New South Wales Teachers Federation v President, Anti-Discrimination Board

[2005] NSWADT 153

CITATION:	New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT New South Wales Teachers Federation FIRST RESPONDENT President, Anti-Discrimination Board SECOND RESPONDENT State of New South Wales (Department of Education)
FILE NUMBER:	041148
HEARING DATES:	18/03/2005
SUBMISSIONS CLOSED:	03/18/2005
DATE OF DECISION:	07/07/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Anti-Discrimination Act 1977 Interpretation Act 1987 Migration Act 1958 (Cth)
CASES CITED:	Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Amery & Ors v The State of New South Wales (No.2) [2001] NSWADT 187 Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 Langley v Niland [1981] 2 NSWLR 104 McAuliffe v Puplick (Supreme Court, 1 February 1996, unreported, per Levine J) Mr and Mrs A on behalf of their four children -v- State of New South Wales and Department of Education and Training [2003] NSWADT 71 Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT
REPRESENTATION:	C Birch, senior counsel P Lowson, counsel FIRST RESPONDENT Submitting appearance SECOND RESPONDENT P Singleton, counsel
ORDERS:	1. Application dismissed; 2. If the respondent wishes to apply for costs, it should do so by filing and serving an application together with supporting submissions within 21 days of the date of this decision ; 3.The applicant is to file and serve a reply together with any supporting submissions to any such application within a further 21 days; 4. Any application for costs to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Introduction

1 The issue in this case is whether the Tribunal has jurisdiction to review a particular decision made by a delegate of the President of the Anti-Discrimination Board. The delegate’s decision, which was made on 20 April 2004, was not to accept the applicant’s “…. late complaints because ‘good cause’ has not been shown.” The President’s delegate went on to say that “I have decided this under s 88(4) of the Anti-Discrimination Act 1977.” The general rule is that a complaint of discrimination must be lodged within 6 months from the date that the alleged discrimination took place: s 88(3). But s 88(4) allows the President, on good cause being shown, to accept a complaint that is lodged more than 6 months after that date. The Teachers Federation lodged the complaints on 15 August 2001 on behalf of 688 teachers. Some of the complaints related to periods of employment more than six months before the complaints were lodged. The President’s delegate did not accept the late complaints and on 16 December 2004, the NSW Teachers Federation applied to the Tribunal for a merits review of that decision. The Department of Education says that the Tribunal does not have power to review the decision.

2 The background to this matter is that on 13 December 2001, the Tribunal decided that the Department of Education had discriminated against thirteen female casual teachers. (Amery & Ors v The State of New South Wales (No.2) [2001] NSWADT 187.) As casuals, the women could not access the higher salary increments paid to permanent teachers, even though they performed work of equal value. That decision was set aside by the Appeal Panel, but on 15 November 2004, the Court of Appeal upheld the Tribunal’s original decision. (Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404.) Recently the High Court granted the Department of Education special leave to appeal against the Court of Appeal’s decision.

3 About six weeks after this matter was heard, the Anti-Discrimination Act 1977 was amended. Those amendments, which commenced on 2 May 2005, make it clear that a decision by the President to decline a complaint because the conduct occurred more than 12 months earlier, is not a decision that the Tribunal can review: s 89(4). In these reasons I am referring to the provisions that were in effect prior to 2 May 2005.

Legal framework

4 The Tribunal has power to review “reviewable decisions”: s 36 of the Administrative Decisions Tribunal Act 1997 (ADT ACT). Section 8 of the ADT Act defines a “reviewable decision” as “a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.” The only relevant enactment is the Anti-Discrimination Act 1977. Unless that Act provides that decisions not to accept a complaint out of time are “reviewable”, then the Tribunal will not have jurisdiction to review those kinds of decision: s 38 of the ADT Act. Section s 90(3) of the Anti-Discrimination Act 1977 is the only provision that gives the Tribunal power to review any of the President’s decisions. That sub-section states that:

If the President declines under subsection (1) to entertain a complaint for any reason other than that the complaint is vexatious, misconceived or lacking in substance, the complainant may appeal to the Tribunal for a review of the President’s decision.

5 Section 90(1) states that:

Where, at any stage of the President’s investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint.

6 For the decision not to accept the complaints out of time to be a reviewable decision it must be a decision made under s 90(1). If it was made under s 90(1), then it must have been made “at any stage of the President’s investigation of a complaint” and it must have been a decision to decline to entertain a complaint “for any other reason”. In order to determine whether the decision was made under s 90(1), I need to look briefly at the legislative scheme for the making and handling of complaints under the Anti-Discrimination Act 1977.

Statutory scheme for lodging and investigating complaints

7 Both individual and representative complaints are defined in s 88 as being complaints “lodged under s 88”. Section 88 sets out who can make individual and representative complaints, who can make a compliant on behalf of a child or a person with a disability and who can make a vilification complaint. Section 88 also provides a time limit for the lodging of complaints. Sub-sections 88(3) and (4) state that:

(3) A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.

(4) Notwithstanding subsection (3), the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection.

8 Sub-section 88(4) is the only provision in s 88 that permits the President to accept a complaint despite non-compliance with the general rules about the making of complaints. Section 89 states that, “The President shall investigate each complaint lodged with the President under s 88.” Investigation is only applicable to complaints “lodged…under s 88.” Section 90(1), set out above at [5], empowers the President to decline a complaint “at any stage of the President’s investigation of a complaint”, if the complaint is “frivolous, vexatious, misconceived, lack in substance, or that for any other reason the complaint should not be entertained.” If the President declines a complaint under s 90(1), the complainant may still require the President to refer the complaint to the Tribunal for an inquiry: s 91(2) and s 96.

Purposive approach

9 Purposive approach. When interpreting statutory provisions, the Tribunal must take a “purposive” approach: s 33 Interpretation Act 1987. That means that the Tribunal should construe statutory provisions in a way that promotes the purpose or object of the Act. The Teachers Federation submitted that a purposive approach would lead to the conclusion that an avenue of review should be available for out of time decisions, without having to resort to proceedings for judicial review in the Supreme Court. The Teachers Federation also said that its submission that the decision is reviewable is consistent with the objects of the Act and enables all matters that are investigated and then declined, to be reviewed by the Tribunal. In my view, it is not necessary to strain the ordinary meaning of the provisions under consideration in order to construe them in a way which promotes the purpose or object of the Act. The reasons for that conclusion are set out below.

Was the decision made under s 90(1)?

10 The President’s delegate nominated s 88(4) as the provision under which the decision was made. Section 88(4) gives the President an express power to “accept” a late complaint. Section 90(1) relates to the circumstances in which the President may “decline to entertain” a complaint. The Teachers Federation submitted that a decision to refuse to accept a complaint out of time is a decision to decline to entertain a complaint because, in both cases, the file is closed. However, because there is an express power in s 88(4), which prescribes the conditions and restrictions which must be observed in making that decision (i.e. “good cause” being shown) the operation of the general provision in s 90(1) is excluded: Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J. That reasoning is sufficient to dispose of the Teachers Federation application, but I will go on to consider the remainder of their submissions.

Meaning of investigation

11 Even if a decision not to accept the complaints out of time was capable of being made under both provisions, the elements of s 90(1) have not been satisfied. For the decision not to accept the complaints out of time to be a reviewable decision, it must have been made under s 90(1) “at any stage of the President’s investigation of a complaint”. The Teachers Federation’s primary submission was that those words are broad enough to cover all the steps taken by the President including steps that are taken prior to the President investigating the complaint. According to the Federation, consideration of whether or not good cause has been shown necessarily involves an “investigation” under s 89.

12 The natural and ordinary meaning of ‘investigation’ is “the act or process of searching or inquiring in order to ascertain facts.” (Health Insurance Commission v Freeman (1998) a48 ALR 267 at 273.) I agree with the Department of Education that “investigation” describes the efforts by the President to identify the factual basis of the complaint itself, not to findings about procedural matters that need to be resolved before the merits of the complaint are examined. Section s 89(1) requires the President to investigate “complaints”, not the circumstances of the making of a complaint or the circumstances of a delay in the making of a complaint. That conclusion is supported by the fact that s 88(4) is not concerned with the merits of a complaint: McAuliffe v Puplick (Supreme Court, 1 February 1996, unreported, per Levine J).

13 The Teachers Federation’s alternative submission was that once a complaint has been physically lodged with the President, it has been “lodged under s 88” and any inquiry into whether or not it should be accepted out of time, is part of the “investigation” that the President is required to carry out under s 89. According to the Teachers Federation, for the President to exercise discretion under s 88(4) a complaint in writing must already have been “lodged”. The Federation says that s 88(4) is concerned with whether or not a complaint should be accepted out of time, not with lodgement. The Federation points out that s 88(4) specifically contemplates that a complaint is lodged even where it is lodged more than six months after the date of contravention of the Act. Consequently a late complaint is still lodged under s 88 even though the President has not yet decided whether or not to accept it out of time.

14 Meaning of “lodged” in s 88(4) and “lodged under s 88” in s 89. The definitions of complaint and representative complaint in s 87 and the investigation power in s 89 refer to complaints “lodged…under s 88.” Section 88(4) applies to complaints “lodged more than 6 months” out of time. Authorities interpreting the phrase “lodged under” are not particularly helpful because the meaning of that term depends on the particular statutory context. In general, I should assume that the word “lodged” is used consistently throughout the Act, but I must read all the provisions in context. When read in context, I find that the words “lodged more than 6 months” out of time in s 88(4) refer to the fact that the complaint was lodged in accordance with s 88, apart from the fact that it is out of time. The words “lodged…under s 88” in ss 87 and 89 refer to complaints lodged in accordance with s 88, including either having been lodged within the 6 month time period, or the President having extended time under s 88(4).

15 The context includes the fact that s 88(2) allows a person to lodge a complaint on behalf of another person who is under 18 or who has a disability, but only if the other person consents or, in the case of a child, the complaint is lodged with the consent of the parent or guardian. Section 88(2B) then provides that:

Nothing in subsection (2) limits or restricts the discretion of the President under section 90(1) to decline to entertain a complaint lodged in accordance with subsection (2)
(a) where it appears to the President that the person who lodged the complaint has subsequently lost the confidence or authority of the complainant; or

(b) for any other reason that, in the circumstances of the case, appears to the President sufficient. (Emphasis added.)

16 This provision supports my conclusion that complaints must be lodged “in accordance with” s 88 before they can be accepted by the President. It is only after such a complaint has been accepted that the President can go on to “investigate” the complaint and make a decision under s 90(1) to decline to entertain a complaint.

17 Physical lodgement sufficient? The Teachers Federation relied on a passage from Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471 in support of their submission that physical lodgement is sufficient to constitute “lodgement under…s 88.” The issue in that case was whether the Federal Court had jurisdiction to hear an application to review a decision of the Refugee Review Tribunal when that application was sent by facsimile transmission to a registry of the court. Section 478 of Migration Act 1958 (Cth) requires the application to review the decision to “be lodged with a Registry of the Federal Court . . .” The Federal Court held that a facsimile transmission will be lodged when the transmission is complete. That is when the application is in the possession of a Registry or the staff of a Registry.

18 The question in this case is not whether an application has been “lodged” under s 478 of the Migration Act 1958 (Cth). The question for this Tribunal is whether the complaint had already been “lodged with the President under s 88” at the time when the President’s delegate decided not to accept the complaints out of time. Consequently, the decision in Hong is not directly applicable.

19 My conclusion that the decision was not made under s 90(1) is also consistent with the approach taken by the Appeal Panel in Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20 at [30]:

Section 89(1) provides that “the President shall investigate each complaint lodged with the President under section 88 .” It must therefor, (sic) in our view, be lodged in compliance with all of s 88(1) - (4). On the face of those subsections, it appears to the Panel that a complaint which is not lodged within six months of the alleged contravention of the Act (s 88(3)), and has not been the subject of the exercise of the discretion to accept a complaint lodged out of time (s 88(4)), is not a complaint lodged with the President under section 88, for the purposes of section 89 (1) of the Act. In short, the statutory power to investigate a complaint apparently arises only when the conditions attaching to s 88 are observed, that is, when a complaint is validly received.

20 The Teachers Federation sought to distinguish this decision on the basis that the Appeal Panel’s findings were obiter and not central to its decision as to whether or not it had jurisdiction to hold an inquiry into those parts of the complaint which were out of time. My decision is not based on any obligation to follow the decision in Mooney. I merely note that that decision is consistent with my conclusion.

Is the decision a decision to decline to entertain a complaint “for any other reason”?

21 The Teachers Federation submitted that the decision of the President not to accept the complaints out of time was a decision to decline to entertain a complaint “for any other reason”. The Department of Education initially said that the words “for any other reason” should be read ejusdem generis, but later conceded that that dictum was not applicable. That rule assumes that there is an appropriate genus by which words of otherwise ample scope may be limited. The authorities support the Teachers Federation’s arguments. The phrase “for any other reason” in s 111 of the Act (which is in virtually identical terms) has been held not to be limited in any way by the preceding reasons for dismissal. (Mr and Mrs A on behalf of their four children -v- State of New South Wales and Department of Education and Training [2003] NSWADT 71 at [6]; Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT; Langley v Niland [1981] 2 NSWLR 104 at 107.)

22 I agree that the words “for any other reason”, when read in isolation, could theoretically encompass a reason relating to the age of the complaints. However, for the reasons already given, a decision not to accept a complaint out of time under s 88(4) is not a decision to decline to entertain a complaint under s 90(1) and consequently is not reviewable under s 90(3).

Consequences of each interpretation

23 The Teachers Federation submitted that the Tribunal should find that it has jurisdiction to review the President’s decision because that would avoid the “absurd” consequence that the only decision of the President that could not be reviewed by, or referred to, the Tribunal was a decision not to accept a complaint out of time. A complainant with a patently vexatious or frivolous complaint can have the matter referred to the Tribunal under s 91(1). A complainant whose complaint has been declined as not disclosing a contravention of the Act is entitled to have that decision reviewed pursuant to s 90(3). According to the Teachers Federation, it would be inconsistent with the purpose of introducing the review provision if the Tribunal is precluded from reviewing a decision not to extend time. That decision can effectively determine, or circumscribe the complaint, but the only means of redress is by way of judicial review in the Supreme Court.

24 If the consequences of interpreting legislation in a particular way are, for example, extraordinary, capricious or irrational then it can be assumed that the legislature did not intend that meaning. (Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151 at 169-170 per Mason and Wilson JJ.) However, in this case the interpretation put forward by the Department of Education is not extraordinary, capricious or irrational. If the President determines that a complaint has not been made in accordance with s 88, then neither party can require the matter to be referred to the Tribunal or seek a review of the President’s decision. It is not only decisions refusing to accept a complaint out of time that fall into that category. A person who “lodges” a racial vilification complaint but who the President decides is not a member of the racial group concerned, cannot seek a review of the President’s decision not to accept that complaint: s 88(1D). Similarly, a person who “lodges” a complaint on behalf of another person who is not under 18 or who does not have a disability, cannot seek a review of the President’s decision not to accept that complaint: 88(1) and s 88(2). Neither can such people require the President to refer their “complaint” to the Tribunal for inquiry.

25 If the Teachers Federation submission is accepted, then once the President had “declined” the complaint as being out of time, the complainant would be able to require the President to refer the complaint to the Tribunal for inquiry: s 90(2) and s 91(1) and s 91(1A). That means that the Tribunal would be compelled to “hold an inquiry” into that complaint: s 96. Apart from the powers the Tribunal has to summarily dismiss a complaint under s 111, the Tribunal has no power to determine the period of time covered by the complaint. In that case, the time period imposed by s 88(3) would be meaningless because a complainant would have the right to have the entire complaint referred to the Tribunal. That consequence is closer to producing an irrational result than the interpretation advocated by the Department of Education.

Requirements for application for review

26 If I am wrong, and the decision of the President’s delegate is reviewable under s 90(3), the next question is whether the Tribunal should exercise its discretion to accept the application, notwithstanding that no internal review was requested or carried out. Section 55 of the ADT Act sets out the requirements that must be met for a person to make an application for a reviewable decision:

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:
(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

27 The period under s 55(d) is 28 days: Cl 15(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998). Under 53(9), an internal review is taken to have been finalised if the applicant is notified of the outcome of the review or the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agreed on).

28 The out of time decision was made on 20 April 2004. The Teachers Federation did not apply for an internal review but applied to the Tribunal for a review of the decision on 15 December 2004. The Teachers Federation explains the delay of approximately 8 months in several ways. First they say that they were never advised that they could apply for an internal review. That is understandable since the President apparently took the view that it was not a “reviewable decision.” Secondly, the applicant submitted that at least since 1 September 2004, the Teachers Federation was not entitled to an internal review. That is because effective from 1 September 2004, the Administrative Decisions Tribunal (General) Regulation 2004 excludes decisions that are reviewable pursuant to s 90(3) of the Anti-Discrimination Act 1977 from the operation of the internal review procedures: Cl 11(a) of the 2004 Regulations. I understand that the reason for that amendment was that it is generally the President himself who makes the out of time decision, so there is no-one within the agency who is “suitably qualified” to review the decision.

29 Thirdly, in respect of the time between April 2004 and 1 September 2004, the Teachers Federation submitted that, in the absence of being advised of the option of an internal review, it had no such entitlement. I do not accept that submission. An administrator cannot deprive a person of his or her right merely by failing to tell the person of that right. Alternatively, the Teachers Federation submitted that the Tribunal should accept the application notwithstanding that there has been no internal review. Pursuant to s 55(2)(a) of the ADT Act a person may apply for a review of a reviewable decision notwithstanding that no internal review has been carried out if the ADT is satisfied that “the person was not at any time entitled to apply for an internal review of the decision.” There was nothing preventing the Federation from applying for an internal review prior to 1 September 2004.

30 The only other circumstances in which the Tribunal may accept an application when there has been no internal review is if the Tribunal is satisfied of each element set out in s 55(2)(c) namely that:

It is necessary for the Tribunal to deal with the application for review in order for the Tribunal to protect the interests of the Teachers Federation; and

The application was made within a reasonable time following the decision.

31 In determining whether a late application to the Tribunal was made within a reasonable time the Tribunal is to have regard to:

the time when the applicant became aware of the making of the decision;

such other matters as it considers relevant: s 55(3).

32 In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6, the Tribunal warned against too readily dispensing with the requirement for an internal review.

It is important for the successful implementation of the goals of the Tribunal Act in New South Wales government administration that internal review occur before an application is made to the Tribunal for reconsideration of a decision. Consequently the Tribunal should not readily dispense with compliance with the requirement that an internal review first be sought and undertaken before an application is lodged.

33 In relation to the protection of the interests of the Teachers Federation, it submitted that it represents the interests of 688 casual teachers and 160 of those would lose any chance of a claim in respect of discriminatory conduct if the out of time aspects of the complaints are not accepted. A further 522 would lose a substantial proportion of potential damages claim. According to the Department of Education, the requirement for the Tribunal to protect the interests of the Teachers Federation is to be construed in its context which is the acceptance by the Tribunal of an application for external review when there has not been an internal review. A typical reason to protect the interests of the applicant is the need to urgently consider whether the decision should be stayed: Haining v Commissioner of Police [1999] NSWADT 6 at [16]. The Department of Education says there is no such connection in this case apart from the interest which exists in every case in having the Tribunal review the decision.

34 As of 1 September 2004, the Teachers Federation has no entitlement to an internal review. Consequently, the failure to seek and obtain such a review cannot be rectified. I agree that in those circumstances, it would have been necessary for the Tribunal to deal with the application for review in order to protect the interests of the teachers concerned. Otherwise, they would have no redress other than that generally available to applicants, namely judicial review in the Supreme Court. I understand that such an application has been made and is adjourned pending the outcome of these proceedings.

35 The final requirement is that the application for review was lodged within a reasonable time. According to the Federation, the delay of nearly 8 months from the date of the decision to the filing of the application can be explained by:

the failure of the decision maker to advise that they could apply for an internal review of the decision;

the fact that there is no precedent establishing that a decision not to exercise discretion under s 88(4) is a reviewable decision under s 90(3); and

the timing of the Court of Appeal’s decision.

36 Even though a failure of the administrator to advise the person of their rights of review does not affect the validity of the decision, such a failure is a relevant factor in assessing the reasonableness of any delay. The lack of any precedent establishing that the decision under consideration is a “reviewable decision” may also explain some of the delay. The Teachers Federation would have had to do some research on the point and decide whether or not to make the application. Finally, the Teachers Federation pointed out that the Court of Appeal’s decision was not handed down until 15 November 2004. (Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404.) If that decision had been adverse to the teachers concerned, there would have been no point continuing with the related matters involving a further 688 teachers. The application for review was filed within about a month of the Court of Appeal’s decision.

37 The failure of the President to notify the Teachers Federation of any right to an internal review and the need to research the jurisdictional question, explains some of the delay. It is also understandable that the Teachers Federation would not have wanted to incur the costs of preparing this application to the Tribunal if they had been unsuccessful before the Court of Appeal. In those circumstances, I find that the application was made within a reasonable time following the decision.

38 If the Tribunal had jurisdiction to hear and determine this application, the Teachers Federation has satisfied me that the application should be accepted under s 55(2)(c) because it is necessary for the Tribunal to deal with the application in order to protect the teachers’ interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator. Given that conclusion, there is no need for me to deal with the parties’ submissions in relation s 81 of the ADT Act.

Costs

39 The Department of Education indicated at the hearing that if the application was successfully defended, it may wish to apply for costs. Directions in relation to any such application are set out below.

Orders

1. Application dismissed

2. If the respondent wishes to apply for costs, it should do so by filing and serving an application together with supporting submissions within 21 days of the date of this decision

3. The applicant is to file and serve a reply together with any supporting submissions to any such application within a further 21 days

4. Any application for costs to be decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.