Case: Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354
Outcome: cited
Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532) 31 In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows "a person aggrieved" by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 96, The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate. (That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26] - [29] and [51]-[52], they are equally applicable to the scheme as it presently exists.) 45 Sixth, in interpreting "person aggrieved" in this context, it is appropriate to accord a construction that would promote the purpose or object underlying the relevant legislation rather than a construction that would not promote that purpose or object: s 15AA(1) Acts Interpretation Act 1901 (Cth). In light of the scheme created by the interaction of the HREOC Act and the DD Act for the purpose of permitting aggrieved persons to make complaints in relation to unlawful discrimination, it is prima facie appropriate to extend a consideration of the term beyond the purpose of the HREOC Act to include the purpose of the DD Act . This is particularly so given that the unlawful discrimination alleged derives from ss 31 and 32 DD Act . I have already noted observations of the High Court in Re East, ex parte Nguyen [1998] HCA 73 ; 196 CLR 354 as to the intentions of Parliament in relation to the scheme to provide the means by which a person aggrieved by a contravention might obtain a remedy. I also note the objects of the DD Act as stated in s 3 of the Act: The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.