Re: TOM HARRIS
And: QUENTIN BRYCE, SEX DISCRIMINATION COMMISSIONER and HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION
No. D G12 and 15 of 1992
FED No. 158
Number of pages - 21
Administrative Law
(1993) 113 ALR 726
(1993) 41 FCR 388
(1993) 30 ALD 833 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)
CATCHWORDS
Administrative Law - sexual discrimination - joint Commonwealth and State project - project for improvement of education - whether project a "Commonwealth program" - decision to appoint Coordinator of project - nature of decision - whether made by officer of Commonwealth - whether reviewable under Judicial Review Act.
Sex Discrimination Act 1984,
Judiciary Act 1903
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1991) 109 ALR 490 at 491
HEARING
SYDNEY, 1-2 December 1992
#DATE 25:3:1993
Counsel for the applicant: T.J. Pauling QC with R.J. Webb
Instructed by: Solicitor for the Northern Territory
Counsel for the respondents: R.S. McColl
Instructed by: Bronwyn Scheelbeek
ORDER
THE COURT ORDERS AS FOLLOWS:
1. Applications dismissed.
2. Applicant to pay respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
MORLING J. The applicant was at all relevant times the Minister for Education for the Northern Territory. As such he was responsible for the planning, development and administration of education in the Territory.
In 1985 a proposal was made by the South Australian Minister for Education that the Commonwealth, Northern Territory, Western Australian and South Australian Governments should co-ordinate plans for the provision of education in Pitjantjatjara schools. Such schools are located in remote areas in the northern part of South Australia, the eastern part of Western Australia, and in that part of the Northern Territory in the general vicinity of Uluru.
In the years following 1985 there was much correspondence between the four Governments as to the desirability of, and means of implementing, the South Australian Government's proposals. It will be necessary to refer to this correspondence later in these reasons. On 27 July 1988 a document known as the Tri-State Ministerial Agreement was signed. The agreement provided, inter alia, for the appointment of a Tri-State Management Board which would appoint a Coordinator of the Tri-State project. Subsequently a person was appointed to the position of Coordinator and this appointment has given rise to the present proceedings.
Ms Claire Vallance applied for the position of Coordinator but her application was unsuccessful. She complained to the Sex Discrimination Commissioner ("the Commissioner") appointed pursuant to s 96 of the Sex Discrimination Act 1984 ("the Act"). The Commissioner wrote to the applicant notifying him of Ms Vallance's complaint that she had been discriminated against in that she had not been appointed to the position of Coordinator. The Commissioner stated that the complaint appeared to involve, inter alia, s 26 of the Act. Sub-section 26(1) provides, inter alia,…
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- AGLC
- Harris, T. v. Bryce, Q., Sex Discrimination Commissioner & Anor [1993] FCA 158 ((1993) 113 ALR 726; (1993) 41 FCR 388; (1993) 30 ALD 833)
- Case
- [1993] FCA 158
- Decision Date
CaseChat Overview and Summary
The central legal issue for the court was to determine whether the decision to appoint the Coordinator was a "Commonwealth program" within the meaning of the Judicial Review Act, and consequently, whether the decision was made by an officer of the Commonwealth, rendering it reviewable. Additionally, the court had to consider the nature of the decision and whether it was of a kind that could be subject to judicial review. The court needed to examine the interplay between the Commonwealth's and State's roles in the project and how this affected the reviewability of the decision.
The court found that the decision to appoint the Coordinator was not a "Commonwealth program" as it was a joint project involving both the Commonwealth and the State. The court held that the decision was made by officers of the State and, therefore, was not reviewable under the Judicial Review Act. The court concluded that the nature of the decision did not fall within the scope of Commonwealth decisions that could be subject to judicial review. The court also found that the decision was not of a kind that could be reviewed as it did not involve the exercise of a statutory power or discretion by the Commonwealth.
The court dismissed the application and ordered that the applicant pay the respondents' costs. The reasoning and outcome of the case were grounded in the interpretation of the Judicial Review Act and the delineation of the respective roles of the Commonwealth and the State in the project. The decision underscored the importance of the nature of the decision and the identity of the decision-maker in determining the scope of judicial review.
Orders
Orders of the court
THE COURT ORDERS AS FOLLOWS:
1. Applications dismissed.
2. Applicant to pay respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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