1. Review the decision of the Respondent that was made to terminate the applicants immediately by reasons of misbehaviour pursuant to sections 41(1) and 46I(1)(a) of the Australian human rights commission act 1986.
2. Review the conduct of the Applicants to identify whether it constitutes the misbehavior ‘by undertaking statutory functions in politically biased manner” pursuant to sections 41(1) and 46I(1)(a) of the Australian human rights commission act 1986
Details of claim
The Applicants are aggrieved by the Respondent`s decision to terminate their positions because:
1. The decision of the Respondent to terminate employment of Applicants violates their rights as government employees pursuant to Australian Human Rights Commission Act 1986
Grounds of application
The grounds of application in relation to the mentioned conduct are the following.
1. Respondent`s conduct contravenes the basic principles of Australian Human Rights Commission Act.
1.1 S10a provides that the Commission carries out its functions with regard for the indivisibility and universality of human rights, as well as the principle that every person is free and equal in dignity and rights.
1.2 S11 enumerates the principle functions of the Commission. S11 (1)(e) provides that the Commission has the power to examine enactments along with the proposed enactments in order to determine whether such acts are inconsistent or contrary to any human right, and to report to the Minister the results of such examination. Furthermore, s46c 1(d) specifies that Commission may examine whether enactments or proposed enactments recognize or protect the human rights of Aboriginal people.
1.3 Respondent`s decision to terminate was essentially based on the unfavorable outcome of statutory examinations conducted by the Applicants. Thus the decision violated the principles on which the Commission functions.
2. Commissions report did not constitute a politically biased misbehavior.
2.1 In making the report, the Commission carried out its statutory functions as described previously.
2.2 Misbehavior as defined in sections 41(1) and 46I(1)(a) refers to improper and unlawful conduct sufficient enough to terminate the employment. The Applicants, on the other hand, acted in accordance with their duties and functions of the Commission: their report cannot be regarded as misbehavior leading to the termination of employment.
3. Respondent acted in bad faith when making a decision to terminate Applicants.
3.1 The report of the Commission was highly critical of the government policy and decisions. It was particularly emphasized that the reinstatement of Racial Discrimination Act 1975 would legitimize government action that constitutes racial discrimination against indigenous Australians.
3.2 The findings of the report led to a significant decrease of public support of government. To mitigate the loss, the Respondent decides to terminate the position of Applicants accusing them of politically biased misbehavior.
3.3 The Respondent used his authority to terminate the Applicants in bad faith with the purpose of protection of the interests of the government and ruling party, rather than for a cause of actual misbehavior as provided in sections 41(1) and 46I(1)(a)
Orders sought
On the basis of grounds of application mentioned above, the Applicants claim for the following relief
1. An order authorizing the Respondent to recover the Applicants, Mr. Freedom and Mr. Justice in their positions as the President of Commission and Aboriginal and Torres Strait Islander Social Justice Commissioner respectively.
2. A declaration recognizing that the report of the Commission does not constitute a politically biased misbehaviour as alleged by the respondent.
Applicant’s address
The Applicant’s address for service is:
Place: [see rule 11.01]
Email:
The Applicant’s address is
Service on the Respondent
It is intended to serve this application on the following Respondents:
Date:
Signed by [Name]
[Insert capacity: Applicant / Lawyer for the Applicant]
[* If more than one applicant or respondent, insert names of the second, third, fourth etc as required in this schedule. Delete schedule if not required.]
Schedule
No. of 20
Federal Court of Australia
District Registry: [State]
Division: [Division]
[*]Applicants
Second Applicant: [Name]
[* etc]
[*]Respondents
Second Respondent: [Name]
[* etc]
Date:
[*delete if inapplicable]
Applicant`s outline of submissions
The Applicants acted within the powers granted to them under the Act.
Australian Human Rights Commission Act was enacted with the purpose of establishing of statutory body specifically investigating the alleged violations of anti-discrimination laws. One of the primary functions of the Commission is to examine government proposed enactments in order to determine whether such acts are inconsistent or contrary to any human right. Based on the examination, the Commission files a report to the Minister describing the results of the examination with appropriate recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that it is not inconsistent with or contrary to any human right. The statute specifically provides that such report is to be filed when the recommendations to amend the enactments relate to rights concerning equal opportunity.
Mr. Justice and Mr. Freedom as the President of Commission and Aboriginal and Torres Strait Islander Social Justice Commissioner respectively supervise the implementation of such functions. In the following case, the Commission in the course of its functions, prepared a report titled A Racist Response which criticized governments attempt to reinstate Racial Discrimination Act alleging that such step would create opportunities for the government to infringe on the rights of indigenous Australians. The following termination of officials was based on the fact of their alleged “misbehaviour” was in “politically biased manner”.
It is clear that the officials acted strictly within the functions set in the statute and their actions did not cross prescribed limits of their authority. Based on their knowledge and expertise, the Commission under the supervision of Applicants prepared a report setting out the drawbacks of the proposed enactment particularly stressing how the enactment may be detrimental to the rights of indigenous Australians. In making this examination and preparing ensuing report with recommendations, the Commission has carried out its essential functions. No provision in the statute indicate that the report and recommendations resulting from the examination of enactment must not criticize the political decisions of the government. On the contrary, the Commission must act as an independent evaluator of the government`s actions and decisions in order to ensure that the latter do not result in infringement of human`s rights.
The Commission is not a political body.
The Applicants` office was terminated for a reason of misbehaviour as provided in sections 41(1) and 46I(1)(a) of the Australian Human Rights Commission Act 1986 (Cth). The misbehaviour was alleged to take place in that the Applicants undertook their statutory functions in “politically biased manner”.
Australian Human Rights Commission is a national human rights institution acting as an administrative body. While the composition of the commission may depend on political will, the body itself does not intend to represent the interests of any political party or movement. The chief purpose of the commission is to protect the human rights and monitor the legislation so that it`s consistent with human rights. Based on the expertise of the members of the commission, they are vested with the responsibility to provide professional analysis of the legislature on its compliance with human rights as well as investigate alleged violation of anti-discrimination laws. It is particularly important that the commissioners are not affected by their political views because it might adversely affect their ability to make unbiased and fair decisions in the course of their work. For this purpose, the commission constantly comprises of legal scholars, law professors, former justices rather than “professional politicians”
Considering that the current members of the commission, including the Applicants, do not have any political background or political affiliation, it is highly unlikely that the recommendations in their report can be in any degree “politically biased”.
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