Act Domestic Violence Crisis Service Inc v Kowalski, Stan Lech
[1997] FCA 381
•2 MAY 1997
CATCHWORDS
ADMINISTRATIVE LAW - Jurisdiction of Tribunals - allegation that Domestic Violence Crisis Service discriminated in the provision of crisis services because of sex - construction of ‘application’ provisions of Sex Discrimination Act - whether SD Act applied to ACT incorporated body contracted to provide services by ACT Administration - consequential jurisdiction enjoyed by HREOC.
Sex Discrimination Act 1984: s9(3); 9(4); 9(7)
ACT DOMESTIC VIOLENCE CRISIS SERVICE INCORPORATED (Applicant) v STAN LECH KOWALSKI (First Respondent) HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (Second Respondent)
No NG 81 of 1996
FINN J
CANBERRA
2 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. NG 81 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:ACT DOMESTIC VIOLENCE CRISIS SERVICE INCORPORATED
Applicant
AND:STAN LECH KOWALSKI
First Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent
COURT:FINN J
PLACE:CANBERRA
DATE: 2 MAY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
the appeal be dismissed and the matter be remitted to the Commission for further hearing in light of these Reasons; and
the applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. NG 81 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN:ACT DOMESTIC VIOLENCE CRISIS SERVICE INCORPORATED
Applicant
AND:STAN LECH KOWALSKI
First Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent
COURT:FINN J
PLACE:CANBERRA
DATE: 2 MAY 1997
REASONS FOR JUDGMENT
This application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) raises a question as to the proper construction of s9 (the application of Act provision) of the Sex Discrimination Act 1984 (Cth) (“the SD Act”) as it stood prior to its amendment by the Law and Justice Legislation Amendment Act 1990 (Cth). That last Act amended the definition of “Territory” in the SD Act so as thereafter to exclude (inter alia) the Australian Capital Territory as such from its compass.
The first respondent in this proceeding made a complaint to the Commission of sex discrimination by the ACT Domestic Violence Crisis Service Inc (“the DVCS”), the acts complained of allegedly occurring in February 1990. The wrongful act alleged was that the DVCS refused to provide a service or facility to the first respondent and in so doing discriminated against him on the ground of his sex: SD Act, sections 5 and 22(1)(a).
For present purposes it is to be assumed that the complaint made would itself otherwise be a proper subject of inquiry if it was one falling within s9, the application provision of the SD Act. Whether it so fell was the threshold “jurisdiction” question determined by the Commission and determined favourably to the complainant-first respondent.
Before outlining briefly the factual circumstances of concern in this application, it is appropriate first to set out the provisions of s9 of the SD Act insofar as presently relevant.
The SD Act s9
“Application of Act
9.(1) In this section:
“Australia” includes the external Territories;
“prescribed provisions of Division 3 of Part II” means the provisions of Division 3 of Part II other than sections 28D and 28L;
“prescribed provisions of Part II” means the provisions of Divisions 1 and 2 of Part II other than sections 19, 26 and 27.
...
(3)This Act has effect in relation to acts done within a Territory.
(4) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by sub-section (3) of this section and the following provisions of this section and not otherwise.
...
(7)The prescribed provisions of Part II have effect in relation to acts done, by or on behalf of:
(a)the Commonwealth or the Administration of a Territory; or
(b)a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;
in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.”
Section 22 of the SD Act provides (inter alia):
“Goods, services and facilities
22.(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;”
This provision falls within Division 2 of Part II of the SD Act and is, in consequence, a “prescribed provision of Part II” for the purposes of s9(1). As I have earlier noted the wrongful act complained of in this matter was discrimination of a type referred to in s22(1)(a).
Factual Background
The DVCS is a body that was incorporated in the ACT on 16 February 1988 under the provisions of the Associations Incorporation Ordinance 1953. Its objectives, as enumerated in its amended constitution are:
“a)In co-operation with the police and other relevant agencies, to work towards the elimination of violence in interpersonal relationships and to provide a dedicated service.
b)To change the inherent power difference between women and men which creates and perpetuates domestic violence.
c)To work towards the empowerment of all women and children through access to information, knowledge and development of living skills.
d)To develop and promote a sound analysis and understanding within the community of domestic violence.
e)To ensure that there are a wide range of services available to survivors and perpetrators of domestic violence and to facilitate access to those services.
f)To enable those who experience domestic violence to see themselves as survivors not victims, and to educate the community to accept them as survivors.”
The constitution provided for a management committee of the DVCS composed as follows:
“a)The Management Committee shall comprise not more than 15 persons being:-
i)six persons elected pursuant to clauses 9d) and 24 of this constitution
ii)one representative from employees of the organisation elected pursuant to clause 24e)
iii)one representative from the Australian Federal Police
iv)one representative from the ACT Magistrates Court
v)four representatives from ACT Government Services as determined by the Management Committee from time to time to be invited to be members”
The functions of the management committee were prescribed to be these:
“a)The Management Committee shall carry out the administration and business of the Service as specified in this constitution and regulations made thereunder. Action taken by the Management Committee under this clause shall not be subject to ratification.
b)The Management Committee shall be responsible for:
i)providing advice, information and referral to domestic violence survivors
ii)acting as a resource and information centre for the collection of domestic violence information
iii)collecting statistical data and disseminating statistical information
iv)providing the organisational framework for publicity and education programs concerning domestic violence
v)providing crisis intervention services at domestic violence occurrences
vi)liaising closely with the Australian Federal Police
vii)co-ordinating the provision of services in the government and non-government sectors”
viii)providing advice, information and referral to domestic violence offenders about counselling and therapy programs”
In October 1989 the ACT Department of Community Services and Health (“the Department”) entered into an agreement with the DVCS for services to be rendered apparently in the 1989/1990 financial year.
As cl 1 of that agreement noted, the agreement was “negotiated on the basis of priorities, work directions and the provision of service for the year commencing 1st July 1989 ... as determined by the D.V.C.S.”: (emphasis added)
The Agreement itself was one under which the Department funded the DVCS in the sum of $750,438 to perform designated “key tasks”. They were:
“a)To establish, operate and maintain the Domestic Violence Crisis Service on a 24 hour per day and 7 days per week basis.
b)To provide crisis intervention services at domestic violence occurrences.
c)To co-ordinate and monitor the effectiveness of referrals to services in the government and non-government sectors (for D.V.C.S. clients).
d)To serve as a focus of community awareness of the problems of domestic violence.
e)To gather statistics daily on usage of service, and to compile the statistical information on a monthly basis together with relevant documentation of regional needs and to provide the Department with the compiled statistical information every three (3) calendar months during the term of funding.
f)To distribute the statistical information in Task (e) to interested community organisations and government bodies.
g)Develop evaluation strategies for the work of the D.V.C.S. to enusre (sic) that the needs of the ACT Community re domestic violence are met in the most effective way.
h)To undertake evaluations of the service, staff, and management during the term of funding and report on the evaluation to the Community Health Branch of the Department.”
The agreement, further, precluded the DVCS from undertaking activities other than as envisaged by it without the written approval of the Department; it imposed reporting and accounting obligations on the DVCS; and it gave the Department the right to inspect all of the DVCS’s financial records.
The Commission’s Decision
The complaint of sex discrimination having been made to the Commission, an inquiry into it was undertaken under s59 of the Act consequent upon a reference under s52(5) or s57(1)(the evidence being contradictory on this last).
As earlier noted, the question determined by the Commission was whether the complaint itself “was within the jurisdiction of the [SD Act]”. The Commissioner concluded that the DVCS was, in the terms of s9(7)(a) of the SD Act, acting “on behalf of ... the Administration of a Territory [ie the A.C.T.]” at the time of the acts complained of and that “the complainant’s complaint is within the jurisdiction of the SDA”: Reasons for Decision, p 11. I merely note that in reaching this conclusion the Commission did not indicate at all why and in what respects the acts complained of were, in the terms of s9(7) of the SD Act, “done ... in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory”.
Given the view I take of this matter it is unnecessary to enlarge further upon the Commission’s reasons for its conclusion.
The Application to this Court
The error of law relied upon to ground this application (at least as prosecuted before me) was that the Commission incorrectly found:
“(a)at the time the applicant responded to a call to attend a domestic violence dispute on 6 February 1990 involving the first respondent, the applicant was:
(i)acting ‘on behalf of the Administration of a Territory’ within the meaning of that expression in section 9(7)(a) of the Sex Discrimination Act 1984 (C’th); and
(ii)exercising a power conferred by a law of a Territory within the meaning of section 9(7) of the Sex Discrimination Act 1984 (C’th).”
The written submissions the applicant was directed to file - and which were filed on 28 August 1996 - were directed to establishing these contentions.
The first respondent filed his written submissions on 7 February 1997. These in turn sought to answer the applicant’s contentions and no more. Having thereafter changed solicitors, he notified the ACT agent of the applicant’s solicitors on 24 April 1997 (the last working day before the hearing) that he would be seeking to file amended submissions a copy of which was then provided to that agent. Those amended submissions raised this new contention:
“4.In the alternative and notwithstanding the Second Respondent’s reasons for decision, the First Respondent says that the Second Respondent’s decision that the First Respondent’s complaint was caught by the Sex Discrimination Act 1984 and therefore within the jurisdiction of the Sex Discrimination Commissioner was correct and should be upheld because the acts performed by the Applicant were done within a Territory (according to the definition thereof at the time of the acts) and sub-section 9(3) of the Sex Discrimination Act 1984 makes such acts subject to the Sex Discrimination Act and, more particularly, Section 22 thereof.”
At the hearing of the application I permitted the respondent to raise this contention while offering the applicant the opportunity - not in fact availed of - of putting in written submissions on it.
Though raised so late (but cf ADJR Act, s11(6))and while lacking in necessary elaboration, the contention itself is decisive of the question the Commission in fact had to decide. I will indicate below why this is so. This conclusion moreover relieves me of the need actually to consider the correctness of the Commission’s reasons so far as they go in justifying the Commission’s ultimate conclusion of “jurisdiction”.
Despite Mr Walmsley’s invitation on behalf of the applicant so to do, I am not minded to express any concluded view on the proper interpretation of s9(7), the moreso because the respondent, without conceding the matter, admitted to difficulties in supporting the actual reasons of the Commission and addressed only faintly on that basis. His sole submission, which I am unable to accept as a matter of construction of the DVCS’s agreement with the Department, was that the DVCS acted as the Department’s agent. I would, though, venture this much.
Whether or not the DVCS could properly be said to have been acting, relevantly, “by or on behalf of” the Administration of the ACT (SD Act, s9(7)(a)), there are formidable difficulties in the way of finding that the acts complained of were done “in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory” as the subsection as well requires.
Though acting in performance of its agreement with the Department when the act complained of occurred, vis-a-vis the complainant-respondent the appellant’s actions in performance seem hardly referable to any law of the Commonwealth or the Territory. They were actions which, having the requisite corporate capacity, the DVCS had the right as a legal person to perform without the additional need for any positive power or authority of any form from a Commonwealth or Territory law. It is, furthermore, difficult to discern what such a law might have been in this instance. This, as I earlier noted, is not a matter the Commission considered.
Turning to s9(3), it at that time applied the SD Act to acts done in the ACT. It is not disputed that the complaint in this matter related to acts done in the Territory. As I have noted, the unlawful act complained of was that dealt with in s22 of the SD Act and, as such, was a “prescribed provision of Part II” for s9 purposes.
In consequence of this the application of s22 was governed by the provisions of s9(4) of the SD Act. Adapted to the particular circumstances of this application that sub-section can be taken to read as follows:
‘Section 22 has effect as provided by sub-section (3) (ie has effect in relation to acts done within the ACT) and by the following provisions of this section (including subsection (7)).’
Mr Walmsley for the DVCS has submitted that, notwithstanding the apparent amplitude of subsection (3), it must have a restricted meaning otherwise there would be no need for sub-section (7) at least in relation to acts done within the ACT.
I am not clear what that restriction might be other than, perhaps, that when the complaint is of an act done by or on behalf of “government” it is subsection (7) that needs to be relied upon. The applicant disavows any suggestion that it is within the purview of that subsection.
Suffice it to say, for present purposes that, consistent both with the objects of s3 of the SD Act and with the clear constitutional power of the Commonwealth to carry these into effect in the ACT, I can see no reason to read this legislation down so as to limit its then proscription of discrimination practised by persons (natural or corporate) in the ACT where the ordinary and natural meaning of sub-section (3) does not require this. This is a statue that should be construed beneficially.
Whatever the actual meaning of s9(7) - and it is a difficult provision - I do not consider that its difficulties and obscurities should be allowed to undermine the scope of subsection (3), the more so when it is not readily apparent why it is cast in the form it is.
I consider that s9(3) and (4) justify the ultimate conclusion of “jurisdiction” reached by the Commission. They did not, of course, provide the actual basis for that conclusion.
In these circumstances the appropriate course is to dismiss the appeal and to remit this matter to the Commission for further hearing in light of these reasons.
The respondent has submitted that no order as to costs should be made in this matter, primarily because the s9(3) point was raised late in the day and only for the first time in this Court. I do not consider that these circumstances - though unfortunate in timing - justify departure from the usual order that the applicant pay the respondent’s costs.
My orders then are that the appeal be dismissed and the matter remitted to the Commission for further hearing in light of these Reasons, and that the applicant pay the respondent’s costs.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 1 May 1997
Counsel for the applicant : S Walmsley
Solicitors for the applicant : G Kirk
Counsel for the first respondent : A Twigg
Solicitors for the first respondent : J G McMahon
Date of hearing : 28 April 1997
Date of judgment : 2 May 1997
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