Pervan v Blow

[2017] TASFC 3

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Pervan v Blow [2017] TASFC 3

PARTIES: PERVAN, Michael, Acting Secretary Department

of Health and Human Services
v
BLOW, Alan, The Honourable Chief Justice

FILE NO:  2130/2015
DELIVERED ON:  7 April 2017
DELIVERED AT:  Hobart
HEARING DATE:  8 April 2016
JUDGMENT OF:  Tennent, Wood and Estcourt JJ

CATCHWORDS:

Administrative Law – Judicial review – Generally – Direction given by a judge pursuant to the Supreme Court Rules 2000, r 38, to accept documents for filing – Whether a reviewable decision.

Judicial Review Act 2000 (Tas).
Aust Dig Administrative Law [1001]

Statutes – Acts of Parliament – Interpretation – General approaches to interpretation – Generally – Anti-Discrimination Act 1998, s 76 – What constitutes a record pursuant to s 76 for the purpose of s 90(1)(b).

Anti-Discrimination Act1998 (Tas), ss 76 and 90.
Aust Dig Statutes [1015]

REPRESENTATION:

Counsel:
             Applicant:  M E O'Farrell SC and J Rudolf
             Respondent:  N/A
             Amicus Curiae  K Cuthbertson

Solicitors:
Applicant: Office of Solicitor-General
Respondent: N/A

Judgment Number: [2017] TASFC 3
Number of paragraphs: 81

Serial No 3/2017
File No 2130/2015

MICHAEL PERVAN, ACTING SECRETARY DEPARTMENT OF HEALTH AND HUMAN SERVICES v THE HONOURABLE CHIEF JUSTICE ALAN BLOW

REASONS FOR JUDGMENT FULL COURT

TENNENT J
WOOD J (Dissenting)
ESTCOURT J
7 April 2017

Order of the Court

Application to review dismissed.

Serial No 3/2017
File No 2130/2015

MICHAEL PERVAN, ACTING SECRETARY DEPARTMENT OF HEALTH AND HUMAN SERVICES v THE HONOURABLE CHIEF JUSTICE ALAN BLOW

REASONS FOR JUDGMENT FULL COURT

TENNENT J
7 April 2017

What is being dealt with by these reasons is an originating application by which the applicant, in his capacity as the Acting Secretary of the Department of Health and Human Services, sought a review pursuant to the Judicial Review Act 2000 (the Act) of what is asserted to be a reviewable decision made by the Chief Justice on 7 October 2015. Prior to the hearing, an application was filed by the Anti-Discrimination Commissioner (the Commissioner) in which she sought leave to intervene in the proceedings, or alternatively to be heard as amicus curiae.
The application to intervene was not pressed, and counsel for the Commissioner addressed the Court as amicus curiae, in effect to ensure there was a contradictor to the originating application. Mr Ralph, his role in the matter is explained below, was not heard on the application as he acknowledged that his position was being upheld by counsel for the Commissioner.

Background

Arthur Samual Ralph (Mr Ralph) lodged a complaint with the Commissioner on behalf of his daughter, Helen Ralph. The complaint related, in general terms, to treatment of Ms Ralph by child protection authorities. The Commissioner investigated the matter, and then referred it to conciliation. A meeting was held on 8 May 2014. Mr Ralph had provided a written "settlement proposal" prior to the meeting. In what Mr Ralph described as a "long robust meeting" that proposal was discussed and then Mr Ralph, his wife and daughter were asked to leave the room. Mr Ralph says that was to enable the conciliator to determine from child protection representatives what they would agree to.
The Ralph family was then called back in. The child protection representatives had left. However, the conciliator read to the Ralph family a counter proposal which had been put by the child protection representatives. The Ralph family agreed to accept that proposal which related to re-unification of Helen Ralph with her children. On 16 May 2014, Mr Ralph was sent a letter from the Acting Area Director Northwest Children & Youth Services, Ms Fleming, who had attended the conciliation conference. The letter dealt with a number of matters the Ralph family had raised in their proposal and advised that:
"I am aware that planning has commenced regrading ongoing support and work with Helen regarding a reunification plan, and I will over the next few months take a keen interest in its progress and outcomes for Helen, the children and the family."
On 4 July 2014, the Commissioner's office wrote to Mr Ralph forwarding to him a document which was described as a draft conciliation agreement. The letter said in part:
"I refer to our telephone conversation on Friday 4 July 2014 in which I advised you that I had previously sent the Draft Agreement to you by e-mail on 27 May 2014 seeking your view about whether or not the terms of the Agreement confirmed your understanding of what agreement had been reached. You advised me that you had not received my email and we agreed that I would send you a copy of the Draft Agreement by post.
I also noted in our telephone conversation that I had had advice back from Jane Fleming, Area Director, that the CPS was agreeable to signing off on the Draft Agreement as drafted by me save for one amendment in clauses 5 and 6 of the Draft Agreement. I have made the amendment (changing the responsible officer of the CPS from Jane Fleming to the Area Director or Nominee) as instructed.
I would appreciate if you would carefully read the Draft Agreement and then come back to me with any comments and/or your view about whether or not the clauses in the Draft Agreement reflect your understanding of what was agreed to at the Conciliation.
Once you have provided me with your approval/view about the Agreement I will finalise it and send a copy to you and Ms Fleming for sign off."
On 17 July 2014, Mr Ralph signed the document sent to him. On 24 July 2014, Ms Fleming sent an email to the Commissioner's office in which she said:
"Thank you for the correspondence and the final letter/agreement for signing. I just want to ask that the section and nomenclature relating to reunification plan be referred to as reunification assessment in the Agreement. The term Reunification Plan appears in points 1, 2 and 3 and assumed that The Department has made an assessment of the facts and has decided to proceed with reunification.
A Reunification Plan is a document that details the how, when and why of returning children to their parents. A Reunification Plan is informed by the Reunification Assessment.
The Department is committed to, and has already begun an assessment to decide if reunification is an option, and if full reunification is not an option, what level of reunification may be appropriate and is dependent on risk, vulnerability, supports, levels of child development etc.
The results of this assessment will inform and guide case direction. Helen and her family have been actively involved in all planning around the current assessment process and will continue to be involved into the future.
The wording of the document may indicate that the assessment process has been completed and that the process of reunification is underway. I think that this gives unrealistic expectations to Helen and her family and is not reflective of Departmental policy, language and meaning.
I would therefore appreciate that the language be amended to reflect the standardized internal departmental processes and procedures.”
That email was sent to Mr Ralph on 11 August 2014 for his comment.
I infer that Mr Ralph did not agree to any alterations to the document as he had signed it. On 18 March 2015, the Commissioner wrote to Mr Ralph in the following terms:
"Agreement: Sam Ralph on behalf of Helen Ralph AND Department of Health and Human Services (Children and Family Services – Child Protection Service)
I enclose a copy of the Agreement made between you on behalf of Helen Ralph and the Department of Health and Human Services (Children and Family Services – Child Protection Service), (the Department). I note that the Agreement is not signed by a duly authorised signatory of the Department and that there have been ongoing discussions in relation to the possibility of reconvening the conciliation conference that was held on 8 May 2014, due to the Department raising concerns about a particular word in the Agreement.
After feedback from you and the conciliator together with reference to the Anti-Discrimination Act 1998 (the Act), I formed the view that I have no legislative authority to reconvene a conciliation meeting when it is clear that the parties to a complaint have reached agreement at conciliation.
I have referred the Department to the Anti-Discrimination Tribunal decision in Pavlovic v Chubb Security and Ors [2007] TASADT 05. I note that while the Department has decided not to sign the Agreement, it is my view that the Department is bound by the terms of the Agreement reached with you. I note further that you in accordance with the Act can seek to enforce the Agreement or be required by the Supreme Court of Tasmania to comply with the terms of the agreement as noted below.
I advise that the complaint has now been finalised and the file will now be closed.
I take this opportunity to remind the parties that, as participants in the Conciliation Conference and parties to the complaint, the signed Agreement is enforceable as if it were an order made by the Anti-Discrimination Tribunal under section 89(1) of the Anti-Discrimination Act 1998 (Tas) (the Act). This means that it has the force of law, the parties are bound by it and are obliged to abide by its terms.
If necessary, the Agreement can be enforced. Any of the parties can file the Agreement in the Supreme Court of Tasmania. This makes the Agreement enforceable as if it were an Order of the Supreme Court of Tasmania.
If for some reason one or other of the parties does not abide by the terms of the Agreement, the Supreme Court can deal with this as if an Order of the Supreme Court had been breached.
I also draw to your attention section 18 of the Act, which deals with post-complaint matters:
18 Prohibition of victimisation
(1) A person must not victimise another person because that other person –
(a)made, or intends to make, a complaint under this Act; or
(b)gave, or intends to give, evidence or information in connection with any proceedings under this Act; or
(c)alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or
(d)refused or intends to refuse to do anything that would amount to a contravention of this Act; or
(e)has done anything in relation to any person under or by reference to this Act.
(2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment.
This part of the Act applies to everyone equally, and everyone is obliged to abide by it.
If you have any difficulty with doing what you agreed to in the Agreement, or if you find that the Agreement has not been followed, please contact my office on 03 6165 7515 and ask to speak to Mrs Struwe.
Thank you for your co-operation in this matter."
I infer that the document sent with that letter was the document originally signed by Mr Ralph and dated 17 July 2014.
On 2 June 2015, the Commissioner signed a certificate. It purported to be a "Certificate under section 90(1)(b) of the Anti-Discrimination Act 1998". It read:
"I certify that the attached Document marked 'A' (Closure Letter) is a true copy of the original document held on complaint file 13/06/061."
Attached to the certificate was a copy of the document signed by Mr Ralph bearing the date 17 July 2014. Section 90(1)(b) lists the document to be filed with this Court for the purpose of enforcing an agreement to resolve a complaint. The document identified is "a copy of the record made under section 76 and certified by the Commissioner". It must be inferred, having regard to the terms of the Commissioner's letter dated 18 March 2015, that she had by then concluded that the document signed by Mr Ralph and dated 17 July 2014 was a record of the terms of an agreement reached between the parties to resolve Mr Ralph's complaint, notwithstanding that the record had not been signed by or on behalf of the other party in the conciliation conference.
On 17 June 2015, the District Registrar of the Court in the Burnie registry wrote to Mr Ralph in the following terms, and sent a courtesy copy of the letter to the office of the Director of Public Prosecutions:
"Re: Arthur Samual Ralph on behalf of Helen Ralph v STATE OF TASMANIA (DEPARTMENT OF HEALTH AND HUMAN SERVICES) S/2015/637
We have today registered your Certificate for enforcement orders under section 90 of the Anti-Discrimination Act 1988.
The Court's reference number is S2015/637.
It is now for you to determine what enforcement orders you require and make an Interlocutory Application requesting a listing date for those orders to be made.
We recommend you seek some legal advice on how to frame your request for those orders."
Mr Turner, as Assistant Director of Public Prosecutions (Civil Division), replied as follows on 25 June 2015:
"RALPH V STATE OF TASMANIA – S2015/637
This office has received a copy of a letter evidently sent to Mr Ralph on the 17^th of June 2015. In part, that letter says:
'We have today registered your Certificate for enforcement orders under section 90 of the Anti Discrimination Act 1988.'
Section 90 of the Act relevantly provides that:
'(1)A person may enforce … an agreement to resolve a complaint by filing the following documents … in the Supreme Court:
(b) in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner …'.
In turn, section 76 provides, in part, that:
'(1)The Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint.
(2)The record made by the Commissioner … is to be signed by each party' (my emphasis).
In consequence, the Court ought not to have accepted, for filing, that which was delivered by Mr Ralph – because it does not answer the description of 'the record' as appears in s90.
I would be grateful if you would confirm your agreement with that conclusion."
On 7 October 2015, the Chief Justice directed the District Registrar of the Court in Burnie to accept for filing the certified copy of the agreement, and both Mr Ralph and Mr Turner were advised accordingly. His Honour's reasons were in the following terms:
"1 The applicant, Sam Ralph, has made an application under r 38 of the Supreme Court Rules 2000, for a direction to the District Registrar at Burnie to accept certain documents for filing.
2   The background to his application is as follows:
·Mr Ralph made a complaint to the Anti-Discrimination Commissioner pursuant to the provisions of the Anti-Discrimination Act 1998 ('the Act'), complaining that his daughter, Helen Ralph, had been discriminated against on the basis of disability by officers of the Department of Health and Human Services.
·A conciliation conference was held on 8 May 2014 pursuant to s 75 of the Act. It was attended by Mr Ralph, his daughter, another family member, and officers of the department.
·After that conference, a document was prepared. That document purported to record the terms of an agreement reached at the conference that resolved the complaint. That document was signed by Mr Ralph, but not by anybody from the department. Evidently a decision was made within the department that no one from the department would sign the document. I will refer to it as 'the agreement document'.
·On 18 March 2015 the Anti-Discrimination Commissioner wrote to Mr Ralph forwarding the agreement document, observing that it had not been signed by a 'duly authorised signatory of the Department', and expressing the view that, despite that fact, the department was bound by the agreement.
·Mr Ralph took the view that an agreement had been reached at the conciliation conference, and that steps should be taken to enforce it. On 17 June 2015 he lodged two documents for filing in the Burnie Registry of the Court. One of them was a copy of the agreement document, certified by the Anti-Discrimination Commissioner to be a true copy. The other was an affidavit.
·On 2 July 2015 the District Registrar at Burnie decided not to accept the certified copy of the agreement document for filing. She took the view that Mr Ralph did not have the right to file a certified copy of an agreement unless the agreement had been signed by both parties.
·On 2 September 2015 Mr Ralph made an application, by letter, for a direction under r 38 requiring the District Registrar to accept his documents for filing. That is the application that is now before me.
3 Rule 38 reads as follows:
'A party may apply to the Court or a judge ex parte in a summary way for a direction that the registrar do any act which —
(a) a registrar is required or entitled to do; and
(b) the party requires to be done; and
(c) has not been done.'
4 When the parties to an anti-discrimination complaint resolve that complaint at a s 75 conciliation conference, s 76 of the Act requires the Anti-Discrimination Commissioner or an authorised person to record the terms of their agreement, and requires each party to sign the record that is made of that agreement.
5 Section 76 reads as follows:
'(1) The Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint.
(2)   The record made by the Commissioner or authorised person is to be signed by each party.
(3)   The Commissioner or authorised person is to —
(a) provide a copy of the record to each party; and
(b) hold the original record on file.
(4)   An agreement is enforceable as if it were an order made by the Tribunal under section 89(1).'
6 The tribunal referred to in s 76(4) is known as the Anti-Discrimination Tribunal. Section 89(1) empowers that tribunal to make various orders if it finds that a complaint is substantiated. Under s 89(1)(h), it may make 'any other order it thinks appropriate'.
7 Section 90 of the Act makes provision for orders of the tribunal and agreements between parties to be enforceable in the Supreme Court. Its material provisions read as follows:
'(1) A person, or the Commissioner at the request of a person, may enforce an order made under section 89(1) or an agreement to resolve a complaint by filing the following documents, free of charge, in the Supreme Court:
(a) …
(b) in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner or an authorised person;
(c) an affidavit stating the extent to which the order or agreement has not been complied with.
(2)   If the documents are filed in accordance with this section, the order made by the Tribunal or agreement is enforceable as if it were an order of the Supreme Court.'
8 After receiving Mr Ralph's application under r 38, I invited the Assistant Director of Public Prosecutions, Mr Turner, to make written submissions on behalf of the department. He made submissions by letter dated 6 October 2015. In his letter he drew my attention to the requirement of s 76(2) that the record made by the Commissioner 'is to be signed by each party'. He submitted that, unless each party signed the record made by the Commissioner, the record made by the Commissioner did not constitute, within the meaning of s 90(1)(b), 'a copy of the record made under section 76'.
9   As Mr Turner pointed out, when determining the proper interpretation of a legislative provision, it is necessary to consider the text, context and purpose of that provision: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 195 CLR 355 at [78]; Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
10 In this case, the scheme of the relevant legislative provisions is clear. If the parties to an anti-discrimination complaint reach an agreement that resolves the complaint at a conciliation conference, then their agreement is to be recorded and, once recorded, may be enforced in the Supreme Court as if it were an order of the Supreme Court. If, between the making of an agreement and the recording of that agreement, either party were able to escape from that agreement simply by refusing to sign the required document, the purpose of the relevant legislative provisions could be very easily thwarted.
11 Section 8A(1) of the Acts Interpretation Act 1931 requires that an interpretation that promotes the purpose or object of a legislative provision is to be preferred to one that does not. The words 'a copy of the record made under section 76' in s 90(1)(b) need to be interpreted with that requirement in mind. If there were an agreement under s 76, and one party to that agreement refused to sign the record of that agreement despite the requirement made by s 76(2), then the interpretation contended for on behalf of the department would certainly not promote the purpose or object of the Act. But the purpose or object of the Act would be promoted by interpreting the words in question as referring to the record of the agreement made pursuant to s 76(1), whether or not it was signed by each party as required by s 76(2).
12 It is also significant that the language of s 76(2) treats the document in question as constituting a 'record made by the Commissioner or authorised person' before it is signed by each of the parties. If an unsigned document constitutes a 'record' for the purposes of s 76(2), it is logical to treat it as constituting a 'record made under section 76 and certified by the Commissioner or an authorised person' for the purposes of s 90(1)(b), even if one or more parties have not signed it.
13 For these reasons, I conclude that the failure of one party to sign a record of an agreement, as required by s 76(2), does not prevent that agreement from being enforced in accordance with s 90.
14 On its face, the agreement document purports to be a copy of a record made under s 76(1). The document lodged for filing is certified by the Commissioner to be a true copy of such a record. In my view it was therefore in order for filing pursuant to s 90(1)(b).
15 For these reasons, I have determined that the District Registrar must be directed to file the documents lodged by Mr Ralph.
16 I do not know whether the State might wish to contend that, contrary to the position taken by the Commissioner and Mr Ralph, in fact no agreement was reached at the conciliation conference. I wish to make it clear that I am leaving open the question of whether such a contention may be raised by the State if Mr Ralph pursues enforcement proceedings."

Originating application

On 3 November 2015, the applicant filed an originating application. The application was as follows:
"The Applicant, being aggrieved by a decision made by the Respondent on the 7^th of October 2015, applies for an order pursuant to section 27(1)(a) of the Judicial Review Act 2000 namely that the decision be quashed; and in addition applies for an order that the costs of this application be provided for.
Upon the grounds that:
1The Respondent erred in law in construing the phrase 'a copy of the record made under section 76', appearing in s90(1)(b) of the Anti-Discrimination Act, in such a way as to encompass a document which was not 'signed by each party' as required by s76(2) if [sic] the Anti-Discrimination Act (s17(2)(f) Judicial Review Act);
2The Respondent erred in law in determining that an agreement, which purported to be a copy of the record referred to in s76(1) of the Anti-Discrimination Act, was such a record when such document was not and could not be found to be such a record (s 17(2)(f) Judicial Review Act)."
The application did not identify the section of the Act pursuant to which the application was made. Section 27 provides for the powers the Court has when dealing with an application and does not deal with the grounds upon which an application is made. It can be inferred that the application relies upon s 17(2)(f), that is an assertion that the Chief Justice's decision involved errors of law.

Relevant legislation

The Anti-Discrimination Act 1998 (the AD Act), ss 76 and 90, relevantly provide:
"76     Resolved complaint
(1)   The Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint.
(2)   The record made by the Commissioner or authorised person is to be signed by each party.
(3)   The Commissioner or authorised person is to –
(a) provide a copy of the record to each party; and
(b) hold the original record on file.
(4) An agreement is enforceable as if it were an order made by the Tribunal under section 89(1).
…
90       Enforcement of orders
(1) A person, or the Commissioner at the request of a person, may enforce an order made under section 89(1) or an agreement to resolve a complaint by filing the following documents, free of charge, in the Supreme Court:
(a)   in the case of an order, a copy of the order certified by –
(i)     the member who presided over the inquiry, if the Tribunal consisted of more than one person; or
(ii)            the member who constituted the Tribunal, if the Tribunal only consisted of one person;
(b)in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner or an authorised person;
(c)an affidavit stating the extent to which the order or agreement has not been complied with.
(2)   If the documents are filed in accordance with this section, the order made by the Tribunal or agreement is enforceable as if it were an order of the Supreme Court."

Submissions and discussion

The decision made by the Chief Justice was made pursuant to the Supreme Court Rules 2000, r 38. That rule is set out in [3] of the reasons of the Chief Justice extracted in [11] above. The Act provides that judicial review is only available in respect of an administrative decision made or required to be made under an enactment. It is accepted that the decision of the Chief Justice in this matter was a decision of an administrative nature in that it was made to assist the District Registrar in carrying out her administrative tasks. It did not involve any determination as to the rights of any parties to which it related.
The Act also provides that judicial review of a decision is only available to a person aggrieved by a decision. The respondent named in the document prepared in the Commissioner's office is the Department of Health and Human Services. The applicant in these proceedings is the Acting Secretary of that department. He submitted that he is a person aggrieved by the decision of the Chief Justice because of the consequences which flow from the filing of the documents which the Chief Justice directed should be accepted for filing. The documents accepted for filing were the Commissioner's certificate dated 2 June 2015 and a copy of a document attached to it. By virtue of the AD Act, s 90, the terms of any agreement reached at conciliation could be enforced once these documents were filed with the Court. The applicant submitted that, because the acceptance for filing would allow Mr Ralph to enforce the terms of the written document certified as a record of the agreement reached at the conciliation conference, which document was not signed by a representative of the department, he is a person aggrieved by the decision of the Chief Justice. I accept that he is a person aggrieved and therefore has standing to make the application for judicial review.
In substance, counsel for the applicant submitted that "the record" for the purpose of s 90(1)(b) had to be, not only a record prepared by the Commissioner or an authorised person, but also one signed by each party to the resolution of any complaint. The Chief Justice, on the other hand, determined that, for a document to be a record for the purpose of s 90(1)(b), it was sufficient if it complied with s 76(1). It did not also have to comply with s 76(2). That is, there was no requirement that the record had to be signed by both parties before it could be filed with the Court pursuant to s 90(1)(b).
Counsel for the applicant submitted that this interpretation resulted in s 76(2) having no work to do at all. The Chief Justice took the view that the purpose of the Act would be defeated were it possible for a person, who had attended a conciliation conference and reached an agreement at that conference, to refuse to sign a record of the terms of an agreement and thus prevent enforcement.
Counsel for the Commissioner submitted that s 76(1) provides for the preparation of a record by the Commissioner or an authorised person. That is, the record comes into existence as a result of the Commissioner or an authorised person recording the terms of any agreement reached to resolve a complaint. Once the record is made, there is a requirement that it be signed by each party. There is nothing in s 76 which provides that the record prepared pursuant to s 76(1) is somehow not a record absent the parties' signatures. The record is a document of the Commissioner, not the parties.
In the course of his reasons, the Chief Justice considered principles of statutory interpretation. He referred at [9] to Project Blue Sky Inc v Australian Broadcasting Authority (1988) 195 CLR 355 at [78], and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47] for the proposition that, when determining the proper interpretation of a legislative provision, it is necessary to consider the text, context and purpose of that provision. His Honour then referred, at [11], to s 8A(1) of the Acts Interpretation Act 1931, which provides that an interpretation that promotes the purpose or object of a legislative provision is to be preferred to one that does not. No issue is taken on this appeal with his Honour's consideration of that material. It is the conclusion that he reached thereafter which is in issue.
The purpose of the AD Act is to prohibit discrimination and other specified conduct, and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to such discrimination and conduct. Part 6 of the AD Act deals with dispute resolution. Division 3 of that Part deals with mechanisms by which disputes may be resolved. One mechanism is a conciliation conference. That Division provides that the Commissioner is to resolve disputes by conciliation if possible, and provides that she may direct parties to attend a conciliation conference for that purpose. That is what occurred in the present case. Section 76 then deals with resolved complaints. It must be inferred from the scheme of the AD Act that s 76 relates to complaints resolved at a conciliation conference.
Section 76(1) provides that the Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint. There is no provision in the legislation for the form in which that record is to be kept. There is also nothing which requires the Commissioner or any authorised person to engage in some sort of negotiation, after a conciliation conference and before any record is prepared for the purpose of s 76(1), to allow parties to any agreement reached at conciliation to add additional or altered terms. The Commissioner's role is to record, for the purpose of s 76(1), terms of agreement reached to resolve a complaint at the conciliation conference (my emphasis). From the sequence of events in this matter, it must be inferred that, from the Commissioner's point of view, any document which purported to set out the terms of an agreement reached at the relevant conciliation conference, provided she was satisfied it represented the terms of the agreement reached, could be the relevant record. In this case, that was the document prepared and sent to Mr Ralph with a couple of corrections made by a representative of the applicant.
There is nothing in the AD Act which provides that a document cannot be a record for the purpose of s 76(1) unless it is signed by the parties represented at a conciliation conference. As I indicated, it is for the Commissioner or her representative to prepare the relevant record and in effect determine what is the relevant record.
Section 90(1)(b) refers to a copy of the record certified by the Commissioner or an authorised person. It must be inferred it is for the Commissioner to determine what is the relevant record and for the Commissioner or an authorised person to then certify that record for the purpose of s 90. I appreciate that s 90(1)(b) refers to a "record made under section 76", and not a record made pursuant to s 76(1). Counsel for the applicant submitted that the fact that s 90(1)(b) referred to s 76 and not s 76(1) meant it was the intention of Parliament that a record for the purpose of s 76 must be one which complies with all aspects of s 76. With respect, I do not accept that submission.
The issue raised by the Chief Justice to the effect that a failure to sign a record prepared by the Commissioner or an authorised person would enable a party to resile from an agreement and prevent enforcement after the event, would entirely defeat the process set out in the AD Act is a very powerful reason for concluding that Parliament's intention was not to require signatures before a record could be determined to be a record.
In all the circumstances I am satisfied that:
· to be a record for the purpose of the AD Act, s 90(1)(b), a document is not required to be signed by parties to any agreement reached at a conciliation conference,
· it is for the Commissioner or an authorised person to determine the form which a record will take, and
· the document certified by the Commissioner on 2 June 2015 was a record for the purpose of s 90(1)(b).
The application for review should, in my view, therefore fail, and be dismissed.

File No 2130/2015

MICHAEL PERVAN, ACTING SECRETARY DEPARTMENT OF HEALTH AND HUMAN SERVICES v THE HONOURABLE CHIEF JUSTICE ALAN BLOW

REASONS FOR JUDGMENT FULL COURT

WOOD J
7 April 2017

The question which arises is whether it is a requirement of the Anti-Discrimination Act 1998 ("the Act") that if a conciliation conference is held, a record of the terms of the agreement reached must be signed by all the parties to the agreement before it can be filed with the Supreme Court. Once a record of agreement and affidavit of non-compliance is filed in the Supreme Court, the agreement is enforceable under the Act, (s 90(2)), as if it were an order of the Supreme Court. The question arose because the District Registrar of the Supreme Court in Burnie refused to file a record of agreement because it had not been signed by both parties. The learned Chief Justice determined that the proper construction of the Act meant that the failure of one party to sign a record of agreement did not prevent that agreement from being filed with the Court for the purpose of being enforced under the Act. His Honour determined that the District Registrar must be directed to file the document.
The factual background is succinctly set out in the judgment of his Honour of 7 October 2015 at [2]:
"The background to his application is as follows:
·Mr Ralph made a complaint to the Anti-Discrimination Commissioner pursuant to the provisions of the Anti-Discrimination Act 1998 ('the Act'), complaining that his daughter, Helen Ralph, had been discriminated against on the basis of disability by officers of the Department of Health and Human Services.
·A conciliation conference was held on 8 May 2014 pursuant to s 75 of the Act. It was attended by Mr Ralph, his daughter, another family member, and officers of the department.
·After that conference, a document was prepared. That document purported to record the terms of an agreement reached at the conference that resolved the complaint. That document was signed by Mr Ralph, but not by anybody from the department. Evidently a decision was made within the department that no one from the department would sign the document. I will refer to it as 'the agreement document'.
·On 18 March 2015 the Anti-Discrimination Commissioner wrote to Mr Ralph forwarding the agreement document, observing that it had not been signed by a 'duly authorised signatory of the Department', and expressing the view that, despite that fact, the department was bound by the agreement.
·Mr Ralph took the view that an agreement had been reached at the conciliation conference, and that steps should be taken to enforce it. On 17 June 2015 he lodged two documents for filing in the Burnie Registry of the Court. One of them was a copy of the agreement document, certified by the Anti-Discrimination Commissioner to be a true copy. The other was an affidavit.
·On 2 July 2015 the District Registrar at Burnie decided not to accept the certified copy of the agreement document for filing. She took the view that Mr Ralph did not have the right to file a certified copy of an agreement unless the agreement had been signed by both parties.
·On 2 September 2015 Mr Ralph made an application, by letter, for a direction under r 38 requiring the District Registrar to accept his documents for filing. That is the application that is now before me."
The Acting Secretary of the Department of Health and Human Services has brought an application to this Court under s 27(1)(a) of the Judicial Review Act 2000 ("the JR Act"), seeking that the decision of the Chief Justice be quashed. The JR Act has application as the decision made by the learned Chief Justice is properly regarded as administrative. The direction that his Honour made to the District Registrar to file the document was to assist her in the carrying out of an administrative task. Further, the applicant is a person "aggrieved" within the terms of s 27(1)(a). The consequence of the filing of the document is, as noted, that the record of agreement is enforceable as if it were an order of the Supreme Court: s 90(2) of the Act. The act of filing would enable enforceability of the terms of the document which was not signed by a representative of the Department.
The application for an order for review sets out two grounds:
"1The Respondent erred in law in construing the phrase 'a copy of the record made under section 76', appearing in s90(1)(b) of the Anti-Discrimination Act, in such a way as to encompass a document which was not 'signed by each party' as required by s76(2) if [sic] the Anti-Discrimination Act (s17(2)(f) Judicial Review Act);
2The Respondent erred in law in determining that an agreement, which purported to be a copy of the record referred to in s76(1) of the Anti-Discrimination Act, was such a record when such document was not and could not be found to be such a record (s172(2)(f) Judicial Review Act)."
The provisions of the Act said to have been misconstrued by the Chief Justice are ss 76 and 90. The Anti-Discrimination Commissioner or an authorised person may direct a person to take part in a conciliation conference before, during or after the investigation of a complaint lodged under the Act. If the parties reach agreement at a conciliation conference, or indeed, reach an agreement in any other way (s 74), the Commissioner or authorised person is to record the terms of the agreement (s 76(1)), and significantly the record made is to be signed by each party (s 76(2)). Section 76 provides:
"76      Resolved complaint
(1)     The Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint.
(2)   The record made by the Commissioner or authorised person is to be signed by each party.
(3)   The Commissioner or authorised person is to —
(a)provide a copy of the record to each party; and
(b)hold the original record on file.
(4)   An agreement is enforceable as if it were an order made by the Tribunal under section 89(1)."
Section 90 provides for an expeditious means of enforcement of orders made by the Tribunal after an inquiry, and also of agreements reached by the parties:

"90      Enforcement of orders
(1)     A person, or the Commissioner at the request of a person, may enforce an order made under section 89(1) or an agreement to resolve a complaint by filing the following documents, free of charge, in the Supreme Court:
(a)in the case of an order, a copy of the order certified by —
(i)    the member who presided over the inquiry, if the Tribunal consisted of more than one person; or
(ii)   the member who constituted the Tribunal, if the Tribunal only consisted of one person;
(b)in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner or an authorised person;
(c)an affidavit stating the extent to which the order or agreement has not been complied with.

(2) If the documents are filed in accordance with this section, the order made by the Tribunal or agreement is enforceable as if it were an order of the Supreme Court."

The question is whether "a copy of the record made under section 76" in s 90 comprises a signed record of the agreement, or merely the Commissioner's record of the agreement. The task of deciding this question is one of statutory construction and the Court's approach is set by well-established principles. As stated by the learned Chief Justice at [9], when determining the proper interpretation of a legislative provision, it is necessary to consider the text, context and purpose of that provision: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [78]; Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47]. His Honour also noted s 8A(1) of the Acts Interpretation Act 1931 which requires that an interpretation that promotes the purpose or object of a legislative provision is to be preferred to one that does not.
Commencing with the text, the words of s 90(1)(b) refer to "a copy of the record made under section 76 and certified by the Commissioner or an authorised person". His Honour regarded as significant the fact that the language of s 76(2) treats the document as constituting a record made by the Commissioner or authorised person before it is signed by each of the parties. As his Honour stated at [12] "If an unsigned document constitutes a 'record' for the purposes of s 76(2), it is logical to treat it as constituting a 'record made under section 76 and certified by the Commissioner or an authorised person' for the purposes of s 90(1)(b)." I respectfully agree with the validity and logic of that observation. However, it can also be validly argued that "a copy of the record made under section 76" is one that complies with all the requirements in s 76, including the signing by each party pursuant to s 76(2), which becomes part of the record, and that the copy of the record is not just the recording of the agreement in s 76(1). The expansive reference to s 76 as a whole in s 90(1)(b), rather than just s 76(1), would suggest that the words "record made under section 76" means the complete record made in accordance with the entire section, including the signing of the record.

The text offers indications that the words of s 90(1)(b) mean a signed record. The first indication is the structure of s 76. Subsection (4) provides that an agreement is enforceable as if it were an order made by the Tribunal under s 89. This subsection appears after the requirements of recording, signing, providing a copy to the parties and holding the original on file. It seems enforceability follows from these steps.
A stronger indication is provided by the terms of s 90(1)(b) which introduces the requirement that the Commissioner is to certify a copy of the record. It can be assumed that the purpose of this requirement is as a verification of the original, and Parliament intended that the certification would be in terms that the copy is a true or correct copy of the original held on file. Significantly, the obligation to hold the original on file is a step subsequent to recording, signing by each party and providing a copy of the record to each party. I conclude that having regard to the terms of the Act, it is sufficiently clear that the record of agreement is to be signed by the parties as a precondition for filing.
The other key consideration is which interpretation best fulfils the purpose of s 90 and the scheme of the relevant legislative provisions. His Honour treated this consideration as significant in construing s 90(1)(b). His Honour stated at [10]:
"In this case, the scheme of the relevant legislative provisions is clear. If the parties to an anti-discrimination complaint reach an agreement that resolves the complaint at a conciliation conference, then their agreement is to be recorded and, once recorded, may be enforced in the Supreme Court as if it were an order of the Supreme Court. If, between the making of an agreement and the recording of that agreement, either party were able to escape from that agreement simply by refusing to sign the required document, the purpose of the relevant legislative provisions could be very easily thwarted."
However, part of the scheme that should not be overlooked is that the parties sign the record. This requirement that the parties sign the record has an obvious and desirable purpose. It promotes accuracy and is an important safeguard against error. Errors could be made by the Commissioner in misconstruing the positions of the parties, or there could be a misunderstanding by one of the parties about the position of the other. The context of the requirement is important. The parties will often be unrepresented at a conciliation conference (see s 75(3)), they can be compelled to attend (s 75(1)), and conferences are held in private (s 75(5)), and while this is for good reason, to promote conciliated outcomes, the proceedings are not transparent and there is no oversight by the public. It should also be noted that there is the potential for agreement to be reached as to very high awards of compensation (see s 89(d)), compensation is uncapped) and agreements may be detailed or complex. The learned Chief Justice noted that the purpose of the legislative provisions could be easily thwarted if, between the making of an agreement and the recording of that agreement, either party were able to escape from that agreement simply by refusing to sign the document. Undoubtedly, that is a potential consequence if signing is a requirement and a prerequisite for enforceability. I acknowledge that a refusal to sign may occur due to any number of reasons, not just inaccuracy of the record of agreement, and that it may occur because one of the parties has reflected on their position and changed their mind. However, there are other potential consequences if an unsigned record can be filed and become enforceable which are more troubling in terms of an increased risk of error in the record, an undermining of public confidence in the conciliation process, and even in the efficacy of the legislation.
If signing by the parties is not a prerequisite for enforceability under s 90, then the safeguard it affords is undermined, leading to an increase in the risk of error in recording. It should be noted that there is no mechanism to set aside an agreement filed under s 90. While I assume for the purpose of deciding this case that there would be avenues by which an erroneous record of agreement which has been filed may be contested, this is likely to be an unwieldy process, especially for unrepresented parties. Further, given the parties will often be unrepresented, there is the prospect that an erroneous record, which did not accurately reflect the agreement reached, may remain unchallenged and ultimately enforced.
I do not regard the consequence of a party "thwarting" an agreement by refusing to sign it as strongly at odds with the scheme or the objects of the Act. It does not seem to me that such a high premium is placed on resolution by agreement that accuracy of the record of agreement is subservient to that objective.
Counsel for the Commissioner invoked the remedial or beneficial purpose of the Act as favouring a liberal construction, and as lending support to the interpretation that signing is not a prerequisite: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; AB v Western Australia [2011] HCA 42, 244 CLR 390 at [24]. It was argued that a liberal approach should be adopted noting that "it is frequently the case that those who are the subject of acts of discrimination and prohibited conduct are vulnerable and marginalised". It seems to me that the general beneficial purpose of the Act is of little assistance in determining competing constructions of a machinery provision such as s 90. Furthermore, the general purpose of protecting or enforcing human rights would not favour, and indeed, would be at odds with an interpretation of a provision which would have the effect of diluting a safeguard against error when the error may potentially disadvantage the legitimate interests of a complainant or respondent.
Counsel for the respondent relied upon an objective of the Act, that being an efficient, timely and less onerous complaints handling process, arguing that the Chief Justice's interpretation best gave effect to this objective. While requiring the signing of an agreement may have the practical consequence of allowing a "cooling off period" to the parties, there will be cases where that requirement will also avoid an outcome that did not reflect the agreement reached. In any event, the requirement of signature is not an onerous requirement, and need not give rise to any real delay. In fact, a delay of any length may be avoided by the Commissioner making the record at the time of the conciliation conference and having the parties sign it at the conference.
It was argued for the Commissioner that in the event an agreement was reached but a party refused to sign the record of that agreement, the complaint could not be referred to the Tribunal for inquiry, and if it was, it could be struck out on the basis that an agreement had been reached. If an unsigned agreement could neither be enforced under the Act nor referred for inquiry, then such a consequence would be a weighty factor. The undesirable consequence of a party falling between two stools in this way would favour the construction that the record of agreement need not be signed to be enforced under the Act. However, I do not accept the argument that this is a consequence of an agreement being unsigned. In fact, if an agreement is not signed and cannot be enforced under the Act, the complaint may be referred to the Tribunal for inquiry, and the merits of the complaint determined by the Tribunal. The Commissioner is to refer the complaint to the Tribunal for inquiry if the Commissioner has attempted to "resolve the complaint by conciliation" but has not been successful: s 78(1)(b). If signing the record is an essential prerequisite to enforceability under s 90(1)(b), then it can be said that, absent signing by the parties (and assuming the agreement is not being enforced by other means involving an action), although agreement was reached, the complaint has not been "resolved" by conciliation. It is the fact that the complaint has not been "resolved" which is the trigger for referral. This approach is reinforced by the terms of s 76(1) which maintains the distinction between reaching an agreement and resolving the complaint. Mere recording of the terms of any agreement reached is not equated to resolving a complaint. The result is that if the record of agreement is unsigned by one of the parties, the complaint may be referred to the Tribunal for inquiry and the merits determined.
It is plain from the language of the legislation that the requirement for the parties to sign the agreement is a prerequisite of filing under s 90. Such a construction is consistent with the scheme of the Act which evidently seeks to provide a safeguard against error. In conclusion, the decision of the Chief Justice that signing of the record by both parties was not a prerequisite was an error of law. I would quash the decision and the direction to the District Registrar to file the documents lodged by Mr Ralph.

File No 2130/2015

MICHAEL PERVAN, ACTING SECRETARY DEPARTMENT OF HEALTH AND HUMAN SERVICES v THE HONOURABLE CHIEF JUSTICE ALAN BLOW

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
7 April 2017

The application

The applicant, the Acting Secretary of Health and Human Services, being a person aggrieved by the decision of the respondent, the Honourable Chief Justice Alan Blow, to direct the District Registrar of the Supreme Court in Burnie to file documents lodged by Arthur Samuel Ralph, has applied to this Court for an order pursuant to s 27(1)(a) of the Judicial Review Act 2000 that the decision be quashed.
The issues in this application are:
A whether the Anti-Discrimination Commissioner is entitled to intervene in the proceedings;
Bwhether the direction given by respondent to the District Registrar is an administrative action; and, if so
C whether the direction was invalid.

The factual background

Before turning to a consideration of the issues the factual background to the respondent's decision must be understood. It is conveniently set out in his Honour's reasons for determination dated 7 October 2015 at [2] as follows:
"The applicant, Sam Ralph, has made an application under r 38 of the Supreme Court Rules 2000, for a direction to the District Registrar at Burnie to accept certain documents for filing.
2         The background to his application is as follows:
• Mr Ralph made a complaint to the Anti-Discrimination Commissioner pursuant to the provisions of the Anti-Discrimination Act 1998 ('the Act'), complaining that his daughter, Helen Ralph, had been discriminated against on the basis of disability by officers of the Department of Health and Human Services.
• A conciliation conference was held on 8 May 2014 pursuant to s 75 of the Act. It was attended by Mr Ralph, his daughter, another family member, and officers of the department.
•          After that conference, a document was prepared. That document purported to record the terms of an agreement reached at the conference that resolved the complaint. That document was signed by Mr Ralph, but not by anybody from the department. Evidently a decision was made within the department that no one from the department would sign the document. I will refer to it as 'the agreement document'.
•          On 18 March 2015 the Anti-Discrimination Commissioner wrote to Mr Ralph forwarding the agreement document, observing that it had not been signed by a 'duly authorised signatory of the Department', and expressing the view that, despite that fact, the department was bound by the agreement.
•          Mr Ralph took the view that an agreement had been reached at the conciliation conference, and that steps should be taken to enforce it. On 17 June 2015 he lodged two documents for filing in the Burnie Registry of the Court. One of them was a copy of the agreement document, certified by the Anti-Discrimination Commissioner to be a true copy. The other was an affidavit.
•          On 2 July 2015 the District Registrar at Burnie decided not to accept the certified copy of the agreement document for filing. She took the view that Mr Ralph did not have the right to file a certified copy of an agreement unless the agreement had been signed by both parties.
• On 2 September 2015 Mr Ralph made an application, by letter, for a direction under r 38 requiring the District Registrar to accept his documents for filing. That is the application that is now before me."

The legislative provisions

Rule 38 of the Supreme Court Rules 2000 provides as follows:
"A party may apply to the Court or a judge ex parte in a summary way for a direction that the registrar do any act which —
(a)       a registrar is required or entitled to do; and
(b)       the party requires to be done; and
(c)       has not been done."
When the parties to an anti-discrimination complaint resolve that complaint at a conciliation conference pursuant to s 75 of the Anti-Discrimination Act 1988 (the Act), s 76 of the Act requires the Anti-Discrimination Commissioner or an authorised person to record the terms of their agreement, and requires each party to sign the record that is made of that agreement.
Section 76 provides as follows:
"(1)     The Commissioner or an authorised person is to record the terms of any agreement reached to resolve a complaint.
(2)       The record made by the Commissioner or authorised person is to be signed by each party.
(3)       The Commissioner or authorised person is to —
(a)       provide a copy of the record to each party; and
(b)       hold the original record on file.
(4) An agreement is enforceable as if it were an order made by the Tribunal under section 89(1)."
Section 90 of the Act makes provision for orders of the Tribunal and agreements between parties to be enforceable in the Supreme Court. The provisions of s 90(1) and (2) are as follows:
"(1) A person, or the Commissioner at the request of a person, may enforce an order made under section 89(1) or an agreement to resolve a complaint by filing the following documents, free of charge, in the Supreme Court:
(a) …
(b)in the case of an agreement, a copy of the record made under section 76 and certified by the Commissioner or an authorised person;
(c)an affidavit stating the extent to which the order or agreement has not been complied with.
(2) If the documents are filed in accordance with this section, the order made by the Tribunal or agreement is enforceable as if it were an order of the Supreme Court."

The decision sought to be impugned

For the reasons that the respondent subsequently gave, and to which I will turn shortly, his Honour determined that the District Registrar be directed to file the documents lodged by Mr Ralph.
His Honour expressly noted in his reasons for determination that he did not know whether the State might wish to contend that, contrary to the position taken by the Commissioner and Mr Ralph, in fact no agreement was reached at the conciliation conference. His Honour made it clear that he was leaving open the question of whether such a contention may be raised by the State if Mr Ralph pursued enforcement proceedings.
The reasons given by the respondent for the determination made were set out at [8]–[12] of his Honour's decision as follows:
"8 After receiving Mr Ralph's application under r 38, I invited the Assistant Director of Public Prosecutions, Mr Turner, to make written submissions on behalf of the department. He made submissions by letter dated 6 October 2015. In his letter he drew my attention to the requirement of s 76(2) that the record made by the Commissioner 'is to be signed by each party'. He submitted that, unless each party signed the record made by the Commissioner, the record made by the Commissioner did not constitute, within the meaning of s 90(1)(b), 'a copy of the record made under section 76'.
9 As Mr Turner pointed out, when determining the proper interpretation of a legislative provision, it is necessary to consider the text, context and purpose of that provision: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 195 CLR 355 at [78]; Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
10 In this case, the scheme of the relevant legislative provisions is clear. If the parties to an anti-discrimination complaint reach an agreement that resolves the complaint at a conciliation conference, then their agreement is to be recorded and, once recorded, may be enforced in the Supreme Court as if it were an order of the Supreme Court. If, between the making of an agreement and the recording of that agreement, either party were able to escape from that agreement simply by refusing to sign the required document, the purpose of the relevant legislative provisions could be very easily thwarted.
11 Section 8A(1) of the Acts Interpretation Act 1931 requires that an interpretation that promotes the purpose or object of a legislative provision is to be preferred to one that does not. The words 'a copy of the record made under section 76' in s 90(1)(b) need to be interpreted with that requirement in mind. If there were an agreement under s 76, and one party to that agreement refused to sign the record of that agreement despite the requirement made by s 76(2), then the interpretation contended for on behalf of the department would certainly not promote the purpose or object of the Act. But the purpose or object of the Act would be promoted by interpreting the words in question as referring to the record of the agreement made pursuant to s 76(1), whether or not it was signed by each party as required by s 76(2).
12 It is also significant that the language of s 76(2) treats the document in question as constituting a 'record made by the Commissioner or authorised person' before it is signed by each of the parties. If an unsigned document constitutes a 'record' for the purposes of s 76(2), it is logical to treat it as constituting a 'record made under section 76 and certified by the Commissioner or an authorised person' for the purposes of s 90(1)(b), even if one or more parties have not signed it."

A decision under an enactment

As to the question of whether jurisdiction under the Judicial Review Act is enlivened in this case by the respondent's determination meeting the requirement that it be a decision to which that Act applies, namely "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)", the written submissions filed on behalf of the applicant by his counsel, Mr O'Farrell SC and Ms Rudolf, contend at [15]-[17] as follows:
"Administrative Action
15 The Decision is a decision to which the Judicial Review Act 2000 applies, being a decision of an administrative character made under an enactment, namely, the Supreme Court Rules 2000, rule 38, which states:
'38         Directions to registrar
A party may apply to the Court or a judge ex parte in a summary way for a direction that the registrar do any act which –
(a)     a registrar is required or entitled to do; and
(b)     the party requires to be done; and
(c)     has not been done.'
16 The Decision is properly characterised as administrative because the direction made to the registrar under rule 38 is to assist the registrar in the task of administration; it was not a determination of the rights of parties after a hearing.
17     The Applicant is a person aggrieved by the Decision, as the registration of the relevant document in the Supreme Court causes the agreement to be 'enforceable as if it were an order of the Supreme Court' (s 90(2))."

I am satisfied that those submissions are correct and should be accepted. The contrary was not contended by Ms Cuthbertson, counsel for the Commissioner, Robin Banks, who was granted leave by the Court to appear as amicus curiae.
The learned Chief Justice was not, in my view, acting in a judicial capacity when he gave the direction to the District Registrar at the request of Mr Ralph. His Honour was acting as a judge of the Court but in an administrative capacity. He was not quelling a controversy between the parties to the agreement sought to be enforced by the filing of the relevant documents. Any dispute was one between Mr Ralph and the District Registrar of the Court, and r 38 of the Rules is designed specifically to resolve any such dispute administratively.
The fact that his Honour invited submissions from the Assistant Director of Public Prosecutions before he made the requested direction does not alter the proper characterisation of the direction his Honour subsequently gave as administrative.

Was the direction invalid?

The applicant contends that the respondent's decision involved two errors of law namely:
"1 the Respondent erred in law in construing the phrase 'a copy of the record made under section 76', appearing in s 90(1)(b) of the Anti-Discrimination Act, in such a way as to encompass a document which was not 'signed by each party' as required by s 76(2) of the Anti-Discrimination Act;
2 the Respondent erred in law in determining that an agreement, which purported to be a copy of the record referred to in s 76(1) of the Anti-Discrimination Act, was such a record when such document was not and could not be found to be such a record."
The applicant argues that the reference in s 90(1) of the Act to "a copy of the record made under section 76 of the Act" embraces the whole of s 76. That is to say, that "the record" referred to is the record of the agreement reached made under s 76(1) by the Commissioner after the record is signed by each of the parties to that agreement as required by s 76(2), and after it is then provided to the parties as required by s 76(3).
Put another way, the argument is that the copy of "the record" referred to in s 90(1)(b) as "a copy of the record made under section 76 and certified by the Commissioner or an authorised person" is a copy of the record of the agreement made by the Commissioner under s 76(1), signed by the parties under s 76(2), provided to each party under s 76(3), and then certified by the Commissioner (or an authorised person).
The applicant argues that if the reference in s 90(1)(b) was merely a reference to the record of the agreement made by the Commissioner under s 76(1) whether or not it was signed by each of the parties under s 76(2) and then provided to them under s 76(3), then s 90(1)(b) would have referred to "a copy of the record made under subsection 76(1)".
The applicant's argument runs that if the Act referred simply to an agreement evidenced by the record prepared by the Commissioner, compliance with s 76 might be said to have been met in this case, but the requirement for the signatures of the parties in s 76(2) is in order to provide the necessary verification of the agreement reached.
The applicant contends that what is filed in this Court under s 90(1)(b) for the purpose of enforcing the agreement should be a true record of any agreement, and that the requirement for the parties to sign the record under s 76(2) is the way in which the Act ensures that the document prepared by the Commissioner accurately reflects that the parties are in fact in agreement.
In his reasons for determination, the respondent referred to the necessity to consider the text, context and purpose of a legislative provision when determining the proper interpretation of that provision. His Honour cited Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [78]; Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) HCA 41, 239 CLR 27 at [47].
His Honour went on to conclude that in the present case the scheme of the relevant legislative provisions was clear. That was, that if the parties to an anti-discrimination complaint reach an agreement that resolves the complaint at a conciliation conference, then their agreement is to be recorded and, once recorded, may be enforced in the Supreme Court as if it were an order of the Supreme Court.
His Honour noted that if, between the making of an agreement and the recording of that agreement, either party were able to escape from that agreement simply by refusing to sign the required document, then "the purpose of the relevant legislative provisions could be very easily thwarted".
His Honour was of the view that in this regard it was of significance that the language of s 76(2) treats the document in question as constituting a "record made by the Commissioner or authorised person" before it is signed by each of the parties. As I apprehend it, he was there referring to the fact that s 76(2) refers to "the record made by the Commissioner" as being the document that was to be signed by each party and thus being the relevant record before it was signed by anyone. As has already been noted, his Honour said at [10] of his reasons:
"If an unsigned document constitutes a 'record' for the purposes of s 76(2), it is logical to treat it as constituting a 'record made under section 76 and certified by the Commissioner or an authorised person' for the purposes of s 90(1)(b), even if one or more parties have not signed it."
As to that, the applicant argues that in a conciliation conference there may be "stresses, pressures and misunderstandings" and that the purpose of s 76 should not extend to binding a party to a document which the party considers to be an inaccurate written record of a verbal agreement. The applicant submits that the fact that the Commissioner may consider that an agreement has been reached "cannot be used to foist 'an agreement' upon a party who does not in fact agree to the specific terms of the 'agreement'". The applicant contends that, "until the terms are clear and specific, reduced to writing and verified/confirmed by the signatures of the parties, then any dispute about the terms cannot be resolved".
The Commissioner contends that for the reasons set out by the respondent in his Honour's determination, an interpretation of s 90(1)(b) that regards the document produced by the Commissioner or an authorised person pursuant to s 76(1) as a "record made under section 76" regardless of whether it is signed or not is one that is consistent with the clear and ordinary meaning of the text of the relevant provisions and promotes the purpose and object of the Act.

Discussion

There is some merit and considerable attraction in the applicant's argument, however I am of the view that the possible problem of the Commissioner inaccurately recording a verbal agreement reached at a conference is not as significant as the later problem of one of the parties having second thoughts about the agreement reached and refusing to sign the record of the agreement. Even were it possible in such circumstances for a new conciliation conference to be directed, or for the matter to be referred to the Tribunal for hearing, it would in my view be unfair on the party entitled to the benefit of a concluded agreement to require such a course. Only one construction of ss 76 and 90(1)(b) can eliminate and avoid that later problem, and that is the construction adopted by the respondent.
That later problem was exactly that which arose in Pavlovic v Chubb Security [2007] TASADT 5. In that case an agreement was reached at a conciliation conference, but the complainant shortly after indicated she was not prepared to settle on the basis of the terms reached, and advised the Commissioner that she did not wish to participate in another conciliation conference. The complainant accepted that the draft written terms accurately reflected the agreement reached at the conference but subsequently she felt that the agreement was not satisfactory and she would not sign the record of it.
The Tribunal member hearing the reference, Ms A Smith, held at [43] of her reasons:
"Section 76(1) of the Act requires the Commissioner or an authorised person to 'record the terms of any agreement reached to resolve a complaint.' That record must then be signed by the parties. However, the record is not the agreement and the two terms are used in distinct ways in the provision. I note that it is the agreement that is enforceable, not the record." (Original emphasis.)
In my view, that observation has force and is, of course, in line with the respondent's reasoning in the present case, with which, I respectfully agree and adopt.
In my view, the interpretation adopted by the respondent promotes the purpose or object of the Act and is to be preferred to the construction contended for by the applicant which does not promote the purpose of s 90(1)(b) which is the enforcement of agreements reached at conciliation conferences.
The applicant submits that Pavlovic v Chubb Security did not concern the enforcement of the agreement in question, and that while the Tribunal considered there was a binding agreement the question of whether the unsigned agreement could have been filed under s 90 of the Act was not at issue. That is true but that does not undermine the validity of the respondent's reasoning as to the proper construction of s 76. The significance of Pavlovic is that it throws up a clear example of an unambiguous agreement being unarguably reached at a conciliation conference and then one party later reneging on the agreement.
The applicant further argues that an important distinction between that case and the present is that the complainant in Pavlovic v Chubb Security did not assert that the draft written terms prepared by the Commissioner did not reflect the agreement that was reached at the conciliation conference, but rather that the complainant was dissatisfied because she contended that her advocate had acted in excess of authority when reaching that agreement on her behalf.
In my view, the reason that the complainant refused to sign the record in Pavlovic is unimportant. What is important is that the construction of ss 76 and 90(1)(b) contended for by the applicant would have the result that if, for whatever reason, a party to an agreement refused to sign the record of an agreement reached at a conciliation conference, then that agreement could not be enforced. Such a result cannot be attributed to Parliament and is not required by the text of s 76. Indeed the language of that section points to the opposite outcome as being that which is intended, and such an outcome offends neither common sense nor fairness.
It is of course undesirable that there might be cases of inaccurate recording of the terms of agreements reached or questions of whether there was an enforceable agreement reached at all. However, while s 90(2) of the Act provides that if the documents required are filed in accordance with the section, the agreement reached at a conciliation conference is enforceable as if it were an order of the Supreme Court, it cannot be conclusively stated that all argument concerning the enforceability of the agreement or its terms is thereby foreclosed. Accordingly, I do not find it necessary or appropriate to further consider that question. An examination of the possible remedies available to a party to an agreement, or a purported agreement, after the filing of the relevant documents pursuant to s 90 of the Act, once it is accepted that possible remedies exist, does not assist the resolution of the issue of construction under consideration in any dispositive manner.
Indeed, as I have already observed, in the present case his Honour made it clear that he did not know whether the applicant might wish to contend that, contrary to the position taken by the Commissioner and Mr Ralph, in fact no agreement was reached at the conciliation conference. His Honour made it clear that he was leaving open the question of whether such a contention could be raised by the applicant if Mr Ralph pursued enforcement proceedings.

Disposition

In my view, neither of the errors asserted by the applicant has been made out and I would dismiss the application.

[2017] TASFC 3

7 April 2017

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