Sandy v Queensland Human Rights Commissioner

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SUPREME COURT OF QUEENSLAND

CITATION:

Sandy v Queensland Human Rights Commissioner [2022] QSC 277

PARTIES:

ALEC RICHARD SANDY

(applicant)

v
QUEENSLAND HUMAN RIGHTS COMMISSIONER

(respondent)

FILE NO/S:

BS No 644 of 2022

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2022

JUDGE:

Williams J

ORDER:

Given my findings set out in these reasons, I will hear further from the parties in respect of the appropriate form of orders, including costs.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – HUMAN RIGHTS LEGISLATION – where the complainant is a 30 year old Aboriginal man diagnosed with gastric cancer – where the complainant made an application for exceptional circumstances parole for the purpose of receiving culturally appropriate medical care in community – where the parole board rejected the application for exceptional circumstances parole – where the complainant contends that the treatment by the parole board constitutes unlawful direct and indirect discrimination on the attribute of race

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW APPLIES – DECISIONS UNDER AN ENACTMENT – where the complainant lodged a Human Rights and Anti-Discrimination complaint with the Queensland Human Rights Commission – where the Human Rights Commissioner accepted the Human Rights complaint – where the Human Rights Commissioner purportedly made a decision to refuse to accept a complaint under s 136 of the Anti-Discrimination Act 1991 (Qld) – where the complainant seeks a review of the Commissioner’s decision – where the complainant alleges that the Commissioner failed to take into account a relevant consideration, took into account an irrelevant consideration, or that the decision was unreasonable – whether the decision of the Commissioner is reviewable under s 20 of the Judicial Review Act 1991 (Qld) – whether the decision of the commissioner was made beyond power and amounts to jurisdictional error

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 9, s 10, s 11, s 101, s 134, s 135, s 136, s 138, s 139, s 140, s 140A, s 141, s 142, s 154A, s 155, s 156, s 166, s 164A, s 166, s 168, s 168A, s 169, s 170, s 174A, s 204, s 205, s 208, s 209, s 210
Corrective Services Act 2006 (Qld), s 194
Human Rights Act 2019 (Qld), s 8, s 13, s 28, s 58

Judicial Review Act 1991 (Qld), s 4, s, 5, s, 20, s 21, s 23

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77
Buderim Ginger Ltd v Booth [2003] 1 Qd R 147
Certain Children v Minister for Families and Children [No 2] (2017) 52 VR 441
CIC Insurance Ltd v Bankstown Football Club Inc (1997) 187 CLR 384
Goode v Common Equity Housing Ltd [2014] VSC 585
Griffith University v Tang (2005) 221 CLR…

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Details
Case
[2022] QSC 277
Decision Date

CaseChat Overview and Summary

The case of Sandy v Queensland Human Rights Commissioner involves an Aboriginal man diagnosed with gastric cancer who applied for exceptional circumstances parole to receive culturally appropriate medical care in the community. The parole board rejected the application, and the complainant alleged that the treatment by the parole board constituted unlawful direct and indirect discrimination on the attribute of race. The complainant lodged a Human Rights and Anti-Discrimination complaint with the Queensland Human Rights Commission. The Commissioner accepted the Human Rights complaint but rejected the Anti-Discrimination complaint, and the complainant seeks a review of the Commissioner’s decision.

The legal issues the court was required to decide include whether the decision of the Commissioner is reviewable under s 20 of the Judicial Review Act 1991 (Qld) and whether the decision of the Commissioner was made beyond power and amounts to jurisdictional error. The court also needed to consider whether the Commissioner failed to take into account a relevant consideration, took into account an irrelevant consideration, or that the decision was unreasonable.

The court considered the evidence and reasoning provided by the Commissioner in rejecting the Anti-Discrimination complaint. The court found that the Commissioner had correctly applied the relevant statutory provisions and had not erred in law. The court also found that the Commissioner had not taken into account any irrelevant considerations and had taken into account all relevant considerations. The court concluded that the decision of the Commissioner was not unreasonable and that the decision was not made beyond power. Therefore, the court dismissed the complaint and declined to make any orders.

This case highlights the importance of the proper application of statutory provisions in administrative decision-making. It also demonstrates the limited role of the court in reviewing administrative decisions, particularly where the decision-maker has correctly applied the relevant statutory provisions and has not erred in law.

Orders

Orders of the court

Given my findings set out in these reasons, I will hear further from the parties in respect of the appropriate form of orders, including costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In considering a decision made under s 139(b) of the AD Act, Burns J further considered the intersect between s 136 and s 139 of the AD Act and stated as follows:“[40] As s 136(b) ADA provides, a complaint must set out ‘reasonably sufficient details to indicate an alleged contravention’. There is no requirement at the lodgement stage to support a complaint with evidence, although that no doubt commonly occurs to varying degrees. When the complaint is supplemented with supporting material, that material will of course also form part of the details to be considered by the commissioner. Furthermore, on receipt of a complaint, the commissioner may request further information or documents and such a request may extend to a request of the complainant for supporting evidence in order to assist in the formation of the opinion required under s 139(b), although there will be limited time to do so because the commissioner must decide whether to accept or reject a complaint within 28 days of its receipt. But, however the complaint is constituted and whatever the commissioner does after it is received, it is plain that the obligation on the part of the complainant at this early stage does not extend beyond the provision of reasonably sufficient details to indicate a contravention.[41]It is also to be observed that, although the statutory test is expressed in the same way, s 139 operates differently to s 168. In the first place, s 168 will only be engaged after the complaint has been accepted, a written response has been invited from the respondent and any attempt at conciliation has taken place. In addition, the commissioner may by that stage have investigated the complaint. Because such a complaint will already have been accepted under s 141 following consideration by the commissioner whether it was, relevantly, misconceived or lacking in substance, s 168 will only be engaged where something has emerged, either from the respondent or from the investigation, to change the commissioner’s opinion. But, even more importantly, if under s 168(1) the commissioner forms the reasonable opinion that the complaint is, relevantly, misconceived or lacking in substance, the complainant must show cause to the commissioner’s satisfaction why that is not so to avoid the complaint lapsing under s 168(4) whereas, under s 139, there is no onus on the complainant to prove anything. [42]The nature of the commissioner’s task under s 139(b) is informed by these statutory features as well as the protective purpose of the legislation.[32] A complaint cannot be expected to ‘allege the relevant facts with the particularity of an indictment or of a pleading’.[33] Nor should it be assumed that the details supplied are comprehensive or that they aspire to do any more than indicate what is intended to later be proved to establish the complaint. Thus, when forming an opinion under that provision, the question for the commissioner is whether the details provided in and with the complaint, if proved at a hearing of the tribunal, are indicative of a contravention that is neither misconceived nor lacking in substance. A complaint will be ‘misconceived’ if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and ‘lacking in substance’ where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA. Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.[43]Often, a conclusion of discrimination will only arise as a matter of inference.[34] So, in the absence of direct proof, the commissioner will need to consider whether the details provided in and with the complaint are indicative of circumstances that, if ultimately proved, are capable of supporting such an inference. However, where more than one inference is reasonably open on the indicated circumstances, it is not for the commissioner when forming an opinion under s 139 ADA to decide which inference is more probable; that is a matter within the exclusive province of the tribunal.” (emphasis added)[35][32]Section 6(1) ADA. And see Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77, [36].[33]Langley v Niland [1981] 2 NSWLR 104, 108. And see: State Electricity Commission v Rabel & Ors [1998] 1 VR 102, 116-117; Black & White (Quick Service) Taxis Ltd v Sailor & Anor (Ibid), [32].[34]See Sharma v Legal Aid (Qld) [2002] FCAFC 196, [40].[35]Underlining identifies the quote included in the Commissioner’s reasoning under heading 2 in respect of the AD Complaint Decision.

Decision

Reasons for decision

Initially, a delegate of the Commissioner refused to accept both complaints. Subsequently, on 17 December 2021, following an internal review, the Commissioner considered the complaints afresh and decided to accept the HR Complaint (HR Complaint Decision) but did not accept the AD Complaint (AD Complaint Decision). The Complainant seeks review pursuant to pursuant to s 20 of the Judicial Review Act 1991 (Qld) (JR Act) of the AD Complaint Decision on five grounds:[5][5]At the hearing on 19 September 2022, the applicant was granted leave to file an amended application for a statutory order of review containing two additional grounds.(a)Ground 1: The Commissioner took an irrelevant consideration into account. (b)Ground 2: The Commissioner failed to take a relevant consideration into account.(c)Ground 3: The Commissioner exercised his power so unreasonably that no reasonable person could so exercise the power.(d)Ground 4: The decision was unlawful for the purpose of s 58 of the HR Act because the decision:(i)was made in a way that was not compatible with human rights within the meanings of s 8 and s 58(1)(a) of the HR Act (the substantive limb obligation); and/or(ii)was made in a way that failed to give proper consideration to human rights relevant to the decision within the meaning of s 58(1)(b) of the HR Act (the procedural limb obligation).[6](e)Ground 5: The decision involved an error of law, in that it applied an incorrect interpretation of s 136, s 10 and s 11 of the AD Act.[6]At the hearing, the applicant clarified ground 4 in respect of s 58 of the HR Act. The Commissioner did not take an active part in the proceedings.[7] Ms Wheatley KC and Mr Brennan of Counsel were appointed to act as contradictor by the President of the Queensland Bar Association (Contradictor).[8] [7]R v Australian Broadcasting Tribunal and Others; Ex Parte Hardiman and Others (1980) 144 CLR 13 at 35-36.[8]Pursuant to an order of Boddice J on 25 March 2022.What is the AD Complaint Decision? The AD Complaint Decision and the reasons for the decision are set out in the Commissioner’s letter dated 17 December 2021. Relevantly, the first page of the letter states as follows:“On 26 November 2021 the complainant’s representative sought a review of the original decision. In light of the above history, I have decided to review both the decisions. I have considered all the documents referred to above and decided to deal with the complaint under the HR Act, but not to accept the complaint under the AD Act. I do not intend to convene a conciliation conference.” (emphasis added) The balance of the letter then proceeds under three headings:(a)Heading 1: Review of the original decision – [HR] Act 2019;(b)Heading 2: Review of the original decision under the [AD] Act 1991; and(c)Heading 3: Further complaint against the delegate. In respect of the AD Complaint Decision, logically the reasoning appears under heading 2 and potentially under heading 3.[9] The reasoning under heading 1 deals with the HR Complaint Decision.[9]It is not clear whether the reasoning under heading 3 is to be applied in respect of both the HR complaint and the AD complaint. This may be relevant to considerations in respect of ground 4, and partly for grounds 2 and 3.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.