Abblitt v The Anti-Discrimination Commissioner - [2016] TASSC 12

[2016] TASSC 12

COURT: SUPREME COURT OF TASMANIA

CITATION: Abblitt v The Anti-Discrimination Commissioner [2016] TASSC 12

PARTIES:  ABBLITT, Victor John
  ABBLITT, Elizabeth Balindan
  v
  ANTI-DISCRIMINATION COMMISSIONER (THE)
  ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

FILE NO:  1296/2015
DELIVERED ON:  18 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  10 March 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania.
Aust Dig Human Rights [53]

Human Rights – Discrimination – Generally – Specified areas of activity – Discrimination and prohibited conduct not in connection with provision of services or employment.

Anti-Discrimination Act 1998 (Tas), ss3, 16, 17, 22, 63 and 71.
IW v City of Perth (1997) 191 CLR 1; R v Anti-Discrimination Commissioner; Ex parte McDermott (2000) 9 Tas R 332; R v Anti-Discrimination Commissioner; Ex parte McDermott (No 2) [2000] TASSC 180; The Secretary of the Department of Justice and Industrial Relations v The Anti-Discrimination Commissioner (2003) 11 Tas R 324, referred to.
Aust Dig Human Rights [1]

REPRESENTATION:

Counsel:
             Applicant:  T J Ellis SC
             Respondent:  No Appearance
             Attorney-General as Intervenor        M Duvnjak
Solicitors:
             Applicant:  Jonathon Smith Lawyers
             Respondent:  No appearance
             Attorney-General as Intervenor        Solicitor-General

Judgment Number: [2016] TASSC 12
Number of paragraphs: 58

Serial No 12/2016
File No 1296/2015

VICTOR JOHN ABBLITT and ELIZABETH BALINDAN ABBLITT
v THE ANTI-DISCRIMINATION COMMISSIONER

REASONS FOR JUDGMENT PEARCE J

18 March 2016

This application challenges a decision of the Anti-Discrimination Commissioner ("the Commissioner") made on 23 June 2015 to refer a complaint made under the Anti-Discrimination Act 1998 ("the Act") to the Anti-Discrimination Tribunal ("the Tribunal") for inquiry. The application is made under the Judicial Review Act 2000 ("the JR Act") and, in the alternative, for relief in the nature of certiorari setting the Commissioner's decision aside.

The application

The application arises from a complaint made on 11 November 2014 to the Anti-Discrimination Commissioner by Lisa Abblitt against her parents, Victor and Elizabeth Abblitt. This application is made by Mr and Mrs Abblitt. I will refer to them as the applicants and to their daughter as the complainant. She was served with notice of the application but has played no part and did not appear. The Commissioner filed a notice of submission. The Attorney-General has, on behalf of the Crown, intervened in the proceeding pursuant to the JR Act, s 39, and was represented by counsel. I will refer to the complaint in more detail later in these reasons. In substance, however, the complainant asserts that the applicants directly discriminated against her and engaged in offensive and insulting conduct by refusing to sell their farm to her because of her gender and marital status.
The Attorney does not dispute that the decision of the Commissioner to refer the complaint to the Tribunal for inquiry is a decision to which the JR Act applies.

The grounds

The application is made on six grounds:
"a   A breach of the rules of natural justice occurred relating to the making of the decision, namely that the Respondent accepted the complaint for investigation when the time for making the complaint was out of time without giving the Respondents the opportunity to be heard, and further that the Respondent had and read documents supplied by Lisa Abblitt in the course of making the decision without disclosing such documents to the Applicants;
b   The decision was not authorised by the enactment under which it was purported to be made;
c   The making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
d The decision involved errors of law namely in the interpretation and application of sections 3, 17, 23, and 63 of the Anti-Discrimination Act 1998 and in the capacity of the Act to hinder free alienation of ownership of land;
e   There was no evidence or other material to justify the making of the decision; and
f The decision was otherwise contrary to law, there being no complaint of conduct within the areas of activity affected by the Act nor within 12 months of the making of the complaint."

The grounds of the application fall into three categories:
· Grounds (a) and (f), both in part, concern the Commissioner's decision to accept the complaint when at least some of the conduct complained of was more than 12 months before the complaint was made.
· Ground (a) also asserts a breach of rules of natural justice on the part of the Commissioner by reading documents supplied by the complainant without disclosing the documents to the applicants.
· The remaining grounds concern the contention that the asserted discriminatory conduct and improper conduct was conduct to which the Act could not apply because it did not fall within any of the areas of activity specified in the Act, s 22.

The legislation

Before considering the complaint and the decision, it is necessary to consider the terms of the legislation. For simplicity I will confine my observations to the provisions which are relevant to this application.
The Act, s 16, provides that a person must not discriminate against another person on the grounds of any of the attributes specified in subs (2), which it calls "prescribed attributes", two of which are gender and marital status. Discrimination may be direct or indirect: ss 14 and 15. Section 14(2) provides:
"(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic."
Section 22(1) provides:
"22 ¾ (1) Subject to the exceptions and exemptions specified in Part 5, this Act applies to discrimination … against a person engaged in, or undertaking any, activity in connection with any of the following:
(a) employment;
(b) …
(c) provision of facilities, goods and services;
(d) …
(e) …
(f) …
(g) …".
The terms "employment" and "services" are defined in s 3 and I will return to those definitions later in these reasons.
The Act, in Div 2 of Pt 4, also prohibits certain conduct. Section 17 provides that "a person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person" on the basis of certain of the prescribed attributes specified in s 16, including gender and marital status, "in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed".
The Commissioner is appointed under s 5. The Act confers 10 wide-ranging statutory functions with respect to discrimination and prohibited conduct: s 6. They include advising the Minister, promoting acceptable attitudes, consulting and inquiring into discrimination and prohibited conduct, research, publication of guidelines and considering legislation. One of the statutory functions is to investigate and seek to resolve complaints made in relation to discrimination or prohibited conduct: s 6(h). One of the Commissioner's powers is to determine the procedures to be followed in any investigation or complaint resolution: s 7(d). A person who alleges that discrimination or prohibited conduct was directed against them may complain to the Commissioner: s 60(1)(a). A complaint is to be made in writing and signed by the complainant, is to identify the person against whom the alleged discrimination or prohibited conduct was directed and against whom the complaint is made, and set out details of the alleged discrimination or prohibited conduct: s 62(1)(a), (b) and (c). A complaint is to be made within 12 months after the alleged discrimination or prohibited conduct took place: s 63(1). However, the Commissioner may accept a complaint made after the 12-month time limitation has expired if satisfied that it is reasonable to do so: s 63(2). The Commissioner is to decide whether to accept or reject a complaint within 42 days after its receipt: s 63(2).
The Act, s 64, specifies the grounds on which a complaint may be rejected by the Commissioner. One of those grounds is if, in the opinion of the Commissioner, the complaint is trivial, vexatious, misconceived or lacking in substance, or the complaint does not relate to discrimination or prohibited conduct: s 64(1)(a) and (b).
If the Commissioner accepts a complaint, the respondent must be notified, with reasons and a copy of the complaint, all within 10 days: s 67. Once accepted, the Commissioner, or a person authorised by the Commissioner, may investigate a complaint in a manner that is appropriate to the circumstances: s 69. At any stage of the process the Commissioner may attempt to resolve the complaint by conciliation or in any other way: s 74. Section 71 is entitled "Completion of investigation". Its terms assume some importance in the resolution of this application. It provides that on the completion of an investigation the Commissioner is to determine that the complaint:
"(a)is dismissed, on any ground referred to in section 64(1)(a), (b), (c), (d), (f) or (h); or
(b)is to proceed to conciliation; or
(c)is to proceed to an inquiry."
Referrals for inquiry are made under s 78. The Commissioner must refer a complaint for inquiry if the Commissioner believes the complaint cannot be resolved by conciliation, has attempted to resolve the complaint by conciliation but has not been successful, or believes that the nature of the complaint is such that it should be referred for inquiry. The Act gives no guidance about the matters the Commissioner is to consider when deciding whether a complaint is of such a nature that it should be referred for inquiry. However, it is apparent that, if the complaint has not been rejected, and cannot be resolved by conciliation, the only alternative is that it proceed to inquiry.
An inquiry means an inquiry held under Div 4 of Pt 6 of the Act. Inquiries are conducted by the Tribunal. The Tribunal is established under the Act, s 12. The functions of a Tribunal include conducting an inquiry into a complaint: s 12(a). Section 79 requires the Commissioner to provide the Tribunal with a report relating to any complaint that is referred to the Tribunal. In conducting an inquiry the Tribunal has an inquisitorial role. Inquiries are to be conducted with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before the Tribunal permit: s 86(1). A Tribunal may determine a question of law or procedure: s 86(4). It has a broad power to make interim orders at any stage of the inquiry: s 98. It may dismiss a complaint if, after an inquiry, it finds that the complaint is unsubstantiated: s 99. If, after an inquiry, the Tribunal finds that a complaint is substantiated, it may make one or more of the orders listed in s 89:
"(a) an order that the respondent must not repeat or continue the discrimination or prohibited conduct;
(b)an order that the respondent must redress any loss, injury or humiliation suffered by the complainant and caused by the respondent's discrimination or prohibited conduct;
(c)an order that the respondent must re-employ the complainant;
(d)an order that the respondent must pay to the complainant, within a specified period, an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct;
(e)an order that the respondent must pay a specified fine not exceeding 20 penalty units;
(f)an order that a contract or agreement is to be varied or declared void in whole or in part;
(g)an order that it is inappropriate for any further action to be taken in the matter;
(h)any other order it thinks appropriate."

The complaint and the Commissioner's determinations

The complainant's complaint is in writing, signed by her and dated 11 November 2014. It was submitted to the Commissioner on the same day. It is on a printed form apparently produced by the Commissioner's office. It specifies the persons against whom the complaint is made as the applicants. The terms of the complaint are as follows:
"When I was growing up my parents maintained that one day I would inherit the family farm and as such financially I would look after myself, education expenses and all from the age of 15. For my younger sister and brother they would provide everything, including education expenses, first cars, fuel, computers, and others. I was in agreeance with this as I was the only sibling interested in the farm, and have been financially independent since this time. Approximately 3 years ago negotiations began on the succession plan, with a payout figure of $800,000 agreed upon, to which my financial adviser agreed was possible. I organised a meeting for us with trained succession planners in which my father cancelled, refusing to attend. At this time he made it very clear that I was not to take on the family farm as I was female, unmarried and incapable. We have not spoken since that day.
Recently the family farm was offered to my brother who declined. He is neither interested and unlikely to be able to obtain finance.
3 weeks ago I noticed that the farm was listed on the internet for sale and last week I heard that there was a contract of sale on the farm. I approached my uncle to act as mediator who approached my parents with the same offer to take over the family property as my brother. I was again declined.
I am 32 years old, I have been working in the agriculture industry for the last 14 years, 3 of those working as a farm labourer whilst studying, 8 of those as an agronomist, 2 as a field officer for a vegetable processing company and the last year in Rural finance. I hold an Advanced Diploma of Agriculture, a Diploma of Horticulture and am currently completing a Diploma of Agribusiness Management. I believe that I have the knowledge, experience and qualifications to run any farming business. This property has been in the family for 2 generations and it was my grandfathers wish for the property to be passed to future generations.
I believe that this is a very clear case of discrimination against me for gender and marital status."
The complaint form asks the complainant to specify the type of unlawful discrimination and the reason for the discrimination relied on. In this case the attributes of "gender/sex" and "marital status" are specified. The document then asks "Do you believe you have been humiliated, intimidated, insulted, ridiculed or offended" because of a prescribed attribute. Again, the complainant specified "gender/sex" and "marital status". The document then asks "In what situation did these things happen? (area of activity)" and the seven areas of activity listed in s 22(1) are set out. In this case, none of those areas of activity are specified.
The Commissioner accepted the complaint on 22 December 2014 and conducted an investigation. On 23 June 2015 she determined that the complaint was to proceed to an inquiry and gave written reasons for her determination. The reasons refer, not only to the terms of the complaint, but to information provided to her by the complainant during the investigation. That further information included that:
·     in 2003, when her parents made a will, she was told that the farm would go to her;
·     in 2010 she discussed the farm with her parents and her father said "one day you'll get the farm, we want $800,000";
·     in 2012 her father told her that she was "hopeless", that she will "remain single forever" and that she will "never marry";
·     in April 2012, her father "made it clear" that she would not take over the farm because "she is female, unmarried and incapable";
·     in 2013 and 2014 her father unsuccessfully attempted to persuade her brother to buy the farm for $800,000.
The Commissioner determined that the Act could apply to the conduct complained of because it could amount to direct discrimination and could amount to offensive and insulting conduct by or against a person engaged in, or undertaking, an activity in connection with two of the specified areas of activity: the provision of services (s 22(1)(e)) and employment (s 22(1)(a)).

Grounds (a) and (f) – natural justice and time

Grounds (a) and (f), concern the Commissioner's decision to accept the complaint when at least some of the conduct complained of was more than 12 months before the complaint was made. The grounds require consideration of s 63 of the Act. By subs (1) it provides that complaints must be made within 12 months of the discrimination or prohibited conduct taking place, but, by subs (2), that the Commissioner "may accept a complaint made after the 12-month time limitation has expired if satisfied that it is reasonable to do so".
In this case, at least some of the conduct complained of occurred about three years before the complaint was made, when it is claimed that Mr Abblitt told the complainant he would not sell her the farm. Then, three weeks before making the complaint the complainant's offer to purchase the farm was again rejected. On 24 December 2014, two days after the complaint was accepted, a document entitled "Summary of Complaint and Focus of Investigation" was produced bearing the letterhead of the Office of the Anti-Discrimination Commissioner. It is not clear whether it was written by the Commissioner or someone authorised by her, but I will refer to it as if it were the Commissioner. She was aware of the s 63 time limit. The document records that two discrete discriminatory acts were alleged and considered, in some detail, whether there was what is referred to as "continuing conduct". The term "continuing conduct" does not appear in the Act. Its intended meaning in the context of the operation of s 63 is not entirely clear and it is not necessary that I consider it further now. The Commissioner decided to include all of the conduct as part of the investigation because "the complaint was made within time, and … the alleged conduct is continuing conduct starting approximately 3 years ago and concluding approximately 3 weeks before Ms Abblitt made her complaint".
Ground (f) asserts, in part, that "the Commissioner's decision was contrary to law, there being no complaint of conduct within 12 months of making the complaint". I do not agree. The complaint included Mr Abblitt's refusal to sell three weeks before the complaint. Although the evidence of that conduct did not include attribution of a reason for the refusal at that time, it is open to infer from evidence of earlier conduct that the refusal was on the grounds of a prescribed attribute. This ground fails.
Ground (a) concerns an alternative course taken by the Commissioner. In the document dated 24 December 2014 she said:
"In the alternative, the Commissioner the part of the complaint involving conduct that occurred more than 12 months before the complaint was made on the basis that she as satisfied it was reasonable to do so under section 63(2) of the Act as there appears to be continuing conduct (sic)".
Although the passage just quoted contains some grammatical errors, it sufficiently discloses the Commissioner's satisfaction, at 24 December 2014, that it was "reasonable" to accept the complaint outside the 12-month period. The applicants claim that the decision was made in breach of the rules of natural justice because they were not given an opportunity to be heard about it.
Section 63 is a curious provision. It is at once to be noted that subs (2) is directed to the acceptance of the complaint, not to the investigation or to the later decision that a complaint be dismissed or proceed to conciliation or inquiry. It follows that, in order to accept a complaint, the Commissioner must, by then, have determined that either the conduct complained of occurred within the previous 12 months, or that it was reasonable to accept a complaint about conduct occurring outside that period. I note in passing that the lapse of the time limit imposed by s 63 is not one of the grounds for rejection of the complaint specified in s 64. However, it must follow that if the Commissioner determines that the complaint is out of time, and is not satisfied that it is reasonable to accept the complaint, then it must be rejected. The Commissioner must either accept or reject a complaint within 42 days of its receipt: s 63(2).

The Tribunal, constituted by Professor Otlowski, considered the matters relevant to the power to accept a complaint out of time in Coleman v Gourlay [2006] TASADT 3. She applied Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Fraser v President of the Anti-Discrimination Board [2001] NSWCA 1083, each of which require consideration of potential prejudice to the respondent as relevant to the exercise of the power to extend time. That issue could not be fairly considered unless the respondent to an application which is, or may be, out of time is given a fair opportunity to be heard. Faced with the 42 day time limit, the making of a determination to accept a complaint out of time while extending procedural fairness to a respondent is an awkward task. The Act imposes no obligation on the Commissioner to notify the respondent to a complaint until after the complaint has been accepted, at which time the obligation arises to, within 10 days, notify the respondent of that acceptance, provide the respondent with reasons for accepting the complaint, and give the respondent a copy of the complaint and a summary of the complaint. Thus, unless the Commissioner takes some additional step, a person against whom a complaint is made may not even be aware of the complaint until after the decision to accept it out of time is made.
The situation I have just explained occurred in this case. The Commissioner determined that she was satisfied it was reasonable to accept the complaint out of time, apparently before the applicants were notified of the complaint. On the materials before me, the applicants were given no opportunity to be heard about whether the conduct complained of took place outside the 12-month time limit, and if so whether the Commissioner should be satisfied that it was reasonable to accept the complaint, before the complaint was accepted. A breach of natural justice is not cured by allowing an opportunity to be heard after a decision is made. Even allowing for the possibility that, despite the terms of s 63(2), a complaint may be rejected as out of time after it has been accepted, the applicants were not given a fair opportunity to be heard on the issue before the complaint was referred to inquiry. They were advised of the Commissioners decision to accept the complaint, with the reasoning on the time issue, but were never invited to say anything about the questions relevant to the time issue.
Thus, but for one remaining question, this ground should succeed. The application specifies that the decision which is the subject of the review is the Commissioner's decision made on 23 June 2015 to "accept the complaint". For reasons I have already explained, that cannot be correct. As s 63 is directed to acceptance of the complaint, the reviewable decision must have been made on 22 December 2014. The JR Act, s 23, imposes a time limit of 28 days for an application for an order of review under that Act. The application was not made within that time. Counsel for the applicants submits that it does not matter because the Commissioner's determination to accept the complaint is void. Time may be extended in any event: the JR Act, s 23(2). However, no application for an extension has been made. Because of the conclusion I have reached on other grounds of the application it is unnecessary that I resolve that question.

Construction of the legislation

Before dealing with the remaining grounds I will say something about how the Act is to be construed. The Act is remedial and beneficial legislation. It is intended to remedy injustice and inequality and promote equality of opportunity. In its title the Act is expressed to be an Act "to prohibit discrimination and other specified conduct". The Acts Interpretation Act 1931, s 8A, provides that an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object. The principle that particular statutory provisions must be read in light of their purpose is of particular significance in the case of legislation which protects or enforces human rights: Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 359; AB v Western Australia (2011) 244 CLR 390 at [24]. As Brennan and McHugh JJ stated in IW v City of Perth (1997) 191 CLR 1 at 12:
"… beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural."
It is important to bear in mind that not all discrimination or insulting or offensive conduct, even if based on gender or marital status or any of the other prescribed attributes (excepting inciting hatred), is contrary to the Act. Section 22 confines the application of the Act to particular areas of activity. Discriminatory or prohibited conduct outside those areas of activity is not in breach of the provisions of the Act, and the Act has no application to it. No doubt that is because, as was pointed out by Brennan and McHugh JJ in IW v City of Perth, the legislation attempts to accommodate various competing interests. Those interests must include the individual rights and freedoms of persons against whom complaints are made, as well as the interests of victims of discrimination and prohibited conduct. Thus, as their Honours explained at 15:
"… when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory."
The resolution of this application depends on whether, with the foregoing principles of statutory construction in mind, the Commissioner was correct to determine that the conduct complained of could be said to be "by or against a person engaged in, or undertaking any, activity in connection with" either of the two specified areas of activity, namely provision of services and employment.

Grounds (b)-(f) – the provision of services

I will first deal with the issue of the provision of "services". The statutory definition is an inclusive one:
"services includes services —
(a)relating to access to, and the use of, any place that members of the public are permitted to enter; or
(b)relating to banking, insurance, superannuation or the provision of grants, loans, credit or finance; or
(c)relating to entertainment, refreshment or recreation; or
(d)relating to transportation and travel; or
(e)relating to any profession, trade or business; or
(f)provided by a State authority or a council; or
(g)relating to selling, buying, leasing, assigning or disposing of an interest in land."
The meaning of the noun "service", according to the Macquarie Dictionary online, includes "an act of helpful activity; the supplying or supplier of any articles, commodities, activities, etc, required or demanded; the providing of, or a provider of, a public need, such as communications, transport, etc; the organised system of apparatus, appliances, employees, etc, for supplying a public need; and the supplying or a supplier of water, gas, or the like to the public". The meaning of the term "services", and what amounts to "provision of a service", was considered by Cox CJ in two decisions in 2000: R v Anti-Discrimination Commissioner; Ex parte McDermott (2000) 9 Tas R 332 and R v Anti-Discrimination Commissioner; Ex parte McDermott (No 2) [2000] TASSC 180. Then, in 2003, the term was considered by Underwood J (as he then was) in The Secretary of the Department of Justice and Industrial Relations v The Anti-Discrimination Commissioner (2003) Tas R 324. In each case reference was made to IW v City of Perth, which also considered the meaning of the term "service", but the focus of the High Court in that decision was primarily on whether functions and duties of government bodies amounted to the provision of "services". Brennan and McHugh JJ said at 12 that subject to the proviso that a court should not adopt an unreasonable or unnatural construction:
"… if the term 'service', read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a 'service' for the purpose of the Act."
At the time the Tasmanian cases were decided, s 22 was different in that it referred only to activities of the complainant. In 2004, s 22 was amended to refer to discrimination or prohibited conduct either by or against the person engaged in the activity. Thus, the relevant question for determination now becomes whether, at the relevant time, either Mr and Mrs Abblitt or their daughter, were "engaged in, or undertaking any, activity in connection with" the provision of services relating to selling, buying, or disposing of an interest in land: ss 3 and 22(1)(c). In this case, the amendment makes no difference, because I have concluded that neither the applicants nor the complainant were, at the relevant time, acting in the provision of services relating to the sale or purchase of land.
In the McDermott cases, the complainants contended that they were dealt with unfairly in the disposal of interests of land according to the terms of a will. Cox CJ was called upon to determine whether performance by executors of their duty to carry out the terms of the will was provision of a service. His Honour concluded that it was not. At [9] of the earlier decision his Honour said:
"While the definition of services is wide and includes 'services relating to selling, buying, leasing, assigning or disposing of an interest in land', it is not every activity which relates to assigning or disposing of an interest in land which is subject to the application of the Act, but only the provision of a service relating to the assigning or disposing of an interest in land. For there to be discrimination to which the Act applies, there must be discrimination not only in relation to a service but also in relation to the provision of a service. The carrying out of a duty imposed on the prosecutors as executors of the testator's will, still less the mere retention by them of the interests specifically devised to them by the will or a refusal by them to give their sisters an interest in some part of it which is not required by the will, cannot be said to be a matter relating to the provision of a service. Nor, in my view, can it be said that what has happened to the complainants (which arguably amounts to discrimination) occurred while they were engaged in or undertaking any activity in connection with the provision of services."
In this case, what the complaint reveals, taken at its highest, is that:
·     the applicants owned the "family farm;
·     the complainant was interested in the farm, has worked in agricultural industries in which she has qualifications and experience;
·     about three years earlier there were "negotiations on a succession plan" with a "payout figure of $800,000 agreed upon";
·     a meeting with trained succession planners was cancelled by Mr Abblitt;
·     at some unspecified time the farm was offered to the complainant's brother;
·     about three weeks before the complaint the farm was listed on the internet for sale;
·     the complainant's offer to take over the family property was again declined by the applicants.
The investigation revealed a claim by the complainant, as it concerns this aspect of the decision, that Mr Abblitt told her in 2010 that "one day you'll get the farm, we want $800,000" but he later declined to sell.
In her determination of 23 June 2015, the Commissioner referred to the definition of "services" in s 3(g) as including services "relating to selling, buying, leasing assigning or disposing of an interest in land" and said:
"The relevant provision of a service in this complaint is Mr and Mrs Abblitt's alleged decision, which is the refusal of a service, namely not to assign or sell the farm to Ms Abblitt."
The Attorney submits that the sale of property to another is provision of a service, and an offer of the property for sale to others and the refusal to sell to the property to the complainant activity "in connection with" the provision of a service.
I do not accept that the Commissioner's determination, or counsel for the Attorney's submission, is correct. There are obvious examples of the provision of services relating to the sale and purchase and disposal of interests in land. Real estate agents provide such services, as do legal practitioners and licensed conveyancers. They are providing a service relating to the buying or selling of land. Real estate agents who manage rental properties, or lawyers who draw leases, provide a service in relation to the leasing of land. The types of service provided by such persons is consistent with the services contemplated by the other parts of the statutory definition. In this case, the acts alleged comprise offering a farming property for sale and statements of intention within a family concerning the possible sale or future sale of land used for private purposes, an agricultural purpose. In my view, however beneficially and liberally the legislation is construed, no reasonable construction of the legislation permits such acts to be characterised as the provision of services. To describe a refusal to sell privately owned land to a family member or anyone else as the provision of a service requires a tortured and unnatural construction of the language of the legislation. Nor can it be said that the placing of privately owned land on the market for sale to others is provision of a service. If the position adopted by the Commissioner is correct, then everyone who offers real estate for sale is providing a service. It might be arguable that those involved in the commercial development and sale of real estate provide a service connected to the sale of land, but it is not necessary that I express a concluded view on that question. No-one in this case engaged in or undertook an activity in connection with the provision of a service relating to the sale or transfer of land. The term "in connection with" was considered by Evans J in Lindisfarne R & S L A Sub-Branch and Citizen's Club Inc v Buchanan (2004) 80 ALD 122; [2004] EOC 93-347. But, however broadly the expression is interpreted, there cannot be an activity "in connection with" provision of a service if there is no provision of a service. The applicants, by owning land, by deciding to sell their land and by deciding who to sell it, or who not to sell it to, were not providing a service to anyone. Neither the complainant nor the applicants were engaged in, or undertaking, any activity in connection with the provision of a service of sale or disposal of land.
Although it is not essential to the conclusion I have reached, I think that there is considerable merit in the submission of counsel for the applicants that Parliament did not intend to extend the application of the legislation to the disposition of interests in privately owned land. If Parliament had intended the Act to apply to such conduct it could easily have said so. In that regard, the Tasmanian legislation is to be distinguished from provisions such as the Equal Opportunity Act 1984 (WA), s 21A, which provides that it is unlawful for a person to discriminate against another person on the ground of the sex, marital status, pregnancy or breast feeding of the other person "by refusing or failing to dispose of an estate or interest in land to the other person".
Because the conduct complained of is not in connection with the provision of services relating to selling, buying, leasing, assigning or disposing of an interest in land, it cannot, in that way, amount to discrimination or prohibited conduct to which the Act applies.

Grounds (b)-(f) – employment

In her decision of 23 June 2015 the Commissioner referred to the definition of "employment" in s 3 as including "occupation in any capacity" and said:
"Although the complaint relates, in part, to private family negotiations regarding future inheritance, it is possible that Ms Abblitt and her parents were undertaking activities in connection with employment, as the complaint relates to the occupation of running a farming property and who would take over that running."
Taken at its highest, the terms of the complaint and the investigation reveal that:
·     the complainant had been working in agricultural industries for some years;
·     she had acquired qualifications in agriculture, horticulture and agribusiness management;
·     she was interested in the farm and wanted to buy it for $800,000; and
·     she wanted to take over the farm and was capable of running "any farming business".
The definition of "employment" in s 3 reads:
"employment includes —
(a)employment or occupation in any capacity, with or without remuneration; and
(b)membership of partnerships; and
(c)registration or recognition by, or membership of, professional and trade organisations; and
(d)registration or recognition by qualifying bodies; and
(e)engagement of commission agents; and
(f)registration or placement by employment agencies; and
(g)engagement under a contract for services; and
(h)employment by any person; and
(i)registration or enrolment by vocational training bodies."
The complaint and the investigation disclose that the complainant was not and had never been employed by or engaged in an occupation with the applicants. She was employed elsewhere. The statutory definition is inclusive. There is no evidence capable of sustaining a finding that the conduct had any connection with employment according to the ordinary meaning of that word. The complainant had not been and did not assert that she had been or would be employed on the farm. The only part of the definition which could have any application is par (a) which includes "occupation in any capacity". However, the only possible connection to an occupation was an intention, if she was able to buy the farm, to operate it, and, in that sense, engage in an occupation. With respect to the Commissioner, there was no evidence to justify the conclusion that the asserted discrimination or prohibited conduct was by or against a person engaged in, or undertaking, any activity in connection with her occupation. The conduct complained of was not against her as a person engaged in or undertaking any activity in connection with her occupation.
Because the conduct complained of is not in connection with employment, it cannot, in that way, amount to discrimination or prohibited conduct to which the Act applies.

Ground (a) – undisclosed documents

Ground (a), in part, asserts a breach of the rules of natural justice because the Commissioner referred the complaint to inquiry when she "had and read documents supplied by Lisa Abblitt in the course of making the decision without disclosing such documents to the applicants".
In the course of her decision of 23 June 2015 the Commissioner said:
"Ms Abblitt also provided a number of supporting documents in relation to her allegations, however, instructed the (OADC) not to provide copies of those documents to the respondents. Due to rules of natural justice and procedural fairness, I made this decision on the basis of materials of which both parties are aware, and have had a chance to comment on. Staff of the OADC informed Ms Abblitt of this and requested Ms Abblitt's permission to provide those supporting documents to Mr and Mrs Abblitt, or in the alternative, asked Ms Abblitt to provide those documents in a form she would be content for Mr and Mrs Abblitt to have access to. Ms Abblitt stated that she did not want the documents to be sent to Mr and Mrs Abblitt. As a result, Mr and Mrs Abblitt have not seen those supporting documents and I have not relied on them in making my decision."

In his submission that the failure to disclose the documents to the applicants amounted to a breach of the rules of natural justice, counsel for the applicants relied on the judgment of Crawford J (as he then was) in R v Medical Council of Tasmania; Ex parte Dr Harold Stewart Blackburn [1998] TASSC 14. In that case his Honour considered whether the Medical Council constituted under the Medical Practitioners Registration Act 1996 afforded procedural fairness to a medical practitioner in its assessment of a medical practitioner's fitness to practice. The Council had certain documents before it, which were adverse to the practitioner, but did not give him the opportunity to examine, comment on or answer those documents. Crawford J found a breach of natural justice. His Honour referred to Kioa v West (1985) 159 CLR 550 at 629, Brennan J; Johns v Release on Licence Board (1987) 9 NSWLR 103 at 116, and Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 in which comments were made about the real risk of prejudice, even at a subconscious level, once a decision-maker has looked at prejudicial material which cannot be overcome by statements that such material is excluded from account. In such circumstances fairness may only be achieved by disclosure of the material to the person whose interests may be affected by it and providing an opportunity to respond to it.
I accept that, in general terms, the Commissioner has a duty to observe the rules of natural justice. The duty will extend to disclosing to the respondent to a complaint any material, including documents, given to the Commissioner with the complaint or during the investigation which may be reasonably capable of affecting the respondent's position either adversely or favourably. The duty will also extend to permitting the respondent a fair opportunity to answer or utilise the document. However I do not see that Blackburn is authority for the proposition that, for the purposes of review under the JR Act, the failure to disclose any document of any nature in the hands of the decision-maker, no matter how trivial or irrelevant, always constitutes a breach of natural justice. Each decision must be viewed in its statutory context. Here, unlike in Kioa v West, issues of confidentiality arise: s 69. How and to what extent issues of confidentiality affect issues of fairness cannot be considered in a vacuum, and must be informed by the nature of the confidentiality claimed and its relevance to the issues complained of. I have no information about the contents of the documents given to the Commissioner. I make no criticism of the applicants or their advisors. They are also unaware of the contents of the documents. However, as far as I am aware, no procedural steps were attempted to obtain the documents the Commissioner referred to, and the fact remains that I cannot make any judgment about their content. In Blackburn, although Crawford J made clear that it is not to the point that there is no evidence that the documents influenced the decision-maker, his Honour found in that case that the documents shown to the Council were relevant to and caused concern about the practitioner's fitness, and were regarded by the decision-makers as significant. At stake was the practitioner's right to practice medicine.
The content of the duty to extend natural justice is also informed by the nature of the Commissioner's function and the potential consequences of it. The Commissioner was not determining whether discrimination or prohibited conduct was established. Her function was to determine whether to reject the complaint or refer it to conciliation or inquiry. Whether the failure to disclose documents is unfair is to be considered in the context of that determination. A referral to inquiry is by no means the end of the matter. It would thereafter have been for the Tribunal to conduct the inquiry. Each case will depend on its facts. In this case, I am not satisfied that the failure to disclose documents, the contents of which are unknown to me, prior to referral to inquiry, establishes a breach of natural justice. This ground is not made out.

Resolution of the application

This application is brought pursuant to the JR Act. The grounds upon which the Commissioner's decision to refer the complaint to inquiry may be reviewed are specified in s 17(2). They include:
"(a) that a breach of the rules of natural justice happened relating to the making of the decision;
(b)…
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorised by the enactment under which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f)that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g)…
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law."
Counsel for the Attorney submitted that the Commissioner's acceptance of the complaint on 22 December 2014 amounted to a determination that the Act applied to the conduct complained of, and pointed out that there was no appeal against the Commissioner's decision not to reject the complaint at that time. She contended that because the determination that the complaint proceed to inquiry involved no new or different considerations, the time for review of the Commissioner's determination imposed by the JR Act expired before the application was filed. I do not accept that submission. The determination to accept, and not reject, a complaint under s 64, is a different statutory function than the determination under s 71(1)(c), after investigation, that a complaint proceed to inquiry. In this case, it is the latter decision to which the application for review applies, and the application was made within time.
I am well aware that the Commissioner's function was to investigate, not determine the complaint. Her function was to determine that the complaint either be dismissed, proceed to conciliation or proceed to inquiry: s 71. I respectfully agree with the comments of Cox CJ in the first McDermott decision at [12] that claims not misconceived or lacking in substance should not be dismissed out of hand. Equally, however, where it has been clearly established that the Act could not apply to the conduct complained of, as disclosed by the terms of the complaint and informed by the Commissioner's investigation, a court of review should intervene.
The Commissioner's determination that the complaint should proceed to inquiry was not authorised by law, was an improper exercise of her power and involved an error of law because the conduct about which the complaint was made was not in connection with any area of activity specified in s 22. Hence, the Act did not apply to it. The only course open to the Commissioner was to determine to dismiss the complaint.
Because the JR Act is the appropriate vehicle for the grant of relief in the application, it is unnecessary that I consider the application for the grant of relief in the nature of certiorari.
The powers of this Court in applications for an order of review under the JR Act are contained in s 27. I order, pursuant to s 27(1)(a), that the Commissioner's determination made 23 June 2015 that the complaint proceed to inquiry is quashed with effect from 18 March 2016. It seems to me that it follows from my reasons that the complaint should be dismissed. However, the terms of s 27 leave me in some doubt about whether I may make that order, whether I should refer the complaint to the Commissioner with a direction that the complaint be dismissed, or that I should adopt some other course. I will hear the parties about that matter and any further or other consequential orders.