Case: Re East: Ex Parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354
Outcome: cited
HREOC declined to investigate the applicants' claims. Referring to s 20(2)(c)(iii) of the HREOC Act , the delegate of the President of HREOC stated that "the subject matter of your [the applicants'] complaint has been adequately dealt with". Reference was made to the applicants' extensive litigation history. Relying on s 20(2)(c)(ii) of the HREOC Act , the delegate also held that the applicants' complaint was misconceived. The delegate considered that the doctrine of judicial immunity protected the High Court and Federal Court from the investigation that the applicants sought. Citing Re East: Ex Parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354 (" Nguyen "), the delegate stated that the doctrine extended to "protection from claims brought under Commonwealth anti-discrimination and human rights laws". Additionally, the delegate was of the view that it was "arguable whether or not the human rights provisions in the HREOC Act apply to an act or practice of the Federal Court of Australia and the High Court of Australia in the exercise of its judicial power" due to the separation of powers doctrine. It was the delegate's opinion that HREOC's power to investigate an act or practice of the Commonwealth "is generally limited to the Commonwealth within its executive role." 6 The applicants applied to this Court for judicial review of HREOC's decision to decline to inquire. By order dated 4 December 2006, Sundberg J transferred the proceedings to the Federal Magistrates Court. On 2 March 2006 the second respondent made an application for summary judgment. 7 The Federal Magistrate gave judgment for the second respondent on 18 October 2007, in which he summarily dismissed the application for judicial review. In so doing, the Federal Magistrate briefly set out the background to the action and referred to the previous actions that have been pursued by the applicants. 21 Furthermore, Nguyen supports HREOC's decision to decline to inquire on the basis of an opinion formed under s 20(2)(c)(ii). Nguyen concerned a claim that a State magistrate and the Chief Judge of the County Court of Victoria contravened s 9 of the Racial Discrimination Act 1975 (Cth) by not providing the applicant with a copy of a Community Based Order Breach Report in his first language and by not providing an interpreter. In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ held that there was a fundamental difficulty with "the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act". This was because (at 365-366): [T] here is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity. It was plainly open to HREOC to consider that the principle of judicial immunity prevented it from undertaking the investigation that the applicants sought. There is no suggestion of error in the Federal Magistrate's decision in this regard either. 22 Mr and Mrs Scott cannot satisfy the first limb of the test for leave to appeal. That is, they have been unable to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court. 23 As we have seen, the courts have already given extensive consideration to their claims and have given judgment. The time has come for Mr and Mrs Scott to turn away from their dispute with Centrelink over the Special Benefits payment.