Ogawa v Anti-Discrimination Commission Queensland
[2012] QCAT 86
•7 February 2012
| CITATION: | Ogawa v Anti-Discrimination Commission Queensland [2012] QCAT 86 |
| PARTIES: | Megumi Ogawa (Applicant) |
| v | |
| Anti-Discrimination Commission Queensland (Respondent) |
| APPLICATION NUMBER: | ADL003-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 7 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal directs the Principal Registrar to reject the application. |
| CATCHWORDS: | REJECTION OF APPLICATION – where review application did not comply with the Queensland Civil and Administrative Tribunal Act 2009 – where no power to review lapsed complaint following rejection of complaint Anti-Discrimination Act 1991, ss 139,142, 169, 174A |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Dr Ogawa made a complaint to the Anti-Discrimination Commission Queensland and on 14 December 2011 her complaint was rejected under section 139 of the Anti-Discrimination Act 1991 on the basis that her complaint was lacking in substance. Dr Ogawa applied to QCAT for a review of that decision.
The delegate of the principal registrar at QCAT decided to reject the review application on the ground that QCAT does not have jurisdiction to consider the review application.
In the QCAT Act the principal registrar of the tribunal has been given a responsibility to accept or reject applications for filing in the tribunal. The principal registrar may reject an application if the application is made by a person who is not authorised to make it, if the application is made after the expiry of a relevant time period or if the application does not comply with the Act, an enabling Act or the tribunal rules.[1]
[1] Section 35(3) of the QCAT Act 2009.
However, the applicant can make a request for the principal registrar to refer the decision to the tribunal for review.[2] Dr Ogawa made such a request.
[2] Section 35(4)(a) of the QCAT Act 2009.
QCAT’s jurisdiction to conduct a review of decisions made by the Anti-Discrimination Commission Queensland can only arise from the provisions of its enabling Act, namely the Anti-Discrimination Act 1991. The general legislative scheme in the enabling Act points to QCAT’s jurisdiction as primarily being the determining of referred complaints of unlawful contraventions of the Act. Additional specific functions are set out in section 174A together with a more general role described as performing any other functions conferred on QCAT by the enabling Act.
One such other function is to be found in section 169 which provides that a complainant may apply to QCAT to review a decision of the commissioner that a complaint has lapsed due to the complainant having lost interest in continuing with the complaint. If QCAT is satisfied that the complainant has a genuine interest in continuing with the complaint, the commissioner must resume dealing with the complaint. There is no other section in the enabling Act which authorises QCAT to review a decision by the commissioner about a lapsed complaint.
The complaint made by Dr Ogawa had been rejected by the commissioner under section 139 of the Act as lacking in substance. According to section 142, her complaint lapsed on rejection. There is no general power given to QCAT to review the lapsing of a complaint following rejection of that complaint. The power in QCAT to review lapsed complaints is limited to the circumstances set out in section 169. Those circumstances were not present in the case of Dr Ogawa.
QCAT’s review jurisdiction is stated in section 17 of the QCAT Act as the jurisdiction conferred on the tribunal by an enabling Act to review a decision made by another entity under that Act. As QCAT has no jurisdiction conferred on it to review the decision made by the commissioner under section 139 of the enabling Act, the application for review could not comply with the QCAT Act nor with the enabling Act.
The tribunal under section 35(6) of the QCAT Act directed the principal registrar to reject the review application.
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