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The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 8 August 2000,
Adopts the following:
Decision on Admissibility
1. The author of the communication is Paul Barbaro. He claims to have been a
victim of racial discrimination by the Australian authorities on the basis
of his Italian origin.
The Facts as Submitted by the Author
2.1 On 25 June 1986, the author obtained temporary employment at the Casino
in Adelaide, South Australia; he initially worked as a bar porter and
subsequently as an attendant. On 16 April 1987, the Liquor Licensing
Commissioner (LLC) of the South Australian Liquor Licensing Commission,
which is responsible for supervising the observance of the rules governing
the management of the Adelaide Casino and must ensure that its operations
are subject to continued scrutiny, withdrew the author's temporary
employment licence and refused to approve his permanent employment with the
Casino. A hearing, during which the LLC questioned the author on a number of
points and discussed his concerns, was held on 30 April 1987.
2.2 In September 1993, well over six years later, the author complained to
the Australian Human Rights and Equal Opportunities Commission (HREOC),
claiming that the decision of the LLC had been unlawful under sections 9 and
15 of Australia's Race Discrimination Act of 1975. He argued, inter alia,
that the LLC had decided against his obtaining a permanent contract because
of his and his family's Italian (Calabrian) origin, since some of his
relatives were allegedly involved in criminal activities, notably
trafficking of illegal drugs, of which he did not know anything. Mr. Barbaro
contends that this attitude effectively restricts the possibilities for
employment of Italians who are not themselves criminals but who may have
relatives that are. In support of his argument, the author refers to letters
of support from Peter Duncan, M.P., who seriously questioned and denounced
this perceived practice of "guilt by association".
2.3 The author refers to similar cases in which the ethnic background of
applicants for employment in licensed casinos was adduced as a reason for
not approving employment. In particular, he refers to the case of Carmine
Alvaro, decided by the Supreme Court of South Australia in December 1986,
who was refused permanent employment because of his family's involvement in
the cultivation and sale of illegal drugs. In this case, the LLC had stated
that he had been advised by the police that they had received information
that one of the drug families in the area would attempt to place a "plant"
at the Casino.
2.4 HREOC forwarded the author's complaint to the South Australian
Attorney-General's Department for comments. The latter informed HREOC that
the "sole reason for refusing [the author's] employment was to ensure the
integrity of the Adelaide Casino and public confidence in that institution".
Reference was made in this context to a report from the Commissioner of
Police, which stated:
"Paul Barbaro has no convictions in this state. He is a member of a broad
family group which, in my opinion, can only be described as a major
organized crime group ... Eighteen members of this group have been convicted
of major drug offences ... The offences are spread across four states of
Australia. All are of Italian extraction. All are related by marriage or
direct blood lines."
2.5 There were some discrepancies between the author's and the LLC's
assertions in respect of the degree of some of the relationships, in
particular the relationships established by the marriages of the author's
siblings. The author emphasized that he had maintained a certain autonomy
from his relatives and that he did not know personally many of the people
listed in the Police Commissioner's report. He also insisted that he knew
nothing of his relatives' previous drug-related offences.
2.6 On 30 November 1994, the Racial Discrimination Commissioner of HREOC
rejected the author's claims concerning his unlawful dismissal, having
determined that it was the author's perceived or actual relationships with
individuals who have criminal records, and not his Italian ethnic origin,
which was the basis for the LLC's decision. The Race Discrimination
Commissioner stated that "[T]he fact that [he] and [his] family members are
of Italian origin or descent is not germane" to the resolution of the case.
2.7 On 7 December 1994, the author appealed for review of the Racial
Discrimination Commissioner's decision. By decision of 21 March 1995, the
President of HREOC confirmed the decision of the Racial Discrimination
Commissioner, holding that there was no evidence that the author's ethnic
background had been a factor in the LLC's decision.
The Complaint
3. Although the author does not invoke any provision of the Convention, it
transpires from his communication that he claims a violation by the State
party of articles 1, paragraph 1, and 5 (a) and (e) (i) of the Convention.
State Party's Submission on the Admissibility of the Communication and
Author's Comments Thereon
4.1 By submission of March 1996, the State party challenges the
admissibility of the communication on several grounds. It first supplements
the facts as presented by the author. Thus, the State party notes that when
obtaining temporary employment in 1986, the author gave the Police
Commissioner for South Australia written authorization to release to the LLC
particulars of all convictions and other information that the Police
Department may have had on him. On 25 June 1986, Mr. Barbaro acknowledged in
writing that the granting of temporary employment was subject to all
enquiries made concerning his application for approval as a Casino employee
being concluded to the satisfaction of the LLC, and that temporary approval
could be withdrawn at any time.
4.2 On 30 April 1987, the author, accompanied by his lawyer and two
character witnesses, attended a hearing before the LLC, during which the LLC
explained his concern that the author had an association with an organized
crime group. The author was given an opportunity to comment on the evidence
which had been provided to the LLC by the Police Commissioner.
4.3 In relation to the author's complaint before HREOC, the State party
notes that after the dismissal of Mr. Barbaro's complaint by the Race
Discrimination Commissioner, the author gave notice of appeal to have the
decision reviewed under section 24AA 9(1) of the Race Discrimination Act
(RDA), the President of HREOC, Sir Ronald Wilson, a former High Court judge,
confirmed the decision in accordance with section 24AA 2(b)(I) of the RDA,
holding that there was no evidence that the author's ethnic origin
constituted a ground for the alleged discrimination.
4.4 The State party contends that the case is inadmissible as incompatible
with the provisions of the Convention, on the basis of rule 91 (c) of the
Committee's rules of procedure, as the Committee is said to lack the
competence to deal with the communication. In this context, the State party
affirms that Australian law and the RDA conform with the provisions of the
Convention. The RDA was enacted by the Federal Government and implements
articles 2 and 5 of the Convention by making racial discrimination unlawful
and ensuring equality before the law (sects. 9 and 10). The wording of
section 9 closely follows the wording of the definition of racial
discrimination in article 1 of the Convention. Section 15 of the RDA
implements the provisions of article 5 of the Convention in relation to
employment. Moreover, HREOC is a national authority established in 1986 for
the purpose of receiving and investigating alleged breaches of the RDA.
Members of HREOC are statutory appointees and as such enjoy a high degree of
independence. HREOC investigated the author's case thoroughly and found no
evidence of racial discrimination.
4.5 In the light of the above, the State party argues that it would be
inappropriate for the Committee to effectively review the decision of HREOC.
While it concedes that the issue of whether the decision of HREOC was
arbitrary, amounted to a denial of justice or violated its obligation of
impartiality and independence, would fall within the Committee's
jurisdiction, it contends that the author did not submit any evidence to
this effect. Rather, the evidence contained in the transcript of the hearing
before the LLC and the correspondence with HREOC indicate that the author's
claim was considered within the terms both of the RDA and the Convention.
4.6 The State party further submits that the complaint is inadmissible on
the basis of lack of substantiation, arguing that the author did not provide
any evidence that his treatment amounted to a "distinction, exclusion,
restriction, or preference based on race, colour, descent, or national or
ethnic origin which [had] the purpose or effect of nullifying or impairing
the recognition, enjoyment, or exercise, on an equal footing, of human
rights" (article 1, paragraph 1, of the Convention). There is said to be no
evidence that the author's ethnic or national origin was a factor in the
decision of the LLC to refuse a permanent appointment to the author; rather,
he was concerned to fulfil his duty to ensure that the operations of the
casino were subject to constant scrutiny and to guarantee public confidence
in the casino's lawful operation and management.
4.7 Finally, the State party claims that the author failed to exhaust
available domestic remedies, as required by article 14, paragraph 7 (a), of
the Convention, and that he had two available and effective remedies which
he should have pursued in relation to his allegation of unfair dismissal.
Firstly, it would have been open to the author to challenge the decision of
the President of HREOC in the Federal Court of Australia, pursuant to the
Administrative Decisions (Judicial Review) Act of 1977 (ADJR Act). The State
party emphasizes that the decision of the HREOC President was reviewable
under the ADJR Act: grounds for review are listed in section 5 of the Act;
they include grounds that there is no evidence or other material to justify
the taking of the decision, and that the adoption of the decision was an
improper exercise of power. The State party argues that this review
mechanism is both available and effective within the meaning of the
Committee's admissibility requirements: thus, pursuant to any application
under the ADJR Act, the Court may set aside the impugned decision, refer it
back to the first instance for further consideration subject to directions,
or declare the rights of the parties.
4.8 According to the State party, the author could also have challenged the
LLC's decision in the Supreme Court of South Australia, by seeking judicial
review under rule 98.01 of the South Australian Supreme Court Rules. Under
rule 98.01, the Supreme Court may grant a declaration in the nature of
certiorari or mandamus. Under rule 98.09, the Supreme Court may award
damages on a summons for judicial review. It is submitted that an action for
judicial review pursuant to rule 98 was an available remedy in the instant
case.
4.9 The State party concedes that the author was not obliged to exhaust
local remedies which are ineffective or objectively have no prospect of
success. It refers in this context to the decision of the Full Court of the
Supreme Court of South Australia in the case of R. v. Seckler ex parte
Alvaro ("Alvaro's case"), decided on 23 December 1986. The material facts of
that case were similar to the author's: the respondent was the LLC of South
Australia, the same person as in the author's case, and the matter at issue
was the respondent's refusal to approve the plaintiff's employment. By
majority, the Supreme Court of South Australia held that the plaintiff was
not entitled to relief. In the State party's opinion, the judicial precedent
provided by the decision in Alvaro's case did not excuse the author from
exhausting the remedy available by way of judicial review; it adds that
"unlike an established legal doctrine, a single majority judgement in a
relatively new area of law does not meet the test of obvious futility
required in order to countenance non-exhaustion of an available remedy".
4.10 Still in the same context, the State party rejects as too broad an
interpretation the argument that exhaustion of domestic remedies cannot be
required if the remedies available probably would not result in a favorable
outcome. Therefore, judicial review under rule 98 of the Supreme Court Rules
is said to be both an available and an effective remedy, to which the author
did not resort. The State party notes that the author did not file his claim
within the six months of the grounds for review first arising (7 November
1987), as is required under rule 98.06 of the Supreme Court Rules. Thus,
pursuit of this remedy is now impossible because of the expiration of
statutory deadlines; the State party observes that failure to pursue such
remedy in a timely manner must be attributed to the author. Reference is
made to the jurisprudence of the Human Rights Committee.
5.1 In comments dated 28 April 1996, the author rebuts the State party's
arguments and dismisses them as irrelevant to the resolution of his case. He
questions the credibility of the State party's arguments in the light of the
letters of support he received from a Member of Parliament, Mr. Peter
Duncan.
5.2 In the author's opinion, the Committee does have competence to deal with
the merits of his claims. He contends that HREOC did not examine his
complaint with the requisite procedural fairness. In this context, he notes,
without giving further explanations, that the RDA allows complainants to
attend a hearing at some designated location to present arguments in support
of the complaint, and that this did not occur in his case. The result, he
surmises, led to an uninformed decision by HREOC which was not compatible
with the provisions of the Convention.
5.3 The author notes that the President of HREOC, Sir Ronald Wilson, who
dismissed his claim on 21 March 1995, had been a judge in the Supreme Court
of South Australia when the decision in Alvaro's case was handed down in
December 1986. He now argues that there was a conflict of interest on the
part of the President of HREOC, who had determined the merits of a factually
comparable case in the Supreme Court of South Australia before dealing with
the author's own case. In the circumstances, the author argues that the
HREOC decision was tainted by bias and arbitrariness and that the Committee
has competence to deal with his case.
5.4 The author reiterates that there is sufficient evidence to show that his
case falls prima facie within the scope of application of article 1,
paragraph 1, of the Convention. He argues that "[a]s with normal practices
of institutionalized racism a clear and precise reason [for termination of
employment] was not given nor required to be given". He further contends
that it is difficult to see how the acts of State agents in his case did not
amount to a "distinction" within the meaning of the Convention, given the
terms of the Police Commissioner's report to the LLC in 1987, in which it
was explicitly stated that the author was "a member of a broad family group
... All are of Italian extraction". From this reasoning, the author asserts,
it is clear that individuals with his background are precluded from enjoying
or exercising their rights on an equal footing with other members of the
community. He also refers to a judgement in the case of Mandala and Anor v.
Dowell Lee, ((1983) All ER, 1062), in which it was held that blatant and
obviously discriminatory statements are generally not required when
investigating instances of race distinctions, since direct evidence of
racial bias is often disguised.
5.5 As to the requirement of exhaustion of domestic remedies, the author
observes that the decision handed down by the President of HREOC on 21 March
1995 and transmitted to him on 24 March 1995 failed to mention any possible
further remedies. He notes that the RDA itself is silent on the possibility
of judicial review by the Federal Court of Australia of decisions adopted by
the President of HREOC.
5.6 Finally, the author contends that the possibility of judicial review of
the decision of the LLC to refuse him permanent employment under the rules
of the Supreme Court of South Australia is not realistically open to him. He
argues that the judgement of the Supreme Court of South Australia in
Alvaro's case constitutes a relevant precedent for the determination of his
own case, all the more so since the State party itself acknowledges that
Alvaro's case presented many similarities to the author's. If, in addition,
the fact that the President of HREOC who dismissed the author's appeal had
previously been involved in the determination of Alvaro's case is taken into
consideration, the author adds, then the possibility of challenging his
decision before the Supreme Court successfully was remote.
6.1 By further submission of 22 July 1996, the State party in turn dismisses
as partial or incorrect several of the author's comments. It notes that the
author was partial in choosing quotes from the Police Commissioner's report
and that the complete quotes indicate that the operative factor in the LLC's
decision concerning Mr. Barbaro's suitability for casino employment was his
association with 18 members of his family who had been convicted of major
drug-related offences. Ethnicity was only raised by the Police Commissioner
as one factor, combined with others such as family association and the type
of offences; the author's ethnic background was relevant only insofar as it
assisted in defining this cluster of associations.
6.2 The State party concedes that in Australian employment practice,
associates of applicants for employment are generally not considered a
relevant factor in the determination of suitability for employment. In the
instant case, it was relevant because the LLC was not an employer but a
statutory officer. His statutory role was to ensure the constant scrutiny of
casino operations, a role recognized by the Supreme Court of South Australia
in Alvaro's case. In short, the LLC was entrusted with maintenance of the
internal and external integrity of the casino. Like an employer, however, he
was subject to the provisions of the RDA of 1975; in the instant case, the
State party reiterates that the fact that there were drug offenders in the
author's extended family was a proper justification for the LLC's decision.
6.3 The State party agrees in principle with the author's assertion that
obvious and blatant expressions of racial discrimination are not required
when investigating instances of race distinctions. It notes in this context
that prohibition of indirectly discriminatory acts or unintentionally
discriminatory acts is an established principle of Australian law. However,
the State party re-emphasizes that decisions in Mr. Barbaro's case rested on
grounds other than race, colour, descent or national or ethnic origin.
6.4 The State party contends that the author's comments raise new
allegations about the fairness of the procedures before HREOC, especially as
regards his claim that he was denied due process since he was not afforded
an opportunity to attend a hearing to present his complaint. The State party
argues that the author did not exhaust domestic remedies in this respect and
that he could have filed an application for judicial review of this
allegation under the ADJR. In any event, the State party continues,
procedural fairness did not require the personal attendance of Mr. Barbaro
to present his complaint. In the case of HREOC, the grounds for dismissing
complaints prior to conciliation are set out in section 24 (2) of the RDA.
They are:
(a) If the Race Discrimination Commissioner is satisfied that the
discriminatory act is not unlawful by reason of a provision of the RDA;
(b) If the Commissioner is of the opinion that the aggrieved person does not
desire that the inquiry be made or continued;
(c) If the complaint has been made to the Commission in relation to an act
which occurred more than 12 months prior to the filing of the claim;
(d) If the Commissioner is of the opinion that the complaint under
consideration is frivolous, vexatious, misconceived or lacking in substance.
In the author's case, the President of HREOC dismissed the complaint on the
basis of section 24 (2) (d) of the RDA.
6.5 The State party dismisses as totally unfounded the author's argument
that the HREOC decision was biased because of an alleged conflict of
interest on the part of the President of HREOC. The State party points to
the long-standing involvement of the President of HREOC in the legal
profession and adds that it is indeed likely that someone with his profile
and background will consider at different times issues which are related in
law or in fact. The State party emphasizes that a previous encounter with a
similar (factual or legal) issue does not result in a conflict of interest.
Further evidence of bias is required, which the author has patently failed
to provide.
6.6 As to Mr. Barbaro's contention that he was not informed of the
availability of domestic remedies after the HREOC decision of 21 March 1995,
the State party notes that neither the Convention nor the Australian RDA of
1975 impose an obligation to indicate all available appellate mechanisms to
a complainant.
6.7 Finally, concerning the letters of support sent to HREOC on the author's
behalf by a Member of Parliament, Mr. Peter Duncan, formerly a parliamentary
secretary to the Attorney-General, the State party recalls that Federal
Parliamentarians frequently write to HREOC on behalf of their constituents,
advocating the rights of their constituents in their role as democratically
elected representatives. The State party contends that this role must be
distinguished from both the investigative role of the independent HREOC and
the executive role of the parliamentary secretary to the Attorney-General.
In the instant case, it was clear that the M. P. acted on the author's
behalf in his representative role. More importantly, the purpose of the
letters was to urge a thorough investigation of the author's complaints by
HREOC. Once a final decision in the case had been taken, Mr. Duncan did not
write again.
7. During its forty-ninth session, in August 1996, the Committee considered
the communication but concluded that further information from the State
party was required before an informed decision on admissibility could be
adopted. Accordingly, the State party was requested to clarify:
(a) Whether the author would have had the opportunity, in the event that
complaints under the Administrative Decisions (Judicial Review) Act and
pursuant to rule 98.01 of the Rules of the Supreme Court of South Australia
had been dismissed, to appeal further to the Federal Court of Australia, or
whether he could have complained directly to the Federal Court of Australia;
(b) Whether the State party consistently does, or does not, inform
individuals in the author's situation of the availability of judicial
remedies in their cases.
8.1 In reply, the State party notes that Mr. Barbaro would have had the
opportunity to appeal to the Federal Court of Australia and subsequently the
High Court of Australia in the event that a complaint under the ADJR Act had
been dismissed. Under section 8, the Federal Court of Australia has
jurisdiction to hear applications under the ADJR Act; applications may be
filed in respect of decisions to which the Act applies, and decisions of the
President of the HREOC fall within the definition of "decision(s) to which
this Act applies" (sect. 3 (1)). The author thus had the right to seek
judicial review of the President's decision before a single judge of the
Federal Court of Australia on any of the grounds listed in section 5 of the
ADJR Act relevant to his case, within 28 days of the decision of the HREOC
President. If an application before a single Federal Court judge had been
unsuccessful, the author would have had the right to seek leave to appeal to
the full Federal Court.
8.2 If unsuccessful in the full Federal Court of Australia application, the
author would have been further entitled to seek special leave to appeal to
the High Court of Australia under Order 69A of the High Court Rules;
criteria for granting special leave to appeal are listed in section 35A of
the federal Judiciary Act 1903. If special leave to appeal were granted, a
three-week period from the granting of special leave to appeal would apply
for the filing of the notice of appeal.
8.3 The State party further notes that the author would have had an
opportunity to appeal to the full court of the Supreme Court of South
Australia and thereafter the High Court of Australia if a complaint under
rule 98.01 of the Rules of the Supreme Court of South Australia had been
dismissed by a single judge (section 50 of the Supreme Court Act, 1935
(South Australia)). Mr. Barbaro would have had to lodge an appeal within 14
days of the single judge's decision. If an appeal to the full court of South
Australia had been unsuccessful, Mr. Barbaro could have sought special leave
from the High Court of Australia to appeal against the decision of the full
court of the Supreme Court of South Australia pursuant to section 35 of the
Federal Judiciary Act, 1903.
8.4 The State party reiterates that the Convention does not impose an
obligation to indicate all available appeal mechanisms to a complainant.
There is no statutory obligation to provide individuals with information
about possible judicial remedies under federal or South Australian law; nor
is it the practice of the federal Government or the Government of South
Australia to advise individuals about possible appeal rights. There are,
however, some obligations to inform individuals of their appeal rights:
thus, under the federal Race Discrimination Act, 1975, where the Race
Discrimination Commissioner decides not to enquire into an action in respect
of which a complaint was filed, he or she must inform the complainant of the
ratio decidendi for that decision and of the complainant's rights to have
this decision reviewed by the HREOC President (sect. 24 (3)). In Mr.
Barbaro's case, this obligation was met. It is, moreover, the practice of
HREOC to advise verbally any complainant who has manifested a desire to
challenge a decision of the Commission's president of other avenues of
appeal. There is no evidence that HREOC deviated from this practice in the
author's case.
8.5 The State party notes that Mr. Barbaro does not appear to have sought
legal advice on appeals and remedies available to him; it adds that it is
common knowledge that a system of publicly funded legal aid exists in
Australia, as well as a national network of community legal centres,
including in South Australia. Both legal aid and community legal centres
would have provided free legal advice about possible appeal mechanisms to
individuals in the author's situation. Mr. Barbaro's failure to avail
himself of such free legal advice cannot be attributed to the State party;
reference is made to the Committee's jurisprudence that it is the author's
own responsibility to exhaust domestic remedies. [FN1]
---------------------------------------------------------------------------------------------------------------------[FN1]
See decision on communication No. 5/1994 (C.P. and his son v. Denmark) in
Official Records of the General Assembly, Fiftieth Session, Supplement No.
18 (A/50/18), annex VIII, para 6.2.
---------------------------------------------------------------------------------------------------------------------
9.1 In his comments, the author concedes that the Race Discrimination
Commissioner informed him of his right of review of her decision under
section 24AA (1) of the Race Discrimination Act. He submits, however, that
the President of HREOC did not inform him of the possibilities of any
avenues of appeal against his decision, communicated to the author on 24
March 1995; he contends that the HREOC President, a former High Court judge,
should have informed him of possible remedies. Mr. Barbaro adds that, as a
layman, he could not have been aware of any other possible judicial remedies
against the decision of the HREOC President.
9.2 The author reaffirms that an application to the Supreme Court of South
Australia under rule 98.01 of the Court's rules would have been futile,
given the Supreme Court's earlier judgement in the Alvaro case.
9.3 Finally, with regard to the State party's reference to the availability
of legal advice from community legal centres, Mr. Barbaro submits that "such
assistance is only available in extreme situations and ... only if the
matter involves an indictable offence".
Committee's Decision on Admissibility of 14 August 1997
10.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must decide, pursuant
to article 14, paragraph 7 (a), of the Convention, whether or not the case
is admissible.
10.2 The Committee considered the question of admissibility of the present
communication at its fifty-first session, in August 1997. It noted the State
party's argument that the author's claims were inadmissible on the basis of
failure to substantiate the racially discriminatory nature of the decision
taken by the LLC in May 1987. It found, however, that the author had made
specific allegations, notably insofar as they related to passages in the
report of the Police Commissioner of South Australia which had been made
available to the LLC, to support his contention that his national and/or
ethnic background influenced the decision of the LLC. It therefore concluded
that the author had sufficiently substantiated, for purposes of
admissibility, his claims under article 5 (a) and (e) (i), read together
with article 1, paragraph 1, of the Convention.
10.3 The Committee also noted the State party's claim that the author had
failed to exhaust domestic remedies which were both available and effective,
since he could have challenged the decision of the President of HREOC under
the Administrative Decisions (Judicial Review) Act, and the decision of the
LLC pursuant to rule 98.01 of the rules of the Supreme Court of South
Australia. To such claims the author had replied that he had not been
informed of the availability of those remedies, and that the precedent
established by the judgement in Alvaro's case would have made an appeal to
the Supreme Court of South Australia futile.
10.4 The Committee considered that it would have been incumbent upon the
author's legal representative to inform him of possible avenues of appeal.
The fact that he was not informed of potential judicial remedies by the
judicial authorities of South Australia did not absolve him from seeking to
pursue avenues of judicial redress; nor could the impossibility to do so at
the time of the Committee's decision, after expiration of statutory
deadlines for the filing of appeals, be attributed to the State party. The
Committee further considered that the judgement of the Supreme Court of
South Australia in Alvaro's case was not necessarily dispositive of the
author's own case. Firstly, the judgement in Alvaro's case was a majority
and not a unanimous judgement. Secondly, the judgement was delivered in
respect of legal issues which were, as the State party pointed out, largely
uncharted. In the circumstances, the existence of one judgement, albeit on
issues similar to those in the author's case, did not absolve Mr. Barbaro
from attempting to avail himself of the remedy under rule 98.01 of the
Supreme Court rules. Finally, even if that recourse had failed, it would
have been open to the author to appeal to Federal Court instances.
11. In the circumstances, the Committee concluded that the author had failed
to meet the requirements of article 14, paragraph 7 (a), of the Convention
and decided that the communication was inadmissible. [FN2]
---------------------------------------------------------------------------------------------------------------------[FN2]
CERD/C/51/D/7/1995.
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New Submission from the Author
12.1 In a submission dated 28 November 1998 the author informs the Committee
that following its findings of August 1997, he began proceedings in the
Federal Court challenging the decision dated 21 March 1995 of the President
of HREOC. He states that the recourse to the Federal Court was the only
mechanism available. The Supreme Court could not be used for two reasons:
the precedent established by Alvaro's case and its lack of jurisdiction to
hear complaints of racial discrimination.
12.2 Justice O'Loughlin of the Federal Court heard the complaint on 14 May
1998 and delivered his decision on 29 May 1998. Justice O'Loughlin found
that although he would have excused the delay in its submission the
complaint had no reasonable prospects of success, inter alia, because racial
discrimination could not be proved regardless of all the material at his
disposal. On 19 June 1998 this decision was confirmed on appeal by the full
Federal Court.
12.3 The author submits that his next legal move would be to challenge the
full Court's decision. To do that he has first to be granted special leave
to appeal to the High Court. However, for a matter to be heard by the High
Court stringent tests must be met. For instance, it has to be established
that there was an error of law. In cases of errors of fact, which this case
apparently falls under, special leave to appeal will not be granted. In view
of the fact that four Federal Court justices reached the same conclusion it
would be futile to proceed any further. In its submission to the Committee
the State party itself has conceded that one is not obliged to exhaust local
remedies which are ineffective or objectively have no prospect of success.
Observations of the State Party
13.1 In a submission dated August 1999 the State party challenges the
author's claims to have exhausted domestic remedies. The State party
maintains its submission that if the author were unsuccessful in his appeal
to the full Federal Court he had the further right to seek special leave to
appeal to the High Court under order 69A of the High Court rules. Special
leave to appeal to the High Court is both an available and effective remedy
within the meaning of article 14, paragraph 7 (a) and the general principles
of international law. There was and is now no formal bar to the author
pursuing this avenue. Although the author is out of time for instituting his
application, it is also possible to seek an extension of time for special
leave to appeal.
13.2 The State party contends that an individual is not absolved from
pursuing all domestic remedies to finality on the grounds that he has been
unsuccessful in previous appeals and predicts that he may be unsuccessful
before a higher court unless there is recent, relevant and conclusive
precedent on the issue. It recalls that in its decision in D.S. v. Sweden,
communication No. 9/1997, the author contended before the Committee that
there was no real possibility of obtaining redress through the Ombudsman or
in a district court because of her lack of success on previous occasions.
However, the Committee concluded that "notwithstanding the reservations that
the author might have ... it was incumbent upon her to pursue the remedies
available, including a complaint before a district court. Mere doubts about
the effectiveness of such remedies or the belief that the resort to them may
incur costs, do not absolve a complainant from pursuing them".
13.3 With respect to the author's claim that an action for judicial review
of the decision of the LLC is not an available remedy, the State party
refers the Committee to its previous admissibility decision in which the
Committee held that the author had failed to exhaust domestic remedies on
the grounds that he did not pursue review of the decision of the LLC
pursuant to rule 98.01 of the rules of the Supreme Court of South Australia.
[FN3] The State party contends that on this point the author seeks to
challenge the Committee's decision and reopen the issue by arguing new
grounds to support his claim to be absolved from pursuing judicial review in
the Supreme Court.
---------------------------------------------------------------------------------------------------------------------[FN3]
Paragraph 10.4 above.
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13.4 The State party submits that repetitive submissions on a point already
decided upon by the Committee may amount to an abuse of the right of
petition under rule 91 (d) of the Committee's rules of procedure.
Alternatively, the State party contests the author's claim and maintains its
submission that he could have sued the LLC in the Supreme Court and has
therefore failed to exhaust domestic remedies. An action for common law
judicial review could have been brought in the Supreme Court of South
Australia in two ways. First, the author could have sought a remedy under
rule 98 of the Supreme Court's rules to have the Commissioner's decision
quashed for legal error (certiorari), or declared void. Second, as an
alternative, a declaration of invalidity could have been sought by the
author outside rule 98. The possibility of a rule 98 application remains
open even now, although leave of the Court is required. The alternative
action of a declaration outside rule 98 could be pursued even now and does
not require leave. Had the author been unsuccessful in judicial review
proceedings pursuant to rule 98, he would have been entitled to appeal to
the full court of the Supreme Court within 14 days. Furthermore, the author
could have sought special leave from the High Court of Australia to appeal
against the decision of the full court.
13.5 As to the author's assertion that the Supreme Court does not have
jurisdiction to deal with issues of racial discrimination, the State party
maintains that the LLC cannot lawfully exercise his discretion to refuse to
approve employment on racial grounds. The court would either quash such a
decision or declare it void. Therefore, judicial review of the decision of
the LLC constitutes an effective remedy within the meaning of article 14,
paragraph 7 (a). As for the precedent of Alvaro's case, the State party
states that the court in that case did not decide that the Commissioner was
immune to judicial review if he acts on racially discriminatory grounds when
deciding not to grant approval of employment. The complainant had claimed
that he was not given a fair hearing before approval was refused and the
court merely held that a hearing did not have to be accorded to a person
before the LLC refused approval. Racial discrimination was not alleged in
that case. Furthermore, the court in Alvaro's case indicated that the LLC
would be in breach of his duty if he refused approval for employment for
improper considerations.
13.6 In addition to its argument regarding lack of exhaustion of domestic
remedies the State party submits that the communication should be declared
inadmissible on the ground that it is incompatible with the provisions of
the Convention under rule 91 (c) of the Committee's rules of procedure. This
submission is made on the grounds that the author is in fact requesting the
Committee to review the HREOC decision that the evidence did not disclose
racial discrimination, which would amount to review of the lawful exercise
of the HREOC discretion not to investigate the claim. The State party
understands the Committee may determine whether the laws or actions raise
issues concerning, or interfere with, rights protected under the Convention.
However, the Committee should be reluctant to go against the decision of an
independent national body competent to deal with claims of racial
discrimination when that body has assessed the evidence and made its
determination according to domestic law which is directed to the
implementation of the Convention. In this respect the State party quotes
decisions of the Human Rights Committee in which the latter has stated inter
alia that it is not within its powers or functions to evaluate the evidence
in a case unless it can be ascertained that the court's decision was
arbitrary or amounted to a denial of justice or that the judge otherwise
violated his obligation of independence and impartiality. If the author had
alleged that the HREOC decision was tainted by arbitrariness or amounted to
a denial of justice, or violated its obligation of independence an
impartiality, such a matter would fall within the jurisdiction of the
Committee. However, the author has made no such allegation and submitted no
evidence to that effect.
Author's Comments
14.1 In comments dated 25 October 1999 the author rebuts the State party's
arguments. Regarding the special leave to appeal the full Federal Court's
decision the author cites a decision (Morris v. R, 1987) which, in his
opinion, supports his claim regarding the court's reluctance to grant
special leave in a case like his. The court said, for instance, that "since
the number of cases with which the court can properly deal in any one year
is limited, it is inevitable that a careful choice must be made having
regard to the duty, which the court has, to develop and clarify the law and
to maintain procedural regularity in the courts below. The court must
necessarily place greater emphasis upon its public role in the evolution of
the law than upon the private rights of the litigants before it".
Furthermore, in the Alvaro case the High Court refused to grant the
applicant special leave to appeal. According to the author, the State
party's submission regarding High Court availability, effectiveness and
prospect of success is without foundation in the light of this precedent.
The author also claims that during the previous proceedings at the High
Court the State of South Australia requested that his case be summarily
dismissed on the basis that he was unable to provide costs security. As any
further court action would only exacerbate the costs situation there is no
doubt that the State of South Australia would once again use this tactic.
14.2 With regard to the possibility of filing an application with the
Supreme Court of South Australia the author persists with the arguments
already put forward. He reiterates, in particular, that the Supreme Court is
not the jurisdiction to remedy the racial discrimination to which he was
subjected, in view of the fact that it has no authority to determine cases
where breaches of Commonwealth racial discrimination law is alleged, either
within or outside rule 98. The lack of jurisdiction is linked, in
particular, to the fact that the LLC act was a case of "indirect
discrimination". Indirect discrimination occurs when a rule, practice or
policy which appears to be neutral has a disproportionate impact on the
group of which the complainant is a member. The State party falls into error
when it relies on the assumption that had the LLC acted dishonestly or with
bias or capriciousness the Supreme Court would be an effective avenue of
redress.
Issues and Proceedings Before the Committee
15.1 At its fifty-seventh session, in August 2000, the Committee considered
again the question of admissibility of the communication in the light of the
new information provided by the parties and in accordance with rule 93,
paragraph 2 of the Committee's rules of procedure. Under that provision a
decision taken by the Committee, in conformity with article 14, paragraph 7
(a), that a communication is inadmissible, may be reviewed at a later date
upon written request by the petitioner concerned. Such written request shall
contain documentary evidence to the effect that the reasons for
inadmissibility referred to in article 14, paragraph 7 (a), are no longer
applicable.
15.2 The Committee notes that the author appealed to the Federal Court but
not to the High Court. In view of all the information at its disposal, the
Committee considers that notwithstanding the reservations that the author
might have regarding the effectiveness of such an appeal, it was incumbent
upon him to pursue all remedies available.
15.3 In the light of the above, the Committee considers that the author has
failed to meet the requirements of article 14, paragraph 7 (a), of the
Convention.
16. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party and the
author of the communication.
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