Bullard v Anti-Discrimination Tribunal - [2020] TASSC 15

[2020] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Bullard v Anti-Discrimination Tribunal [2020] TASSC 15

PARTIES:  BULLARD, Tim (Secretary of the Department of Education)
  v
  ANTI DISCRIMINATION TRIBUNAL

MORGAN, Jenni

FILE NO:  2659/2019
DELIVERED ON:  19 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  25 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Review of decision – Out of time complaint not accepted by Commissioner – No tribunal jurisdiction to review Commissioner decision – Tribunal decision invalid – Appeal upheld.
Anti Discrimination Act 1998 (Tas), ss 63, 64, 65 and 16(l).
Judicial Review Act 2000, s 17(2)(c).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54; Abblitt v The Anti-Discrimination Commissioner [2016] TASSC 12;referred to.
Aust Dig Human Rights [53]

Administrative Law – Judicial review – Reviewable decisions – Review by Anti-Discrimination Tribunal of Commissioner's decision to not accept a complaint – No jurisdiction – Appeal is allowed – Tribunal decision set aside.

Aust Dig Administrative Law [1098]

REPRESENTATION:

Counsel:
             Applicant:  M O'Farrell SC and D Osz
             First Respondent:  No appearance
             Second Respondent:  A Walker
Solicitors:
             Applicant:  Solicitor-General
             First Respondent:  No appearance
             Second Respondent:  In person

Judgment Number: [2020] TASSC 15
Number of paragraphs: 56

Serial No 15/2020
File No 2659/2019

TIM BULLARD (Secretary of the Department of Education)
v ANTI DISCRIMINATION TRIBUNAL and JENNI MORGAN

REASONS FOR JUDGMENT GEASON J

19 May 2020

On 18 December 2018 the second respondent lodged a complaint with Equal Opportunity Tasmania seeking redress under the Anti-Discrimination Act 1998 (the Act) for conduct which was alleged to breach the Act.
The complaint alleged that after a lengthy and stable career within the Education Department working as a support teacher at a primary school, a person referred to as "G" was appointed principal. It was alleged a number of incidents followed his appointment which caused the complainant to feel that she was neither valued nor respected. The alleged conduct was constituted by a number of comments and management actions by G, culminating in her being asked to move to another school or occupy a different role within the school. Aged between 59 and 61 years over the period of the alleged conduct, the complainant asserted G's conduct occurred on the basis of her age and industrial activity.
G left the school in 2016. The complaint alleged ongoing discrimination by reason of the continued presence of "the senior team" at the school.
The complaint included allegations of discrimination by the Education Department. That conduct was described by the Tribunal in the decision, the subject of this appeal, as "less well formulated" but made on the basis of its failure to take any action following complaints about G's conduct.
On 19 September 2019 the Anti-Discrimination Commissioner determined that "the complaint is misconceived on the basis that it is out of time."
The complainant, the second respondent in these proceedings, sought a review of that decision in the Anti-Discrimination Tribunal (the Tribunal).
The Tribunal determined that the Commissioner's decision was incorrect and referred it back to her "for investigation as to whether it is reasonable or otherwise for the Commissioners to accept the complaint as a complaint otherwise out of time."
The Tribunal did not notify the applicant of its review of the decision of the Commissioner. It afforded him no opportunity to be heard.
The applicant moves the Court to review the Tribunal's decision. The Tribunal submits to the jurisdiction of the Court. The second respondent participated in these proceedings through counsel.
There are four grounds of appeal. Each asserts an error of law.
The first ground raises a threshold question. That question is whether the Tribunal's jurisdiction under s 65 of the Act to review the Commissioner's decision to reject a complaint for the reason specified under s 64(1) of the Act, empowers it to review the Commissioner's decision under s 63(2) to not accept a complaint made after the 12 month limitation period contained in s 63(1).
It is the applicant's contention that the Tribunal has no such jurisdiction. This ground is expressed as follows:
"The First Respondent did not have any jurisdiction to review the Anti-Discrimination Commissioner's decision, it being a decision in substance under s 63(2) of the Anti- Discrimination Act 1998 not to accept a complaint made after the 12-months limitation under s 63(1) had expired (s 17(2)(c) of the Judicial Review Act 2000)."
The remaining grounds of appeal are these:
"2 A breach of natural justice happened in that the First Respondent failed to:
(a) notify the Applicant of the hearing before the First Respondent; and
(b)invite and hear submissions from the Applicant (s 17(2)(a) of the Judicial Review Act 2000).
3(a) That the First Respondent made an error of law in that it had no power to make an order that the Anti-Discrimination Commissioner re-exercise her powers under s 63 of the Anti-Discrimination Act 1998 (s 17(2)(f) of the Judicial Review Act 2000).
(b)That the decision was not authorised by s 72 of the Anti-Discrimination Act 1998 (s 17(2)(d) of the Judicial Review Act 2000).
4That the First Respondent made an error of law in that the making of its decision was an improper exercise of the power conferred by s 65(2) of the Anti-Discrimination Act 1998 because it took into account irrelevant considerations concerning the merits of the complaint made by the Second Respondent (ss 17(2)(e) and 20(a) of the Judicial Review Act 2000)."
For the reasons which follow, ground one should be determined in the applicant's favour. This conclusion obviates the need to consider the remaining three grounds which are expressed in the alternative. I will however say something about them.

Time for bringing a complaint

Section 63(1) of the Act imposes a limitation period within which a complaint must be made. Subsection (2) allows for its relaxation in specific circumstances. The section says:
"63      Time limit on complaints
(1)     A complaint is to be made within 12 months after the alleged discrimination or prohibited conduct took place."
(2)     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 the body of her complaint the second respondent claimed that it was made within 12 months of the last incident of discrimination. The Commissioner rejected this, and determined that the conduct ended in mid-2016.
Section 63(2) of the Act was thus engaged.
In dealing with s 63(2), the Commissioner determined that "a satisfactory reason for the entire delay has not been provided. ... as such I am not persuaded to exercise my discretion to extend time in the Act."
That conclusion resulted in an order in these terms:
"I, Sarah Bolt, Anti-Discrimination Commissioner, have decided to reject this complaint under s 64(1)(a) of the Anti-Discrimination Act 1998 (Tas) (the Act) because the complaint is misconceived on the basis that it is out of time."
The description of a complaint as "misconceived" in circumstances where it is out of time, is inapposite. The Commissioner has no doubt sought to employ the language of s 64 of the Act. Presumably the Commissioner has considered it necessary to bring the decision within its terms to comply with the Act.
The Tribunal thought that to be the case too as the following passage reveals:
"13 The statutory scheme provided for in the Act is interesting when viewed in the current context. The Act requires complaints to be made within 12 months of the conduct alleged to be in breach of the Act occurring (s63(1)). Nevertheless the Commissioner retains a discretion to accept a complaint made outside of the 12 month time limitation if satisfied it is reasonable to do so (s63(2)).
14 The Act prescribes the bases upon which the Commissioner may reject a complaint (s64). Those bases do not include the complaint being made outside of the 12 month time limit set in s63. One ground for rejection provided for in s64 is that used by the Commissioner in the decision under review, specifically that the complaint, in the opinion of the Commissioner, is misconceived (s64(1)(a)).
15 The mere fact that the complaint is wanting for time does not of itself render it misconceived. Indeed the Act enables the Commissioner to accept and investigate complaints made outside of the time limit when reasonable to do so."
The Tribunal referred to the decision of Pearce J in Abblitt v The Anti-Discrimination Commissioner [2016] TASSC 12 at [25], discussing the "interaction between s 63 and s 64 of the Act":
"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)."
On that basis the Tribunal said: "If viewed as a rejection, the refusal of the Commissioner to not accept a complaint filed in respect of conduct occurring in excess of 12 months previously, would enliven the power to seek review under s65 of the Act. To put it another way the capacity of an applicant to seek the Tribunal's review arises following rejection of a complaint for want of time, as well as a rejection on one or other of the grounds expressed in s64."
In respect of a complaint which relies on conduct occurring more than 12 months before it is lodged, and for which an extension of time is not granted under s 63(2), the Tribunal has described the result as a rejection of the complaint. This is consistent with the observations in the passage quoted from Abblitt (above). The applicant submits that it is wrong to classify such result as a rejection. I agree.
Section 63 of the Act prescribes a limitation period which governs the acceptance of a complaint. A limitation period is arbitrary and fixed by parliament on policy grounds. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 553 McHugh J explained this: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated."
Section 63(2), to which I have already referred, ameliorates the impact of the limitation period by empowering the Commissioner to relax the requirement in s 63(1), and to accept a complaint that is otherwise out of time. That power is subject to the Commissioner determining that the circumstances explaining the delay, make it reasonable to do so.
The applicant's contention is that unless the Commissioner extends the time for lodging a complaint relating to conduct that occurred more than 12 months before the complaint is made, there is no complaint. Since there is no complaint, it submits that it is inapposite to speak in terms of a complaint being rejected; there is nothing to be rejected. The consequence is that s 64 of the Act is not engaged, and, in turn, neither is s 65.
Section 64 deals with the rejection of complaints. For "complaints" read "a valid complaint", being one made within the limitation period imposed under s 63:
"64 Rejection of complaints
(1) The Commissioner may reject any complaint if —
(a) in the opinion of the Commissioner, it is trivial, vexatious, misconceived or lacking in substance; or
(b) the complaint does not relate to discrimination or prohibited conduct; or
(c) the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or
(d) a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or
(e) in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or
(f) the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or
(g) in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority; or
(h) in the opinion of the Commissioner, the complaint relates to conduct that is within the scope of an exemption granted under Division 11 of Part 5.
(2)The Commissioner is to decide whether to accept or reject a complaint within 42 days after its receipt.
(3)The Commissioner is to notify the complainant of the decision to accept or reject the complaint as soon as practicable."
The submission is that s 65 cannot be engaged unless the complaint is rejected under s 64 of the Act. In such case, s 65(2) provides that a person may apply to the Tribunal for a review of the rejection.
Section 64(2) and (3) refer to the acceptance of a complaint (see above at [28]). The applicant submits that "accept" is used differently as between s 63 and s 64(2) and (3). In s 64 its use is in respect of a complaint which is not rejected for one of the reasons in s 64(1).
If a complaint reaches the point where it is being considered against the grounds set out in s 64, the question has progressed beyond its validity under s 63. It has become one of deciding whether there is a basis for rejecting it on grounds relating to its content. If there is no such basis, it must be accepted. The distinction is between accepting the complaint complying with the limitation period, and considering whether because of the substance of the complaint it should be rejected.
In other words, s 63 is about procedural compliance, whereas s 64 involves a substantive assessment of a complaint which has otherwise satisfied the requirements for procedural validity. "Accept" as used in the Act, takes its meaning from the context in which it is used.
This proposition is demonstrated from other instances of its use in the Act. Sections 60(3) and 66(1) of the Act are referred to by the applicant.
Section 60 provides that the Commissioner may accept a complaint from a child if satisfied the child has sufficient maturity to make the complaint. If the Commissioner is not so satisfied the substance of the complaint may not be considered, and the complaint is not accepted. This process does not engage s 64 (1) of the Act: the maturity of a child complainant is not one of the matters specified in that section as a basis for rejecting a complaint. Rather, "accept" in s 60(3) involves a preliminary assessment of the complainant’s maturity. It is not concerned with the substance of the complaint. In contrast, the notion of acceptance as used in s 64 of the Act, is concerned with the content or substance of a complaint, and it means the opposite of rejection.
Section 66 of the Act provides that the Commissioner may accept a complaint from a person who has previously agreed with another not to complain, if the Commissioner reasonably believes that it is fair to do so. The assessment of the fairness of accepting such complaint requires consideration of the matters in s 66(2) of the Act. It is not concerned with the content or substance of the complaint. It does not engage s 64 (1).
In each of these respects the concept of accepting a complaint is akin to the Commissioner exercising a gatekeeper role. It is only once a complaint passes through that gate that the issues raised in the complaint fall to be considered. It is at this stage that a complaint is capable of rejection.
Finally as to this, the applicant submits that the words "accept or reject" as used in s 64 each have different legal consequences. When the complaint is rejected, s 65 is engaged and certain obligations follow. In those cases where the complaint is accepted, s 67 is applicable, and the respondent must be notified. This might be contrasted with the situation under s 63, where provided a respondent in respect of whom an out of time complaint is lodged is afforded an opportunity to be heard, there is no further requirement to give notice of the determination under s 63.
I accept the applicant's submissions. I hold that a complaint that is not accepted under s 63 of the Act, is incapable of rejection; s 64 is not engaged when a complaint is not accepted under s 63. This conclusion accords with the scheme of the Act. The Commissioner need not therefore employ the language of s 64 when a complaint is not accepted under s 63.
The Act was held to be beneficial legislation in State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54. A beneficial construction makes no difference to the result on this point.
A complainant seeking to challenge the Commissioner's determination not to accept a complaint that relates to conduct that occurred more than 12 months before, must do so by way of judicial review to this Court.
For these reasons, the Tribunal's jurisdiction was not engaged, and its decision is invalid.
It is not necessary to consider the other grounds. However, I will do so briefly.
Ground 2 arises from the Tribunal's failure to notify the Education Department that it was proceeding to a review of the Commissioner's decision not to accept the second respondent's complaint. This amounted to a failure to afford the Education Department procedural fairness. In consequence of that failure the Education Department was not heard. In Abblitt (above) the failure to afford a respondent procedural fairness also arose. The Tribunal referred to that case but was apparently oblivious to its own failure to afford the Education Department a right to be heard.
The existence of a duty to afford procedural fairness in exercising statutory powers capable of effecting the rights of others, is rarely challenged. As Mason J said in Kioa v West (1985) 159 CLR 550 at 584:
"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."
In Kioa Gibbs CJ at 563 said that the "fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power". The Tribunal believed it was conducting a review under s 65(2) of the Act. Section 72(3) of the Act empowers the Tribunal to deal with a complaint as if it were an inquiry, in circumstances where it is satisfied that the dismissal of a complaint by the Commissioner was not a correct decision. Self-evidently that procedure might affect the interests of the Education Department.

The content of the duty is more frequently in focus: Kioa (above) at 585. It depends on the circumstances of the matter, including the statutory context. Here it included giving notice of the Tribunal’s intention to proceed to conduct the review, and affording the applicant a reasonable opportunity to present a case on that review.
Perhaps aware of its difficulty in this respect, the second respondent says if such a duty existed, the proper course is to remit the matter to the tribunal. In light of the Court's conclusion on ground 1, that is not possible, but it would have been an unsatisfactory response in any event.
The failure to afford procedural fairness to the applicant constitutes a jurisdictional error: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 per Edelman J at [127]. It vitiates the Tribunal's decision. I uphold ground 2.
By ground 3 the applicant contends that the Tribunal did not have the power to make the order it purported to. That order was:
"I order accordingly that the complaint be referred back to the Commissioner for investigation as to whether it is reasonable or otherwise for the Commissioner to accept the complaint as a complaint otherwise out of time."
Section 72 of the Act identifies the possible consequences of a review of the rejection or dismissal of a complaint. It provides:
"72 Review of rejection or dismissal
(1)If, on reviewing the rejection or dismissal of a complaint, the Tribunal is satisfied that the Commissioner made a correct decision in rejecting or dismissing the complaint, the complaint lapses.
(2)If, on reviewing the rejection of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in rejecting the complaint, the Tribunal is to refer the complaint back to the Commissioner for investigation.
(3)If, on reviewing the dismissal of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4."
Section 72 circumscribes the orders which may be made consequent upon such review. There was no power to remit the matter to the Commissioner in the way the Tribunal purported to. The order is therefore invalid. Ground 3 succeeds.
Ground 4 relates to the matters to which the Tribunal had regard when it undertook the review.
The Tribunal referred to another decision of the Tribunal, R v S [2005] TASADT 1, and summarised the principles articulated in that decision. One of those principles relates to the relevance of the merits of the complaint to the exercise of the discretion to extend the time under s 63. At [32] of R v S the Tribunal said "that it is well established that the merits of the complaint should not be reviewed or used as a basis for the out of time decision", referring to Buderim Ginger Ltd v Booth [2002] QCA 177, [2003] 1 Qd R 147. In that case Atkinson J, with whom McPherson JA agreed at [9], said at [23]:
"[23] Before the discretion to accept the complaint can be exercised, as I have observed, the Commissioner must firstly be satisfied, as she was, that it is a complaint of an alleged contravention of the Anti-Discrimination Act. The Commissioner need not look further at the merits of the complaint in the consideration of whether 'good cause' has been shown under s 138. The Commissioner has a separate duty set out in s 139 of the Act to reject a complaint when of the reasonable opinion that the complaint is:
(a) frivolous or vexatious; or
(b) misconceived or lacking in substance."
If the Tribunal had regard to the merits of the complaint as relevant to the exercise of the discretion to extend time, it had regard to irrelevant matters. The duty to have regard only to relevant considerations goes to the legality of the exercise of the power, and is concerned with compliance with the rules governing the exercise of power: QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 at [196]. Having regard to an irrelevant matter in a way that affects the exercise of the power constitutes an error of law: Minister for Immigration and Ethnic Affairs v Yusuf [2001] HCA 30, 206 CLR 323, 350 [80], per McHugh, Gummow, and Hayne JJ, with whom Gleeson CJ agreed.
The law is not in doubt. The question is whether the Tribunal in fact had regard to the merits of the complaint. Its statement that the merits of the complaint were relevant to the exercise of the discretion, suggests that it has. But after a careful reading I do not think the Tribunal has gone further than satisfying itself the Act was engaged. Assuming its review to have been a lawful exercise of power, it was not irrelevant to the task to consider whether the complaint alleged matters legally capable of constituting breaches of the Act. To my mind the Tribunal's assessment at [22] makes this clear. All it is saying is that there is nothing before it which identifies any conduct that would satisfy the definition of industrial activity in s 3 of the Act. Similarly, the observation at [23] that there is "merit in the complaint … obviously not yet investigated", goes no further than identifying the existence of a legal basis for complaint. The third observation that there is "little merit" in the claim against the Department of Education goes further perhaps, but I not do not think it has been established that the Tribunal took the merits into account in an impermissible way. I dismiss ground 4.
The appeal is allowed. The decision of the Tribunal is set aside.