April 2006 page 40
Human Rights: Time limits for unlawful discrimination claims
By JONATHON HUNYOR
Jonathon Hunyor is a senior lawyer at the Human Rights and Equal Opportunity Commission
DO STATE AND TERRITORY statutes of limitation apply to claims of unlawful discrimination brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act)?
If so, when does the clock start ticking? – when an act of discrimination takes place? or when a complaint of discrimination is ‘terminated’ by the President of the Human Rights and Equal Opportunity Commission (HREOC)? And when does the clock stop? – upon making a complaint to HREOC? or upon filing an application in court?
Recent cases have given differing answers to these fundamentally important questions.
Complaint process
Complaints of unlawful discrimination must be made in the first instance to HREOC under s.46P of the HREOC Act.
It is not possible to bypass HREOC and commence proceedings directly in court seeking a remedy for unlawful discrimination.1
There is no strict time limit for bringing a complaint to HREOC, but the President has discretion to terminate a complaint if it is lodged more than 12 months after the alleged unlawful discrimination took place.2 Termination of a complaint on this basis does not, however, prevent a complainant from bringing an unlawful discrimination application to the Federal Court or Federal Magistrates Court. Such an application must be brought within 28 days of termination by the President or such further time as the court concerned allows.3 There is no other limitation period in either the HREOC Act or the individual Acts proscribing unlawful discrimination.
Gama
The applicability of state and territory statutes of limitation to unlawful discrimination proceedings was considered most recently by the Federal Magistrates Court in Gama v Qantas Airways Ltd (Gama).4 The applicant made a complaint of racial and disability discrimination to HREOC in July 2003. The complaint was terminated by HREOC in March 2004, and proceedings were commenced within 28 days before the Federal Magistrates Court in NSW. The application included allegations of discriminatory treatment stretching back before 1998.
It was argued, inter alia, by the respondent that the pre-1998 matters should be excised from the proceedings because they occurred more than six years prior to the commencement of the proceedings in the court and were subject to s.14(1) of the Limitation Act 1969 (NSW) which applied to the proceedings by operation of s.79 of the Judiciary Act 1903 (Cth).
Section 14 of the NSW Actprovides that certain actions are not maintainable if brought after six years “running from the date on which the cause of action first accrues”. The causes of action to which the limitation period applies include “a cause of action founded in tort, including a cause of action for damages for breach of statutory duty” (s.14(1)(b)) and “a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty of forfeiture” (s.14(1)(d)).
Raphael FM was of the view that the proceedings fell within the confines of s.14(1)(b), being “easily included within the definition of an action for damages for breach of statutory duty”.5
His Honour appears to have taken the view that s.14(1)(d) does not apply to discrimination proceedings, as the expression “money recoverable by virtue of an enactment” used there “covers things such as fees or charges imposed by an enactment”. His Honour continued: “The words tend to indicate that the section is referring to monies either already paid out which are due to be returned or sums certain which were due to be paid but were not paid”.
While deciding the matter on another basis,6 Raphael FM concluded that the pre-1998 matters were statute-barred and this would have provided a basis for summarily dismissing those elements of the application. On his Honour’s approach, the clock starts ticking at the time at which an act of discrimination takes place, and a person must commence proceedings in court within six years. It will not, it appears, be sufficient for a person to make a complaint to HREOC within six years.
Baird
A different approach was taken by Dowsett J in Baird v Queensland (Baird),7 a decision not apparently considered by the court in Gama. In that matter, the applicants complained of racial discrimination dating back to 1975. The complaints were made to HREOC in 2002 and 2003. They were terminated by the President in March 2003, and proceedings were commenced in the Federal Court within 28 days.
The court considered the application of the Limitation of Actions Act 1974 (Qld). Dowsett J assumed, without deciding, that s.10(1)(d) of the Qld Act applied to discrimination matters. That section imposes a time limit of “six years from the date on which the cause of action arose” in relation to “an action to recover a sum recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture”. It can be noted that this is in similar in terms to s.14(1)(d) of the NSW Act, considered not to apply in Gama.
Dowsett J went on to consider what is meant by the expression “cause of action”,8 a matter not discussed in Gama. His Honour referred to Sullivan v Oil Company of Australia Ltd,9 which had in turn considered a range of common law authority, to the effect that a “cause of action” is every fact which it would be necessary for the plaintiff to prove in order to support a right to the judgment of the court. Dowsett J noted that HREOC and its President have no power to grant relief under the HREOC Act, such power being vested in the court and deriving from s.46PO. His Honour concluded that “there is no suggestion in the [HREOC Act] that any right to relief existed prior to the termination of the complaint”, and accordingly “a cause of action accrued to each applicant at the time of such termination”.10
The consequence of this approach is that a complaint will only be statute-barred where there is more than six years between the time of the termination by HREOC and the commencement of proceedings in court. Note, however, that the court will still need to be persuaded to grant an extension of time for applications brought after 28 days, in accordance with the HREOC Act.
McBride
In McBride v Victoria,11 McInnis FM considered s.5(1)(d) of the Limitation of Actions Act 1958 (Vic), which, similar to the NSW and Qld legislation, imposes a six-year time limit on actions to recover sums “by virtue of an enactment”. His Honour expressed doubt as to whether the Victorian Act extended to a Commonwealth ‘enactment’ and suggested that the Act “is probably unlikely to apply” to unlawful discrimination proceedings.
Assuming, however, that the Act didapply, Federal Magistrate McInnis noted that “there is only one course open to an applicant claiming unlawful discrimination ... before being permitted to proceed further to a court ... and that is to make a claim with [HREOC]”. His Honour further noted that the ‘trigger’ for the court’s jurisdiction is the termination of a complaint by HREOC.12
This is consistent with the analysis in Baird, although his Honour’s reasons also seem to suggest that it is necessary for an applicant to make a complaint to HREOC within six years of the act of discrimination. Such an approach is not, in my view, the correct one, as the making of a complaint to HREOC differs from (and is preliminary to) the ‘bringing of an action’.
Preferred approach
There are a number of reasons to prefer the approach taken in Baird, the effect of which is to calculate any limitation period from the time of termination by HREOC until the time of lodgement of an application in court.
First, it is consistent with the beneficial purpose of discrimination legislation which is designed to protect people’s human rights. Second, it is consistent with the regime set up by the HREOC Act which provides for its own flexible time limits, as set out above. Third, it ensures that an applicant is not prejudiced by the time taken to investigate and attempt to conciliate their complaint before HREOC.
In the case of Gama, the complaint was before HREOC for a period of eight months. While such a lengthy delay is not typical, in some cases it is unavoidable, and it is contradictory for a complainant to potentially suffer a loss of protection for their rights by being required to participate in a mandatory complaints process while the clock is still ticking.
Endnotes
1. Re East; Ex parte Nguyen (1998) 196 CLR 354; Bropho v Western Australia [2004] FCA 1209.
2. See s.46PH(1)(b).
3. Section 46PO(2). For a detailed consideration of procedural aspects of discrimination complaints including the approach taken by courts in relation to issues such as extensions of time, see the HREOC publication Federal Discrimination Law 2005: http://www.humanrights.gov.au/legal/fed_discrimination_law_05/index.html
4. [2006] FMCA 11.
5. Ibid [6].
6. Namely that the pre-1998 incidents did not form part of the applicant’s original complaint to HREOC: ibid [7]. Such incidents were therefore beyond the permissible scope of the application to the court by virtue of s. 46PO(3) of the HREOC Act.
7. [2005] FCA 1516.
8. Ibid [2].
9. (2002) 2 QdR 94, [41]-[44] (Muir J).
10. [2005] FCA 1516, [9].
11. [2001] FMCA 55.
12. Ibid [12]-[13].
