members) subjectively intended when it enacted the requirement of Australian residence in para (c) of the definition of "Australian Soldier" in s 4 the War Service Homes Act in 1918. In addition, the exercise the Commissioner embarked on involved a breach by him of the fundamental constitutional principle that it is not open to a court to go behind the words enacted by the legislature and to inquire into how the enactment came to be made: see Wik Peoples v Queensland at 255-256. Courts other than a court of constitutional review must accept an enactment of the parliament as law; their role is confined to seeking the true meaning of the words parliament has chosen to use and to giving effect to the legislative intent, so ascertained. In this regard, the Commissioner has no greater freedom than a court. On no view of things was the Commissioner entitled to conclude that the relevant legislative intent was something quite different from the intent revealed by the enacted text of the statute.

It is, in any event, highly unlikely that Senator Millen used the term "any Australian" to refer only to persons of Australian national origin ie persons who, as a general rule, were Australian-born: cf Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 at 365. Contrary to the Commissioner's assumption, many tens of thousands of men born outside Australia and who thus were, in all probability, of non-Australian national origin enlisted in the First AIF. A sample of the attestation papers of the entire 417,000 First AIF enlistments indicates that about 18% or 75,000 were British-, as opposed to Australian-born, with a total of about 21% or 87,600 being other than Australian-born. See The Origin and Character of the First AIF, 1914-1918: Some Statistical Evidence, L L Robson, Historical Studies (Oct 1973) pp 737-749. It is highly unlikely that the Minister was unaware of this, at least in a general way: it must then have been a well-known fact that reflected the demographic make-up of the Australian population in 1918, (17% non-Australian-born, according to the 1911 Commonwealth census, 15% non-Australian born, according to the next census taken in 1921). If the Commissioner's understanding of the Minister's comment is correct, the Minister must have used the expression "any Australian" as a term which did not embrace, among others, those many members of the First AIF who were of non-Australian national origin. It is impossible to accept that the Minister had any such thing in mind. His comment is no evidence that he or anyone else intended the war services homes legislation to discriminate in favour of Australian-born service men. I think that the Minister's comment is entirely consistent with his understanding that the legislation would benefit all servicemen who had served the Empire in the War, provided only that they had a sufficient connection with Australia to be regarded in the speech of the day as "Australian", irrespective of their national origins.

Finally, the Commissioner considered that "the right to receive the benefits that arise under the DSH Act come within the economic, social and cultural rights referred to in para (e) of Article 5 of the Convention, particularly those referred to in sub-para (e)(iv), namely, `the right to public health, medical care, social security and social services'".

Although it is well-established, as the Commissioner recognised, that neither s 9(1) nor s 10(1) the RD Act is confined to the rights actually mentioned in Article 5 of the Convention, those sections are nevertheless concerned only with rights fundamental to the individual's existence as a human being. In Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, I reviewed relevant High Court authority and said, at 475:

Section 9(1) [the RD Act] can only apply where a discriminatory act based on national origin also affects `any human right or fundamental freedom'. The Act focuses on protecting from impairment by acts of racial discrimination certain fundamental rights which each individual has; it does not purport to aim at achieving equality of treatment in every respect of individuals of disparate racial and national backgrounds ...

I concluded, at 476-477:

...the rights and freedoms protected by ss 9(1) and 10(1) [the RD Act] do not encompass every right which a person has under the municipal law of the country that has authority over him or every other right which he may claim; rather are those sections limited to protecting those particular rights and freedoms with which the Convention is concerned and those other rights and freedoms which, like those specifically referred to in the Convention, are fundamental to the individual's existence as a human being.

The right which Mr P sought to obtain when he applied for the certificate of entitlement under s 17 the DSH Act was the right to a benefit conferred by the Commonwealth on certain war veterans in recognition of their military service, viz, the right to a contribution by the Commonwealth, calculated in accordance with cl 11.9 of the agreement between the Commonwealth and Westpac Banking Corporation, to the interest payable by Mr P, if Westpac were to approve, pursuant to cl 7.3 of the agreement, the application for a loan which it can be anticipated Mr P would have made to the Bank if he had obtained the certificate of entitlement. In my opinion, such a right cannot be characterised as a right of the kind which is the concern of s 9 and s 10 the RD Act.

First, war veterans' benefits are conferred by the state in recognition of the veteran's service in defence of the state's existence and of its other national interests, in conflicts between that state and other nation states. In my opinion, rights to such benefits, which are confined to those persons who have served the interests of one nation against the interests of other nations, stand outside the range of universal human rights, ie, rights to which all persons are entitled equally with every one else irrespective of their national origins and irrespective of the country in which they happen to live when those rights are asserted. It is rights of the last mentioned kind that are the sole concern of the Convention and thus of the RD Act.

Secondly, the right claimed by Mr P cannot, in my opinion, be regarded as falling within the kind of right to social security and social services mentioned in para (e)(iv) of Article 5 of the Convention. That provision of the Convention is concerned with the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law, in the enjoyment of, among other things, economic, social and cultural rights, and in particular the right to public health, medical care, social security and social services. The sort of concepts with which this part of Article 5 of the Convention is concerned are, I think, those discussed in the chapter "Social Welfare" in the New Encyclopaedia Britannica, 15th Ed, Vol 27:

The basic concerns of social welfare - poverty, disability and disease, the dependent young and elderly - are as old as society itself ... As societies developed, however, with their patterns of dependence between members, there arose more systematic responses to the factors that rendered individuals, and thus society at large, vulnerable ...

Because perceived needs and the ability to address them determine each society's range of welfare services, there exists no universal vocabulary of social welfare. In some countries a distinction is drawn between `social services,' denoting programs, such as health care and education, that serve the general population, and `welfare services,' denoting aid directed to vulnerable groups, such as the poor, the disabled or the delinquent ... (p 421)

In international usage the term social security has come to mean all collective measures established by legislation to maintain individual or family income or to provide income when some or all sources of income are disrupted or terminated or when exceptionally heavy expenditures have to be incurred (eg, in bringing up children or paying for health care) ...

A report published in 1984, prepared by 10 international experts appointed by the Director of the ILO, set out the ultimate aims of social security.

Its fundamental purpose is to give individuals and families the confidence that their level of living and quality of life will not, in so far as is possible, be greatly eroded by any social or economic eventuality. This involves not just meeting needs as they arise but also preventing risks from arising in the first place, and helping individuals and families to make the best possible adjustment when faced with disabilities and disadvantages which have not been or could not be prevented ...

Approximately 140 countries have some type of social security scheme ...(pp 427-428)

Paragraph 3(iv) of Article 5, in my opinion, deals only with State-provided assistance to alleviate need in the general community and with benefits provided to advance the well-being of the entire community of the kind that many national states now make available to their citizens. The meaning I would give to the expressions "social security and social services" in the Convention Article reflects the limited protective reach of ss 9 and 10 the RD Act. A war veteran's entitlement to a government-subsidised housing loan of the kind provided before by the DSH Act is a right conferred on too narrow a section of the community for reasons unconnected with considerations fundamental to the individual's existence as a human being to qualify as the kind of basic right which alone is the concern of ss 9 and 10 the RD Act.

Nor would I regard the right to the certificate claimed by Mr P as comprehended within the universal right to equality before the law in the enjoyment of economic, social and cultural rights and, in particular, the right to housing that is referred to in Article 5 para (e)(iii) of the Convention, as Mr P contended in the hearing before me. The right claimed is a right to a financial contribution by the Commonwealth to assist in the acquisition of a privately owned home; entitlement to the benefit is not needs-based: see cl 7.3 of the agreement and Schedule "C" to it. Such a right cannot, I think, be regarded as falling within the fundamental human right to housing with which Article 5 of the Convention is concerned.

It follows that, contrary to the Commissioner's suggestion, s 10 the RD Act has no impact on s 17 the DSH Act.

For these reasons, the Commissioner was in error in construing s 9 as applying to the right claimed by Mr P and in stigmatising the refusal to grant him the certificate he sought as unlawful discriminatory conduct. The Commissioner's determination should be set aside, a course justified by the effect which s 25ZF the RD Act gives to the Commissioner's determination.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 11 February 1998

Counsel for the Applicant:	P Keane QC & E Ford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	M Robertson
Solicitor for the Respondent:	Welfare Rights Centre
Date of Hearing:	2 February 1998
Date of Judgment:	11 February 1998