Australian Subscription Television and Radio Association and Australian Human Rights Commission and Media Access Australia (Joined Party)

[2010] AATA 1033

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1033

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4470

GENERAL ADMINISTRATIVE DIVISION		)
Re		Australian Subscription Television and Radio Association

Applicant

And Australian Human Rights Commission

Respondent

Media Access Australia

Joined Party

DECISION

Tribunal Senior Member A K Britton

Date21 December 2010

PlaceSydney

Decision Pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) Media Access Australia is joined as a party to these proceedings.

....................[sgd]..................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – joinder of parties – incorporated non-member organisation – meaning of “person whose interests are affected by [a] decision” – discretion to permit party to be joined.

Administrative Appeals Tribunal Act 1975 — ss 27, 30

Disability Discrimination Act 1992 — s 24

Australian Human Rights Commission Act 1986 — s 46F

Administrative Appeals Tribunal Amendment Act 1977 (No. 58 of 1977).

Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (No. 26 of 1982)

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611

Allan v Transurban City Link Ltd (2001) 208 CLR 167

Arnold (on behalf of Australians for Animals) v Queensland and Anor (1987) 73 ALR 607

Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 121 ALR 373

Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615

Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74

Re C and Collector of Customs (NSW) (1983) 5 ALN N222

Re Marine World Victoria and Minister for Arts, Heritage and the Environment [1986] AATA 203

Re City of Doncaster and Templestowe and Minister of Community Services [1987] AATA 48

Re Society Without Alcohol Trauma Inc and Australian New Zealand Food Authority [2001] AATA 126

Re Queensland Investment Corporation and Minister for Transport and Regional Services and Anor [2004] AATA 1025

REASONS FOR DECISION

21 December 2010 Senior Member A K Britton           

1. In September 2010, the Australian Human Rights Commission (the Commission) refused to grant members of the Australian Subscription Television and Radio Association (ASTRA) — subscription TV licensees operating in Australia — a temporary exemption from the application of s 24 of the Disability Discrimination Act 1992 (Cth). Section 24 makes it unlawful for a person who provides services to discriminate against another person on the ground of disability. The exemption sought related to the provision of captions — a form of subtitles provided for use by the hearing impaired — on programs transmitted by ASTRA members.

2.      ASTRA has made an application to the Administrative Appeals Tribunal for review of the Commission’s decision (“the reviewable decision”).

3.      These reasons address a preliminary issue — namely, whether Media Access Australia (“MAA”) should be joined as a party to the substantive proceedings. MAA describes itself as a “not-for profit, public benevolent institution” whose role is to “be a catalyst for the provision of access to media for disadvantaged people through the use of technological solutions”. MAA was one of a number of organisations the Commission consulted about ASTRA’s exemption application.

4.      The Commission supports MAA’s application to be joined to these proceedings. Joinder is opposed by ASTRA.

5. Section 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) identifies persons who may become parties to proceedings before the Tribunal. They include a third party applying to join the proceedings brought by another person who has made an application to the Tribunal for review of a decision. The Tribunal has a discretionary power to join that person providing they are a “person whose interests are affected by the decision”: s 30(1A).

6. Whether the power conferred by s 30(1A) should be exercised in this matter requires the determination of two key issues:

(i)Is MAA a person whose interests are affected by the Commission’s decision which will be reconsidered by the AAT?, and

(ii)If so, should the discretionary power to join MAA as a party be exercised?

7. It is agreed that MAA is a “person” for the purpose of s 30(1A) of the AAT Act.

Application of s 27(2) of the aat Act

8. The first issue to be determined is whether MAA can rely on s 27(2). Subsections 27(2) and (3) go some way to defining a “person whose interests are affected” and provide:

Persons who may apply to Tribunal

…

(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.

(3) Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.

9. By contrast, neither s 30, which as noted gives the Tribunal power to join a party to proceedings, nor the interpretation provision of the AAT Act, s 3, offers a definition of a “person whose interests are affected”.

10. When the AAT Act commenced, the power of the Tribunal to join a party to proceedings was contained in s 30, which provided:

(1) The parties to a proceeding before the Tribunal for a review of a            decision are-

(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;

(b) the person who made the decision; and

(c) any other person who was entitled to apply to the Tribunal for a review of the decision, applied to the Tribunal to be made a party to the proceeding and was made such a party by an order of the Tribunal.

11. The provision relating to who could apply to the Tribunal for review of a reviewable decision was, in all material respects, identical to the current provision. Relevantly, on commencement the AAT Act contained s 27(2) and s 27(3) in their current form as set out in par [8] above.

12. Section 30 was amended in 1977 by the Administrative Appeals Tribunal Amendment Act 1977 (No. 58 of 1977). Specifically, subsection (1)(c) was altered by replacing the phrase “any other person who was entitled to apply to the Tribunal for a review of the decision” with the phrase “any other person (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision”. The amended paragraph (c) read:

(1) The parties to a proceeding before the Tribunal for a review of a decision are -

…

(c) any other person (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision and who applied to the Tribunal to be made a party to the proceeding and was made such a party by an order of the Tribunal  

13. Section 30 was further amended by the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982 (No. 26 of 1982)  Subsections (1)(b) and (1)(c) were repealed, and replaced by new subsections (1)(b)-(d). Relevantly, subsection (1)(d) included as a party “any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with sub-section (1A)”. The new subsection provided:

(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

14. The inclusion of s 30(1A) clarified that the Tribunal has a discretion to join a party to proceedings. (See Explanatory Memorandum, Statute Law (Miscellaneous Amendments) Bill (No 1) 1982 p 13.)

15. As can be seen from this history, s 30 as it stood prior to the 1977 amendments provided that an organisation or association of persons that was eligible to apply for a review of a decision was also eligible to apply to become a non-applicant party, or to be joined to proceedings. This was because an organisation or association of persons that satisfied s 27(2) could apply to be joined to proceedings by virtue of its eligibility to apply for review of the subject decision. In short, an organisation or association of persons seeking to be joined to proceedings could harness the deeming provision contained in s 27(2). The 1977 amendments would appear to have broken the textual nexus between s 27(2) and s 30(1)(c).

16. In a number of decisions made after the 1977 amendments, the Tribunal has assumed that s 27(2) of the AAT Act applies to an organisation or association of persons seeking to be joined. For example, in Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74, Davies J decided to join “Justice in Broadcasting” to proceedings that concerned the review of a decision made by the Australian Broadcasting Tribunal. His Honour did not specifically address the inter-relationship between the joinder provisions and those relating to who could make an application for review, but it is implicit from the following passage (at 83) that he accepted that there must be one:

In my opinion, the decisions under review relate to a specific matter included in the objects or purposes of Justice in Broadcasting, namely, its aim of "obtaining effective public access to the process of broadcasting". It follows from s 27(2) of the Administrative Appeals Tribunal Act that the association has interests which are affected by the decisions under review. I shall therefore order that Justice in Broadcasting be joined as a party in these proceedings.

17.     While the joinder provision applied by His Honour was that introduced by the 1977 amendments and not the current provision, the only material difference between them is that the latter gives the Tribunal a discretionary power to join a party to proceedings. (See also Re C and Collector of Customs (NSW) (1983) 5 ALN N222; Re Marine World Victoria and Minister for Arts, Heritage and the Environment [1986] AATA 203; Re City of Doncaster and Templestowe and Minister of Community Services [1987] AATA 48. Cf Re Society Without Alcohol Trauma Inc and Australian New Zealand Food Authority [2001] AATA 126 and Re Queensland Investment Corporation and Minister for Transport and Regional Services and Anor [2004] AATA 1025.)

18. The parties were invited to comment on the whether MAA could rely on s 27(2) of the AAT Act. ASTRA submitted that s 27(2) did not act as a deeming provision in respect of s 30(1A) but related only to persons who had applied for review of a decision. In support, it cited the following passage from the judgement of Wilcox J in Arnold (on behalf of Australians for Animals) v Queensland and Anor (1987) 73 ALR 607 at 612:

There are some difficulties of interpretation in s 27. Sub-section (2) relates, inter alia, to unincorporated organisations, deeming their interests to be affected by a decision if the relevant decision relates to a matter included in their objects or purposes. This deeming provision is for the purposes of sub-s (1), which relates to an application “made by or on behalf of any person or persons … whose interests are affected by the decision”. Thus, the argument runs, the “person or persons” envisaged by sub-s (1) may be an unincorporated organisation having particular objects.

There is force in this submission. It seems that s 27 demonstrates an intention to permit an unincorporated organisation to be an applicant for review. If that be the correct view, the reference to “person” in s 30(1)(a) would have to be read as including an unincorporated organisation or association. However, that does not assist the present applicant. Whether deliberately or otherwise, the draftsman of the Act has not made any similar provision in relation to the word “person” in s 30(1)(d). In that paragraph “person” should be given its normal meaning so as to exclude an unincorporated body not recognised as having a separate legal identity.

19. The 1977 amendments were not accompanied by an explanatory memorandum, and it is not therefore possible to discern whether by making those amendments Parliament intended to narrow the class of “persons” who could apply to be joined to proceedings or whether it was a drafting oversight. Sections 27 and 30 both fall within Part IV of the AAT Act. Ordinarily, a phrase, occurring in a number of places in the same statute, is to be construed as having the same meaning each time it occurs: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J. However, that general principle does not apply where there are contrary indications in the statute. While arguable that the phrase “person whose interests are affected” should be given the same meaning where it appears throughout Part IV of the Act, for present purposes I proceed on the basis that MAA cannot rely on s 27(2).

Is MAA a person whose interests “affected by” the reviewable decision?

20.     ASTRA contends that MAA does not have a relevant interest in the decision under review. While it accepts that MAA has an “interest in” the subject matter of the decision in the ordinary sense — namely, an interest or concern in the use of captions in programs transmitted by ASTRA’s members — it contends that MAA does not have an “interest” which might be affected in the necessary statutory sense.

21. ASTRA asserts that MAA would not be entitled to make a complaint alleging unlawful discrimination in the provision of services under s 24 of the Disability Discrimination Act, and does not accordingly possess a relevant interest for the purpose of s 30(1A) of the AAT Act. Section 46F of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) provides that “a person aggrieved” may lodge a complaint with the Commission alleging unlawful discrimination. In Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615, Collier J determined that the applicant, an unincorporated association established to “ensure equitable and dignified access to all premises and facilities”, was not “a person aggrieved” and therefore unable to bring a complaint under the AHRC Act. The applicant, Access For All Alliance (Hervey Bay) Inc, had complained that the respondent Council had allegedly failed to maintain bus stops that met the relevant disability standard and was therefore in breach of the Disability Discrimination Act. Her Honour said (at [52], [53]):

[T]o be a "person aggrieved" by breach of s 32 [Disability Discrimination] Act and the Disability Standards formulated pursuant to s 31, it is necessary to show that the complainant has more than an intellectual or emotional concern in the subject matter of the proceedings. Indeed, it is necessary to show that, if there has been a breach of the legislation (and the Disability Standards) the complainant can show a grievance which will be suffered beyond that of an ordinary member of the public.

53 It is clear in this case that the complainant does have an intellectual or emotional concern in the subject matter of the proceedings. I accept that the purpose of the applicant is to ensure that all members of the Hervey Bay community have access to all premises and facilities in the region. However merely incorporating an association and giving voice to such objects is not sufficient to create standing, or to establish that the association is a "person aggrieved": Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530, Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 67, 77.

22. ASTRA contends that the only persons with an interest that could be affected by the decision under review in these proceedings are persons who could make, or be the subject of, a complaint of unlawful discrimination under s 24 of the Disability Discrimination Act, in the context of the application for an exemption in relation to the provision of captioning, namely:

·Providers of subscription television services

·Hearing impaired recipients of Australian subscription television services.

23. I do not agree with the proposition that whether MAA is a person whose interests are affected should be assessed by reference to whether it constitutes a “person aggrieved” under the AHRC Act. In Allan v Transurban City Link Ltd (2001) 208 CLR 167 the High Court endorsed a movement away from a consideration of the “interests affected” in terms of the common law rules of standing and towards a close analysis of the requirements of the legislation in question. The Court held that the question of whether interests are affected must be answered “by reference to the subject, scope and purpose of [the] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’”. While well established that the interests of a person seeking to be joined must be greater than that of a member of the general public (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 121 ALR 373 per Davies J at 382), that MAA might not be able to initiate a complaint under the AHRC Act is not necessarily fatal, as suggested by ASTRA.

24.     The approach endorsed by the High Court in Allan v Transurban City Link Ltd requires close examination of the objects and scope of the Disability Discrimination Act.

25. The objects of the Disability Discrimination Act include the elimination, as far as possible, of discrimination against persons on the ground of disability in the areas of the provision of services and 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 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.

26.     The decision under review concerns whether a temporary exemption should be granted to members of ASTRA in respect of the provision of caption services on transmitted programs. As ASTRA correctly points out, the decision under review does not relate to captioning “at large” or the broader issue of the provision of audio- visual services to persons who suffer disabilities.

27.     MAA is not, and does not purport to be, a body representing persons with hearing impairment. Its website carries the following description:

[MAA] works to improve access to audio-visual media, such as TV, cinema, DVDs and new media, by providing information about technological solutions that make audio-visual media accessible to people with disabilities. These solutions include audio description, captioning and mainstream new media technologies. MAA also supports improvements in media access in Australia towards international best practice by identifying mainstream technological solutions and cost-effective ways to promote and implement them.

28. To this end, MAA works collaboratively with consumer organisations, Government and industry in Australia and internationally. The objects stated in its Constitution are:

(a) the establishment and maintenance of “an organisation for the provision and promotion of information services principally but not exclusively for the benefit of people who suffer disability for health, education, social, financial or similar reasons” and

(b) the establishment and maintenance of “an organisation for the provision and promotion of media access services for the benefit of individuals with impaired capacity to access such services”.

29. In my view, MAA plainly has a relevant interest in the decision under review. It is an organisation established to provide and promote information services and media access for disabled people. It has an interest in promoting the objects of the Disability Discrimination Act, particularly in the area of media. While, as pointed out by ASTRA, MAA’s objects are broader in scope than the decision under review, it does not follow that it cannot have a relevant interest in the narrower issue under review. While MAA cannot point to any detriment or loss it might suffer as a result of the outcome of these proceedings, in my view the approach endorsed by the High Court in Allan v Transurban City Link Ltd means that this is not a prerequisite to establishing a relevant interest.

30.     For these reasons, I am satisfied that ASTRA is a person whose interests are affected by the decision under review.

should the power to join MAA be exercised?

31. The final issue to be determined is whether the discretionary power conferred by s 30(1A) of the Act to join MAA should be exercised. In making that decision, I must take into account the interests of all parties, and the overriding requirement that these proceedings be conducted in a fair, just, efficient, informal and timely manner: s 2A of the AAT Act.

32.     ASTRA contends that the application should be refused because among other things, MAA has not clarified the nature of the role it proposes to play in these proceedings if its application for joinder is granted. It argues that MAA’s view of its role has not been clearly articulated and would appear to be more in the nature of an expert witness or as amicus curiae. ASTRA contends that absent a clear understanding of what role MAA intends to play, it is not possible to predict what impact its involvement could have on the conduct of the proceedings.

33. ASTRA has a legitimate concern that the involvement of an additional party may extend the length of the hearing and increase its costs in a jurisdiction where each party must bear their own costs. I also accept that without further information, it is difficult to determine precisely what impact MAA’s involvement will have on the conduct of the proceedings. Ultimately, however, the conduct of the proceedings is a matter for the Tribunal and not the parties: s 33 of the AAT Act.

34.     There are a number of factors that favour MAA being joined.  First, the respondent Commission consents to the MAA being joined. Second, there is no evidence that MAA has an improper motive for seeking to be joined and nor is this suggested. Third, MAA made its application to be joined within two weeks of ASTRA making its application for review. Fourth, the proceedings are not advanced. Apart from the issue of joinder, no other issue has been considered by the Tribunal. In accordance with the General Practice Direction, issued on 26 March 2007, the matter has been listed for a first conference which, while imminent, is yet to be held. At this stage, the matter has not listed for any other alternative dispute resolution processes or allocated hearing dates.

35.     While there is a risk that MAA’s involvement might extend the length of proceedings and increase ASTRA’s costs, I am not satisfied that those factors outweigh those that favour MAA being joined. For these reasons, I make the order sought.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ...................................[sgd].......................................
  Associate to Senior Member Britton

Date of Hearing  29 November 2010
Date of written submissions:   14 December 2010
Date of Decision:  21 December 2010
Counsel for the Applicant:  Ms K Eastman
Solicitor for the Applicant:  Minter Ellison
Solicitor for the Respondent:                      Australian Human Rights Commission
Representative for the Joined Party:        Mr C Mikul