Discrimination against deceased persons possible

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Discrimination against deceased persons possible

An attempt by the Commonwealth to block an action based on discrimination failed when the Federal Court found that the suicide of a young cadet following her enforced resignation from the Tasmanian Squadron Air Training Corps did not mean that an anti-discrimination action could not be pursued because the alleged victim was no longer living

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An attempt by the Commonwealth to block an action based on discrimination failed when the Federal Court found that the suicide of a young cadet following her enforced resignation from the Tasmanian Squadron Air Training Corps did not mean that an anti-discrimination action could not be pursued because the alleged victim was no longer living. In essence, the cadet's mother claimed that her daughter was treated less fairly than would have been the case with an older, male person.

In summary, the Federal Court found: the Anti-Discrimination Act (Tas) applies to the Commonwealth and its agents; the Act authorises complaints where the person discriminated against has died; Ms Campbell [mother] had an arguable complaint in her own right of discrimination contrary to the Act; in conferring on the Anti-Discrimination Tribunal jurisdiction to adjudicate complaints against the Commonwealth the Act does not breach Ch III of the Constitution; the Act is not inconsistent with the Air Force Act or the Cadet Forces Regulations within the meaning of s 109 of the Constitution; and the Act does not impair the capacities of the Commonwealth Executive.

Background

On 27 November 2000 Eleanor Tibble, aged 15, committed suicide. Eleanor’s mother, the second respondent Ms Susan Campbell, has made complaints under the Anti-Discrimination Act 1998 (Tas) alleging discrimination against Eleanor and herself. Ms Campbell says Eleanor’s suicide arose out of her enforced resignation from the Tasmanian Squadron Air Training Corps. In essence, Ms Campbell claimed that Eleanor was treated less fairly than would have been the case with an older, male person.

Ms Campbell’s complaints were accepted by the Tasmanian Anti-Discrimination Tribunal. The Commonwealth and the second applicant, Mr Glen Kowalik, sought to have the proceedings before the Tribunal terminated.

Decision of Federal Court

The Court found that by virtue of s4 of the Anti-Discrimination Ct 1998 (Tas), Parliament intended to bind the Crown in capacities other than in the right of Tasmania, those capacities must include the Crown’s capacity in the right of the Commonwealth. Subject to constitutional issues, the Anti-Discrimination Act binds the Commonwealth. It necessarily followed that agents of the Commonwealth are bound.

The Court concluded that Ms Campbell could bring her complaint notwithstanding that it related to discrimination against a person who had died. Indeed, so much more should this be the case when the complaint was that there was a direct connection between the discrimination and the death. Ms Campbell’s claim in her own right was maintainable.

Heerey J concluded that the Tribunal was a court of the State of Tasmania for the purposes of receipt of federal jurisdiction.

No clash of laws

Further, the Court said that if the present case were concerned with a complaint under the Anti-Discrimination Act about the discharge of a cadet under reg 14 (2) (a), (b) or (c) it might be said that there was a direct collision between State and Commonwealth law. However, Ms Campbell’s case was not directed at any exercise of the power of discharge. It did not trespass on that confined area of Commonwealth statutory power. By stipulating the grounds on which, and the procedure by which, cadets may be discharged the Commonwealth did not evince an intention to exclude generally the operation of a Tasmanian law outlawing discriminatory conduct in the areas of activity specified in s 22(1), and particularly education and training.

State legislation cannot modify the nature of the executive power vested in the Crown in the right of the Commonwealth but it can regulate activities in which the Crown may engage in exercise of those activities.

The present case

The present case was concerned with the application of a Tasmanian statute proscribing discriminatory conduct in that State in various areas of activity, including education and training. It was consistent with similar beneficial legislation in other States and Territories and in the Commonwealth itself (which explicitly leaves open resort to State and Territory legislation: Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 4(1). The executive capacity of the Commonwealth would not be impaired by agents such as Mr Smith being required to conduct themselves in accordance with the Anti-Discrimination Act, along with other Tasmanian laws, as the Manual recognises.

The application was dismissed.

Commonwealth of Australia v Wood [2006] FCA 60 (9 February 2006) – Fed Ct (Heerey J) – 9/2/06.
 
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