Michael Firestone v the Australian National University (Discrimination Act 1991)

[2009] ACAT 27

AUSTRALIAN CAPITAL TERRITORY

CIVIL AND ADMINISTRATIVE TRIBUNAL

MICHAEL FIRESTONE v THE AUSTRALIAN NATIONAL UNIVERSITY (Discrimination Act 1991) [2009] ACAT 27

AA09/16

Catchwords: DISCRIMINATION JURISDICTION – Appeal against a decision of the ACT Discrimination Tribunal - the President dismissed all of the appellant's claims against the respondent under the Discrimination Act 1991 – validity of the appeal – no jurisdiction

Discrimination Act 1991 (ACT)

ACT Civil and Administrative Tribunal Act 2008

Tribunal:Mr C.G. Chenoweth, Presidential Member

Date of Order           :          28^th August 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL AND ADMINISTRATIVE TRIBUNAL   )          No: AA 16 of 2009

MICHAEL FIRESTONE

(Appellant)

AND

THE AUSTRALIAN NATIONAL UNIVERSITY

(Respondent)

DECISION

Tribunal:                   Mr C.G.Chenoweth, Presidential Member

Date of Order:          28^th August 2009

Decision:

1.   Upon being satisfied that it does not have jurisdiction to determine this application, the Tribunal orders that the application be dismissed.

……………………………..

Presidential Member

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL AND ADMINISTRATIVE TRIBUNAL   )          No: AA 16 of 2009

MICHAEL FIRESTONE

(Appellant)

AND

AUSTRALIAN NATIONAL UNIVERSITY

(Respondent)

REASONS FOR DECISION

1. This is an appeal against a decision of the ACT Discrimination Tribunal (President, Mr. R Cahill) in matters DT 405/2003 and DT 418/2005. The judgment of the President is dated 9 February 2009. The decision of the Discrimination Tribunal was in respect of a number of claims of discrimination made by the appellant against the respondent. In the decision, the President dismissed all of the appellant's claims against the respondent under the Discrimination Act 1991.

2. On 6 July 2009, the appellant lodged an Application for Appeal from an ACAT Decision. The respondent objected to the validity of the appeal on the basis that this Tribunal had no jurisdiction to consider it, or make any decision arising from the appellant’s purported appeal. The matter was listed for hearing on the interlocutory issue as to whether or not this Tribunal had jurisdiction to consider the matter.

3. In material handed to the tribunal at the hearing (Exhibit A) and in his opening submission the appellant based his argument that there was jurisdiction to consider the appeal on two grounds. Firstly, that the hearing before the Discrimination Tribunal was so defective as to be void and therefore there had been no proper hearing (and therefore, no decision) at all, and secondly that the decision that was made was a decision of this tribunal, which could be appealed. He maintained that if either argument was accepted, the matters the subject of the hearing in the Discrimination Tribunal still awaited a proper hearing by this tribunal.

4. In the hearing, I explained to the appellant that the issue of jurisdiction was one which had to be decided before any other issues were considered. If this tribunal did not have jurisdiction, then that would be the end of the matter. Jurisdiction could not be conferred on the tribunal by agreement between the parties, even if such agreement existed, which it clearly did not. The tribunal could only act in accordance with the provisions of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”) and the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations (“the Regulations”.) In the absence of any jurisdiction to consider the matter, the decision of the President of the Discrimination Tribunal would stand, subject to any right of appeal that the appellant may have under the Discrimination Act.

5. The appellant argued that because the functions of the Discrimination Tribunal generally have now been taken over by this tribunal, then decisions of the Discrimination Tribunal should be able to be appealed within the appellate division of this tribunal, on questions both of fact and law. He also referred to provisions of the Human Rights Act 2004 and the Legislation Act 2001, to support a proposition that the ACAT Act should be given a wide interpretation to enable the matter to be heard. In the exhibit, he also provided material on the Convention on the Rights of Persons with Disabilities, other material relating to human rights and a medical opinion to indicate his status. It is not necessary to discuss this material in any more detail. I have reviewed all of the material in the exhibit, but it does not assist on the threshold question of jurisdiction.

6. The decision of the President under the Discrimination Act was that the complaints be dismissed, on the ground that the complaints had not been substantiated. This decision was supported by an extensive set of reasons, commenting on the history of the matter and the evidence that had been given at the hearings. It is clear from the reasons for decision that the matter had been before the tribunal on a number of occasions.
   
   
7. The appellant contended that as some of these had been referred to as hearings for direction or for resumed hearings, they could not be regarded as hearings on the discrimination issues raised in his original application.  If these were not proper hearings, then there could not have been a proper decision. I reject this proposition. The reasons for the decision indicate that the matter had been argued fully before the Discrimination Tribunal, and that the appellant had been present at those hearings.

8. The respondent argued that this tribunal's appellate jurisdiction did not extend to an appeal against a decision of the Discrimination Tribunal. A written outline of submissions was lodged with this Tribunal prior to the hearing, and a copy had been made available to the appellant.

9. The appellate jurisdiction of this tribunal is provided by section 79 of the ACAT Act which provides:

(1) This section applies if –

(a)the tribunal has decided an application (the original application); and

(b)the original application was not an appeal from a decision by the tribunal.

(2) a party to the original application may, by application, appeal the decision       to the tribunal on a question of fact or law.

It is clear on the face of the order made by the President that the order was one of the Discrimination Tribunal separately constituted under the Discrimination Act, and not an order of this tribunal. The definition of "tribunal" in the dictionary to the ACAT Act refers to the tribunal established under the ACAT Act itself, not one established under any other legislation.

10. The Regulations provide the way in which matters which have been lodged with other tribunals prior to 2 February 2009 (the “commencement date”) can be dealt with by this Tribunal.  Regulation 17 (1) (b) provides that where a complaint or application had been lodged with the Discrimination Tribunal but it had not begun hearing the matter prior to the commencement date, then after the commencement date the complaint or application is taken to be one to this tribunal.

11. As indicated above, the original applications were lodged in 2003 and 2005. The President's decision makes it clear that the complaint had been the subject of hearings on several occasions, the last being 29 October 2008. While the respondent questioned whether the President had "begun hearing the application or complaint” it is clear from the terms of the President's decision that the matter had been the subject of hearings prior to the commencement date. Accordingly, Regulation 17 provides no assistance to the appellant.

12. Regulation 18 of the Regulations also makes it clear that where an application had been made to the Discrimination Tribunal prior to the commencement date and the Discrimination Tribunal had begun hearing but had not decided the complaint or application, then the Discrimination Act in its terms prior to the commencement date continues to apply in relation to the complaint or application. The structure of the Regulations clearly indicates that if the hearing of a matter had been commenced before the Discrimination Tribunal before the commencement date, then it should be completed in accordance with the Discrimination Act.

13. Counsel for the respondent submitted that it was open to the appellant to review the decision of the President by way of application to the Supreme Court, subject to the terms of the Discrimination Act as it was before the commencement date. The appellant indicated that he preferred that the matter be appealed to this tribunal, but this preference cannot vest jurisdiction where none exists. While this tribunal does not have jurisdiction, the appellant still has all of his rights under the Discrimination Act and is therefore not without a review mechanism.

14. I am satisfied that this tribunal does not have jurisdiction to determine this application. I order that the application be dismissed.

Dated the 28 August 2009

…………………………………………..
CG Chenoweth
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AA 09/16

APPELANT:                  MICHAEL FIRESTONE                 

RESPONDENT:            AUSTRALIAN NATIONAL UNIVERSITY

COUNSEL APPEARING:       APPELLANT:  

RESPONDENT:                 MR HAUSFELD

SOLICITORS:  APPELLANT:         

RESPONDENT:                 BLAKE DAWSON

OTHER:APPELLANT:  SELF

RESPONDENTS:

TRIBUNAL MEMBER: CG Chenoweth, Presidential Member

DATE OF HEARING:   6 August 2009            PLACE: CANBERRA

DATE OF DECISION:   28 August 2009         PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: