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Commonwealth v Sex Discrimination Commissioner

Commonwealth v Sex Discrimination Commissioner

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Case Copied 17 December 1998 31 min read

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FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 - Sex Discrimination Act 1984 (Cth) (“the Act”) – review of decision of Sex Discrimination Commissioner referring a complaint to Human Rights and Equal Opportunity Commission (“the Commission”) – necessity for a complaint under the Act to identify the respondent – review of a decision of the Commissioner to refuse an application that a direction be made that the applicant not appear at the inquiry – distinction between an act of which a complaint is made and the matter to which the act relates – whether jurisdiction of the Commission dependent on terms of the complaint

PRACTICE AND PROCEDURE – whether office holder ought to be named in a proceeding

WORDS AND PHRASES – “act”, “matter”

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 13, 17
Sex Discrimination Act 1984 (Cth) ss 5, 26, 28B(1), 48, 49, 50, 52, 52B, 55, 57, 59, 62, 64, 73, 77, 81, 83A, 84B, 84C, 96, 103 105, 106
Acts InterpretationAct 1901 (Cth) s 33A(e)
Judiciary Act 1903 (Cth) s 39B

Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93, considered
Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627, cited
Langley v Niland [1981] 2 NSWLR 104 at 107-108, cited
Re NSW Corporal Punishment in Schools Case (1986) EOC 92-160, cited
Shadforths Limited v Human Rights Commission (1991) 32 FCR 303 at 315, cited
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 456 at 467, cited
John v Connor (1992) 107 ALR 465 at 475, considered
Harris v Bryce (1993) 41 FCR 388, considered
Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 725, considered
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, considered

COMMONWEALTH OF AUSTRALIA v SEX DISCRIMINATION COMMISSIONER, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, LEANNE ELLIOTT, DR PREM NANDA and TERRACE MEDICAL CENTRE
NG 344 of 1998

BRANSON J
SYDNEY
17 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 344 OF 1998

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPLICANT

AND:

SEX DISCRIMINATION COMMISSIONER
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

LEANNE ELLIOTT
THIRD RESPONDENT

DR PREM NANDA
FOURTH RESPONDENT

TERRACE MEDICAL CENTRE
FIFTH RESPONDENT

JUDGE(S):

BRANSON J

DATE OF ORDER:

17 DECEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

It be declared that the referral by the Acting Sex Discrimination Commissioner, by her delegate, to the Human Rights and Equal Opportunity Commission (“the Commission”) of the matter to which the alleged unlawful acts referred to in the memorandum dated 8 May 1996 signed by the third respondent relate did not give rise to jurisdiction in the Commission to hold an inquiry into any complaint by the third respondent against the applicant or any officer, employee or agent of the applicant.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal…

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: [1998] FCA 1607
Decision Date: 17 DECEMBER 1998

CaseChat Overview and Summary

The matter before the court involved the Commonwealth and the Sex Discrimination Commissioner. The dispute centred around the jurisdictional authority of the Human Rights and Equal Opportunity Commission in handling a complaint against the Commonwealth. The third respondent had raised allegations of unlawful acts, which were referred to the Commission by the Acting Sex Discrimination Commissioner. The Commonwealth contested the Commission's jurisdiction to hold an inquiry into the complaint, arguing that the referral did not provide the necessary jurisdictional basis.

The primary legal issue was whether the referral to the Commission by the Acting Sex Discrimination Commissioner, or her delegate, vested the Commission with the authority to conduct an inquiry into the complaint. The court had to determine if the referral was sufficient to establish jurisdiction under the applicable legislative framework. The core of the argument was whether the referral process complied with the requirements necessary for the Commission to initiate an inquiry.

In resolving the matter, the court closely examined the legislative provisions governing the referral and jurisdictional powers of the Commission. It found that the referral did not explicitly confer the requisite jurisdiction on the Commission to hold an inquiry into the complaint. The court concluded that the referral, as it stood, did not meet the statutory criteria needed to vest the Commission with the authority to proceed with an investigation. Therefore, the referral did not establish the Commission's jurisdiction in the matter. Consequently, the court declared that the Commission did not have jurisdiction to hold an inquiry into the complaint.

Orders

Orders of the court

It be declared that the referral by the Acting Sex Discrimination Commissioner, by her delegate, to the Human Rights and Equal Opportunity Commission (“the Commission”) of the matter to which the alleged unlawful acts referred to in the memorandum dated 8 May 1996 signed by the third respondent relate did not give rise to jurisdiction in the Commission to hold an inquiry into any complaint by the third respondent against the applicant or any officer, employee or agent of the applicant.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 344 OF 1998

BETWEEN:	COMMONWEALTH OF AUSTRALIA APPLICANT
AND:	SEX DISCRIMINATION COMMISSIONER FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT LEANNE ELLIOTT THIRD RESPONDENT DR PREM NANDA FOURTH RESPONDENT TERRACE MEDICAL CENTRE FIFTH RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		17 DECEMBER 1998
WHERE MADE:		SYDNEY