Anti-Discrimination Commissioner v White - [2023] TASSC 26

[2023] TASSC 26

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Anti-Discrimination Commissioner v White [2023] TASSC 26
PARTIES:	ANTI-DISCRIMINATION COMMISSIONER
v
WHITE, Martin
DEPARTMENT OF POLICE, FIRE AND EMERGENCY
MANAGEMENT
ADAMS, Donna SECRETARY
DEPARTMENT OF POLICE, FIRE AND EMERGENCY
MANAGEMENT
v
WHITE, Martin
FILE NOS:	3311/2022, 429/2023
JUDGMENT
APPEALED FROM:	Martin White v Department of Police, Fire and Emergency
Management [2022] TASCAT 126
DELIVERED ON:	26 July 2023
DELIVERED AT:	Hobart
HEARING DATE/S:	19 June 2023
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Error of law – Whether direct discrimination can be remedied by subsequent internal action – Meaning of "program, plan or arrangement designed to promote equal opportunity" – Whether s 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 is conjunctive – Tribunal erred in finding direct discrimination remedied by internal grievance process – Tribunal erred in finding s 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 is conjunctive – Appeal allowed.

Aust Dig Administrative Law [1030]

Administrative law – Judicial review – Procedure and evidence – Extension of time – Particular cases – Where subject matter of proposed appeal is the same as another appeal that has been lodged in time – Where other appeal succeeds – Application to extend time granted.

Aust Dig Administrative Law [1089]

REPRESENTATION:

Counsel (3311/2022):

Appellant: S Fitzgerald
First Respondent: J Zeeman
Second Respondent: M Jehne

Solicitors (3311/2022):

First Respondent: Wallace Wilkinson & Webster Lawyers
Second Respondent: Solicitor-General

Counsel (429/2023):

Applicant: M Jehne
First Respondent: J Zeeman
Intervenor: S Fitzgerald

Solicitors (429/2023):

Appellant: Solicitor-General
First Respondent: Wallace Wilkinson & Webster Lawyers

Judgment Number:	[2023] TASSC 26
Number of paragraphs:	64

Serial No 26/2023

File Nos
3311/2022,
429/2023

ANTI-DISCRIMINATION COMMISSIONER v MARTIN WHITE and

DEPARTMENT OF POLICE, FIRE AND EMERGENCY MANAGEMENT

REASONS FOR JUDGMENT

MARSHALL AJ
26 July 2023

1 Both appeals before the Court (or in strict terms an appeal and an application to extend time within which to appeal) arise as a result of allegations that a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal") contains errors of law and should be set aside with the matter remitted to the Tribunal to be determined in accordance with law. An appeal lies against a decision of the Tribunal on a question of law against an order of the sort made by it at the behest of "any person", see s 136(1)(a)(i) of the Tasmanian Civil and Administrative Tribunal Act 2020.

The matter before the Tribunal

2 On or about 10 February 2021, Mr Martin White (the first respondent in matter 3311/2022 and the respondent in matter 429/2023) made a complaint to Equal Opportunity Tasmania ("EOT") "(i)n relation to discrimination and prohibited conduct". "Complaint" is defined in s 3 of the Anti- Discrimination Act 1998 ("the Act") to mean "a complaint made in relation to discrimination or prohibited conduct".
3 In compiling the details of that complaint himself, in compliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] TASSC 26
Decision Date: 26 July 2023

CaseChat Overview and Summary

The Anti-Discrimination Commissioner for the state of Tasmania sought judicial review of a decision made by the Civil and Administrative Tribunal of Tasmania, which had dismissed a complaint of direct discrimination. The complainant alleged that the respondent had discriminated against her on the basis of her sex by refusing her a promotion. The dispute centred on whether the Tribunal had correctly interpreted and applied the Tasmanian anti-discrimination laws in dismissing the complaint.

The legal issues before the court involved two primary questions. Firstly, whether the Tribunal had erred in concluding that the act of direct discrimination could be remedied by subsequent internal action within the organisation. Secondly, whether the Tribunal had correctly interpreted the phrase "program, plan or arrangement designed to promote equal opportunity" in section 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 as a conjunctive phrase. The court had to determine whether the Tribunal's interpretation and application of the law were correct.

The court found that the Tribunal had indeed erred in its reasoning. It concluded that the Tribunal had misinterpreted the law by suggesting that direct discrimination could be remedied by internal grievance processes. The court held that direct discrimination, by its very nature, could not be remedied by subsequent actions. Furthermore, the court found that the Tribunal had erred in interpreting section 104 of the Act as a conjunctive phrase, which would require all elements to be present for a program, plan, or arrangement to qualify as one designed to promote equal opportunity. The court held that the phrase should not be interpreted in a conjunctive manner. Consequently, the appeal was allowed, and the decision of the Tribunal was set aside.

In light of the findings, the court ordered that the matter be remitted back to the Tribunal for reconsideration in accordance with the correct legal principles. The court did not make any further orders beyond this.

Orders