Kowalski v Domestic Violence Crisis Service Inc

In Kowalski v Domestic Violence Crisis Service Inc, the applicant, Mr Kowalski, sought judicial review of a decision by the Human Rights and Equal Opportunity Commission (the Commission) to dismiss his complaint of discrimination against the Domestic Violence Crisis Service Inc (DVCS). The dispute spanned over a decade, originating from an incident in 1990 where Mr Kowalski alleged that DVCS officers treated him less favourably than they would have treated a person of the opposite sex. The applicant filed a complaint under the Sex Discrimination Act 1984 (Cth), which was initially dismissed by the Commission on the basis that his treatment was not due to his gender or marital status. Following a judicial review by Finn J, the matter was remitted back to the Commission for further consideration. The Commission, constituted by Commissioner Innes, dismissed the complaint again on 26 July 2000, leading Mr Kowalski to seek further judicial review.

The central legal issue in this case was whether the Commission had the jurisdiction to hear Mr Kowalski's complaint after the Human Rights Legislation Amendment Act 1999 (Cth) transferred certain powers of the Commission to the Federal Court. Specifically, the court had to determine if the absence of transitional provisions in the Act meant that the Commission could still hear and determine complaints remitted by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mr Kowalski argued that the absence of such provisions meant the Commission should apply the unamended Sex Discrimination Act to his case. The DVCS, on the other hand, contended that the new Act should apply, and that any determination made by the Commission would be unenforceable.

The court held that the Commission had jurisdiction to hear Mr Kowalski's complaint under the unamended Sex Discrimination Act, as the transitional provisions in the Human Rights Legislation Amendment Act did not explicitly address the situation of complaints remitted by the Federal Court. The court found that the lack of specific transitional provisions did not manifest an intention to alter the jurisdiction of the Commission in such cases. Consequently, the court allowed Mr Kowalski's application, set aside the Commission's decision, and directed the President of the Commission to terminate the complaint and issue a notice of termination. Additionally, the court granted Mr Kowalski 28 days to make any further application to the Court or the Federal Magistrates Court regarding his complaint against the DVCS. Each party was ordered to bear its own costs.