SINGH and COMMISSIONER FOR EQUAL OPPORTUNITY
[2025] WASAT 21
•5 MARCH 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SINGH and COMMISSIONER FOR EQUAL OPPORTUNITY [2025] WASAT 21
MEMBER: DR M EVANS-BONNER, SENIOR MEMBER
HEARD: 28 FEBRUARY 2025
DELIVERED : 28 FEBRUARY 2025
PUBLISHED : 5 MARCH 2025
FILE NO/S: EOA 26 of 2024
BETWEEN: HARPREET SINGH
Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent
Catchwords:
Jurisdiction of the Tribunal - no referral by the Commissioner under s 90(2) of the Equal Opportunity Act 1984 (WA) (EO Act) - whether the Tribunal can proceed with an inquiry in the absence of a referral by the Commissioner - whether the Tribunal can review decisions made by the Equal Opportunity Commissioner made in the performance of his functions under the EO Act - Tribunal does not have jurisdiction - proceeding misconceived - proceeding dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA)
Legislation:
Equal Opportunity Act 1984 (WA), s 3, s 29, s 83(4), s 83A, s 83A(4), s 83A(5), s 89, s 90, s 90(1), s 90(2), s 91, s 93, s 93(1), s 93(1)(3a), s 107, s 107(3)
State Administrative Tribunal Act 2004 (WA), s 3, s 3(1), s 9, s 13, s 13(1), s 14, s 15, s 15(1), s 16, s 17, s 17(1), s 18, s 29, s 31, s 32, s 32(1), s 47(1)(a), s 92, s 92(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Proceeding dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that it is misconceived because the Tribunal does not have jurisdiction.
Category: B
Representation:
Counsel:
| Applicant | : | Ms R Dalip Singh |
| Respondent | : | Mr A MacDonald |
Solicitors:
| Applicant | : | Rekhraj Legal |
| Respondent | : | Equal Opportunity Commission |
Case(s) referred to in decision(s):
James and Sayers (The Trustee for Sayers Family Trust) [2006] WASAT 332
JJ and Director General, Department of Communities [2022] WASAT 106
Soelberg and Commissioner of Police [2007] WASAT 214
Zinni v Coventry Group Ltd (Unreported, EOT of WA, 21 March 2002)
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard and an oral decision was delivered on 28 February 2025. The following reasons comprise the reasons that were delivered orally, subject to only minor editing to improve clarity of expression and setting out).
Overview
Mr Singh is asking this Tribunal to proceed to hear a complaint of race discrimination in education. However, there is no referral from the Commissioner under s 90(2) of the EqualOpportunity Act 1984 (WA) (the EO Act) which is the most common way in which equal opportunity complaints come to this Tribunal.
Alternately, Mr Singh has asked this Tribunal to review a decision (or decisions) of the Commissioner made as part of the performance of the Commissioner's functions under the EO Act.
After making a complaint to the Commissioner, which was dismissed under s 89 of the EO Act, Mr Singh asked for the complaint to be referred to the Tribunal under s 90(2) of the EO Act. However, before it was referred to the Tribunal, Mr Singh withdrew his complaint, having been diagnosed with a serious illness whereby he was facing a long and intensive course of treatment.
Later, as his treatment progressed and his condition improved, Mr Singh asked the Commissioner to re-open his complaint, and to refer it to the Tribunal, but the Commissioner refused, saying that the complaint had been finalised and that the file had been closed.
Mr Singh disagrees with the way in which the Commissioner dealt with his complaint and believes that the Commissioner should have permitted him to re-open his complaint and/or refer the complaint to the Tribunal.
Mr Singh has told me that not being able to pursue the complaint has caused him great anxiety and that his mental health has been affected.
Issues
The issues that I must determine today are:
•whether the Tribunal has jurisdiction to proceed to determine Mr Singh's application without a referral from the Commissioner under s 90(2) of the EO Act; and
•whether the Tribunal has jurisdiction to review decisions made by the Commissioner during the investigation and conciliation process (as part of the Tribunal's review jurisdiction, or otherwise) including a decision to dismiss a complaint under s 89 of the EO Act, or a decision not to refer a complaint to the Tribunal.
Background
I will now provide some further details about the background to Mr Singh's complaint and how he came to file an application in this Tribunal.
The complaint that Mr Singh originally made to the Commissioner arose from incidents which allegedly occurred as part of a heated exchange which Mr Singh alleged occurred on 18 May 2021 when he was a student at the University of Western Australia (University). The exchange occurred between Mr Singh and four other students in a student group meeting for a science unit which Mr Singh was studying at that time. Mr Singh was allegedly assaulted by one of the other students during this incident.
After the incident, Mr Singh made a complaint through the University's student complaints resolution process. The complaint was investigated and was found (in a complaint investigation report dated 11 July 2022) to be substantiated in part. However, ultimately, the investigator found that there was no merit in progressing any allegation of misconduct further.
On 5 February 2023, Mr Singh lodged a complaint of race discrimination, sex discrimination, and racial harassment under the EO Act with the Commissioner.
Mr Singh's complaints were investigated by a conciliation officer at the Equal Opportunity Commission, who was a delegate of the Commissioner.
In a letter dated 23 May 2023, the Commissioner advised Mr Singh that after considering the complaint, he had decided to dismiss it pursuant to s 89 of the EO Act on the basis that it was lacking in substance because the evidence before the Commissioner did not substantiate the complaint.
In that letter the Commissioner also advised Mr Singh that he could require the Commissioner to refer the complaint to the Tribunal pursuant to s 90 of the EO Act.
On the same day, Mr Singh asked the conciliation officer to refer the complaint to the Tribunal.
On 25 May 2023, Mr Singh had a meeting via Microsoft Teams with the conciliation officer.
On 28 May 2023, Mr Singh emailed the conciliation officer. He stated:
I am writing this letter to request you and respected Commissioner to discontinue my application of referral to the tribunal … I have come to this decision after careful discussion with my family, and also my health has been deteriorating rapidly because of the stress involved … I will be very thankful if you could please continue with my request …
At that time, Mr Singh's complaint had not yet been referred to the Tribunal because the Commissioner was preparing a report for the Tribunal to accompany the referral, as required under s 90(2) of the EO Act.
The next day, being 29 May 2023, the conciliation officer emailed Mr Singh to acknowledge his email.
She emailed Mr Singh again on 29 May 2023 because the Commissioner had asked her to confirm that Mr Singh did not wish the Commissioner to finalise his complaint, and that Mr Singh did not want the complaint to be referred to the Tribunal. The confirmation was requested due to a concern that the wording in Mr Singh's email to 'please continue with my request' was ambiguous.
I do not have anything before me by way of a response from Mr Singh. In any event, the Commissioner wrote to him that day to advise that, following Mr Singh's request of 28 May 2023 indicating that he wished to discontinue his application for referral to the Tribunal, that the file had been closed.
Acting on Mr Singh's request, the Commissioner closed the file, and did not proceed with the referral to the Tribunal.
Some months later, on 12 October 2023, Mr Singh sent an email to the Equal Opportunity Commission's general email address to ask the Commissioner to refer the complaint to the Tribunal. Mr Singh stated:
I am writing this letter in regards with case number EOC 128/2023, that was dismissed on 23 May 2023. I was very unwell at the time and, therefore, a decision was made to not refer the case to the tribunal. But since than [sic], I have suffered a lot of mental trauma that is affecting my everyday life, and I would like to continue the case with the State Administrative Tribunal. I apologise for the inconvenience, but I need this case to be referred forward for my mental wellbeing …
In a letter dated 16 October 2023, the Commissioner advised Mr Singh that the 21-day period for referral had lapsed, and that the Commissioner did not have the power under the EO Act to extend the time for referral.
On 17 January 2024, Mr Singh emailed the Commissioner to request that his complaint be considered 'afresh'. He attached an affidavit in support of his request that the Commissioner re-open his complaint or refer it to the Tribunal.
In a letter dated 18 January 2024, the Commissioner acknowledged receipt of Mr Singh's email of 17 January 2024. The Commissioner stated that, '[t]his is not possible as a request to pursue a complaint afresh, pursuant to section 83A(4) and (5), only applies to withdrawn or lapsed matters'.
On 21 June 2024, Mr Singh lodged a handwritten application in this Tribunal. What he sought from the Tribunal was slightly unclear. As I understood his application, he asked the Tribunal to grant leave to extend the time for his complaint to proceed. In an affidavit dated 7 May 2024 filed with his application, he asked the Tribunal to review the Commissioner's decision to refuse to pursue his complaint afresh, or for the Tribunal to proceed to hear and determine his discrimination complaint as if it had been referred by the Commissioner.
The Proceeding
Mr Singh, represented by Ms Dalip Singh, filed submissions on jurisdiction on 7 November 2024. The Commissioner, represented by Mr McDonald, filed submissions on jurisdiction on 26 November 2024. On 6 December 2024, the parties filed a statement of agreed facts for the purpose of the interlocutory hearing on jurisdiction.
Today I heard further oral submissions from the parties at an interlocutory hearing on jurisdiction.
The Submissions
The submissions made on behalf of Mr Singh were extensive. I have endeavoured to briefly summarise the submissions of both parties, starting with the submissions made on behalf of Mr Singh by Ms Dalip Singh.
Mr Singh's Submissions
Ms Dalip Singh submitted that whilst s 90 of the EO Act generally requires a referral from the Commissioner for the Tribunal to have jurisdiction, there are 'specific exceptions' where the Tribunal may have jurisdiction without a referral under s 90.
She said that Mr Singh's serious health condition was an 'extenuating circumstance' whereby the Tribunal should re-open his complaint. She was unable to refer me to anything specific in the State Administrative Tribunal Act 2004 (WA) (SAT Act) or the EO Act which said that the Tribunal could take extenuating circumstances into consideration when determining jurisdiction, or indeed at all.
Ms Dalip Singh also submitted that the Tribunal had jurisdiction to review a decision made by the Commissioner, for example a decision not to extend time under s 83A of the EO Act, as part of the Tribunal's review jurisdiction. Mr Singh himself submitted that the Tribunal could review a decision of the Commissioner made under s 93(1) of the EO Act (which is one of the provisions under which the Commissioner can refer a complaint to the Tribunal). They were unable to identify any reference in those sections to a right of review to the Tribunal, but submitted that decisions made under those sections would fall within the Tribunal's review jurisdiction.
Ms Dalip Singh referred to the following provisions of the SAT Act which she said gave the Tribunal jurisdiction to hear appeals from decisions made by the Commissioner:
•s 29 of the SAT Act, 'Tribunal's powers in review jurisdiction', as giving the Tribunal authority to review a decision made by the Commissioner. Ms Dalip Singh also referred to s 16, s 17 and s 18 of the SAT Act which concern the original and review jurisdictions of the Tribunal.
•s 32 of the SAT Act, which Ms Dalip Singh submitted, provided that the Tribunal can make any order or declaration it considers appropriate in the interests of justice.
•s 9 of the SAT Act, titled 'Main objectives of the Tribunal', which Ms Dalip Singh submitted 'emphasises accessible, fair, and effective justice'. She stated that this provision allowed for the Tribunal to consider cases on their merits and that Mr Singh's case had merit.
She further submitted that there would be no prejudice to the University if the complaint was re-opened because both parties would have the opportunity to properly address the complaint on its merits. It was submitted that the potential injustice to Mr Singh who has experienced 'severe mental trauma' was 'a more significant concern' than any inconvenience to the University if the complaint was re-opened.
Ms Dalip Singh's submissions, as I understood them, also included submissions to the effect that the Tribunal could supervise the Commissioner in the performance of his functions under the EO Act by reviewing certain decisions made by the Commissioner. The following legislative provisions were referred to by Ms Dalip Singh in support of those submissions:
•s 92 of the SAT Act which she said enables the Tribunal to extend time limits in connection with a proceeding, or the commencement of a proceeding under the SAT Act or an enabling Act. It was submitted that the Tribunal could extend the time limits for the Commissioner to refer the complaint to the Tribunal, or for the Commissioner to re-open a complaint that had been dismissed. Ms Dalip Singh further submitted that the Tribunal has 'a discretionary power to extend or abridge time limits where special circumstances are demonstrated'.
•s 31 of the SAT Act, titled 'Tribunal may invite decision-maker to reconsider decision'. Ms Dalip Singh submitted that the Tribunal could invite the Commissioner to reconsider the dismissal of Mr Singh's complaint pursuant to s 31.
•Ms Dalip Singh also referred to s 91 and s 93 of the EO Act as requiring the Commissioner to endeavour to resolve a complaint by conciliation where appropriate (s 91), and to refer certain matters to the Tribunal (s 93). She referred to a 'failure to offer conciliation and the subsequent dismissal without proper consideration [which] deprived the applicant of a fair opportunity for resolution'. Later in the submissions Ms Dalip Singh stated that when the Commissioner dismissed the complaint under s 89, he did so without sufficient investigation, that the matter was 'incomplete', and that procedural fairness demanded that the case be re-opened for a thorough review. I understood this submission to be that the Tribunal has a supervisory role to ensure the Commissioner is discharging his functions as part of the Tribunal's equal opportunity jurisdiction by being able to review decisions of the Commissioner.
•s 3 of the EO Act which sets out its objectives. It was submitted that this provision should guide the interpretation and application of provisions of the EO Act and that rigidly adhering to the timelines in the EO Act may undermine the Act's purpose if it prevents legitimate grievances from being heard.
Ms Dalip Singh asked the Tribunal to:
•exercise discretion to reopen the case;
•grant leave for the matter to proceed under s 83A of the EO Act;
•extend the time for the Commissioner to refer the complaint to the Tribunal; and
•for the Tribunal to proceed to hear the case on its merits.
The Commissioner's Submissions
The Commissioner submitted that for the Tribunal to have jurisdiction to hear Mr Singh's complaint, the Commissioner would need to have referred the matter to the Tribunal under s 90(2) of the EO Act.
The Commissioner submitted that:
•the EO Act is an 'enabling Act', as defined by s 3 of the SAT Act;
•in accordance with s 13(1) of the SAT Act, it is the enabling Act that gives the Tribunal jurisdiction to decide a matter;
•s 107(3) of the EO Act confers jurisdiction on the Tribunal to determine a complaint or matter referred to the Tribunal under s 90(2) or s 93(1) of the EO Act. The Commissioner cited Zinni v Coventry Group Ltd (Unreported, EOT of WA, 21 March 2002) (Zinni) in support of the submission that s 90 of the EO Act is the only avenue for a complaint that has been dismissed to be referred to the Tribunal.
•the Tribunal is only given original jurisdiction by the EO Act with respect to complaints referred under s 90(2) and s 93(1) of the EO Act, and not a review jurisdiction. The Commissioner cited JJ and Director General, Department of Communities [2022] WASAT 106 as authority for the proposition that the Tribunal's power to deal with a complaint or matter under s 107(3) of the EO Act is in exercise of the Tribunal's original jurisdiction. There is no review jurisdiction whereby decisions of the Commissioner can be reviewed.
The Commissioner submitted that the EO Act does not give the Tribunal a review jurisdiction to review:
•a decision of the Commissioner to dismiss a complaint under s 89 of the EO Act;
•an 'incomplete' complaint, for example, if an applicant is of the view (as has been suggested by Mr Singh) that there has been an incomplete investigation or conciliation by the Commissioner before the Commissioner dismissed a complaint; or
•a decision of the Commissioner to refuse to refer a complaint to the Tribunal.
In short, the Commissioner submitted that the source of the Tribunal's jurisdiction was the original jurisdiction provided for in s 107 of the EO Act, which meant that in this case, a referral under s 90(2) of the EO Act was required for the Tribunal to have jurisdiction. There was no such referral because Mr Singh withdrew his application before it could be referred.
Dealing with the submissions
As I have just outlined, these submissions are extensive and traverse numerous sections of the SAT Act and the EO Act. They also encompass broader principles including procedural fairness, and the objects and objectives of the EO Act and the SAT Act.
I have addressed the issues for determination that I identified earlier, with reference to the sections of the SAT Act and EO Act mentioned by the parties, under the following headings:
•Where does the Tribunal's jurisdiction come from?
•The Tribunal's original and review jurisdictions.
•The Tribunal's equal opportunity jurisdiction with respect to equal opportunity complaints.
•Does the Tribunal have jurisdiction to review decisions of the Commissioner made in the performance of his functions under the EO Act?
•Do any other provisions in the SAT Act or the EO Act give the Tribunal jurisdiction?
Where does the Tribunal's jurisdiction come from?
The Tribunal is a statutory body. As such, the Tribunal's jurisdiction has been determined and defined by the Western Australian Parliament in the SAT Act and in enabling Acts (such as the EO Act) which provides a right of referral or review by the Tribunal.
The Tribunal has the power to determine whether an application or referral is within its jurisdiction (see generally Zinni, James and Sayers (The Trustee for Sayers Family Trust) [2006] WASAT 332 (James); Soelberg and Commissioner of Police [2007] WASAT 214).
However, jurisdiction is not a flexible concept, and there is no discretion to be exercised in determining jurisdiction. The Tribunal either has jurisdiction, or it does not. As such, jurisdiction is grounded in the enabling legislation. Jurisdiction cannot, for example, be agreed between the parties or granted based on general principles of merit, fairness or extenuating circumstances in the absence of the enabling Act conferring jurisdiction.
Put differently, the Tribunal is different to a court. It does not have inherent jurisdiction to determine certain types of applications. The scope of the Tribunal's jurisdiction is established by the SAT Act and is given to the Tribunal by numerous enabling Acts that provide a right of referral or review by the Tribunal.
More specifically, s 13 of the SAT Act is titled, 'sources of jurisdiction'. It provides, in part:
(1)A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
(2)In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter.
An 'enabling Act' is defined in s 3(1) of the SAT Act as:
enabling Act means another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act.
The enabling Act in this case is the EO Act. The EO Act gives the Tribunal jurisdiction with respect to certain equal opportunity matters which I will outline in a moment.
The Tribunal's original and review jurisdictions
As has been mentioned, the Tribunal has both an original, and a review jurisdiction.
Section 14 of the SAT Act provides for the 'Kinds of jurisdiction' that the Tribunal has. It states:
A matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction.
Section 15 of the SAT Act is titled, 'What comes within original jurisdiction'. Section 15(1) of the SAT Act relevantly provides:
If the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction.
Further, s 16 of the SAT Act titled, 'Exercising original jurisdiction' provides:
(1)In exercising its original jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.
(2)The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's original jurisdiction.
Section 17 of the SAT Act concerns 'What comes within review jurisdiction'. Section 17(1) provides:
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
Whether equal opportunity matters come within the Tribunal's original or review jurisdictions can be ascertained from looking at the wording of the provisions of the EO Act which is the enabling Act that gives the Tribunal jurisdiction.
The Tribunal's equal opportunity jurisdiction with respect to equal opportunity complaints
The EO Act gives the Tribunal jurisdiction to inquire into certain types of equal opportunity matters.
Section 107 of the EO Act is titled 'Jurisdiction of Tribunal'. It is the source of the Tribunal's jurisdiction with respect to complaints and referrals. In my view, s 107 is critical and is essentially a gateway to the Tribunal's jurisdiction. The relevant section is s 107(3) which provides that:
(3)Subject to subsection (3a), the Tribunal shall hold an inquiry into each complaint or matter referred to it under section 90(2), 93(1) or subsection (1).
Subsection (3a) is not relevant for present purposes because it concerns where a complainant notifies the Tribunal that they do not wish the Tribunal's inquiry to continue. That occurs after a complaint has been referred to the Tribunal, and Mr Singh's complaint was never referred.
Neither is subsection (1) relevant because it concerns referrals by the Minister.
That leaves s 90(2) and 93(1) of the EO Act.
Section 93(1) provides that the Commissioner can refer a complaint to the Tribunal if it cannot be resolved by conciliation, if the Commissioner has endeavoured to resolve the complaint by conciliation but has not been successful and is of the opinion that it should be referred to the Tribunal. This section concerns complaints that the Commissioner has not dismissed because (I venture to offer) the Commissioner is of the view that there is some basis or merit to the complaint.
Section 90 of the EO Act, titled, 'Commissioner to refer complaint to Tribunal if complainant so requires' provides:
(1)Where the Commissioner has given a complainant a notice under section 89, the complainant may, within 21 days after the receipt of that notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the Tribunal.
(2)On receipt of a notice under subsection (1), the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint.
Thus, the EO Act is an 'enabling Act' because s 107(3) of the EO Act gives the Tribunal jurisdiction to hold an inquiry into a complaint referred to it by the Commissioner under s 90(2) or 93(1) of the EO Act.
The Tribunal is not reviewing a decision of the Commissioner, rather the Commissioner is referring the complaint to the Tribunal to consider afresh. The inquiry that the Tribunal is empowered to conduct under s 107 of the EO Act is therefore part of the Tribunal's original jurisdiction. I emphasise that Tribunal is not reviewing a decision of the Commissioner. Rather, the Tribunal will undertake its own inquiry, subject to the proviso that the Tribunal's inquiry is limited to the matters that were part of the complaint before the Commissioner (see JJ at [22] - [23]). For example, if a complaint of race discrimination in employment was referred by the Commissioner, the applicant could not add sex discrimination to the complaint after it has been referred to the Tribunal.
At the interlocutory hearing today, Mr Singh himself suggested that the Commissioner should have referred his complaint to the Tribunal under s 93(1) of the EO Act and that a reviewable decision was therefore made under that section because the Commissioner refused to do so. Similarly, Ms Dalip Singh submitted that a reviewable decision was made by the Commissioner under s 83A of the EO Act not to extend the timeframe in which Mr Singh could ask for his case to be re-opened, or not to re-open his case. However, those provisions do not state that decisions made under them are reviewable decisions that can be reviewed by the Tribunal. Nor is there any reference to those decisions being reviewable decisions elsewhere in the EO Act. As I have explained, the enabling Act needs to give the Tribunal jurisdiction to review a reviewable decision (see s 13 and s 17 of the SAT Act). There is nothing in the EO Act that does this.
I respectfully agree with the following observations of the Equal Opportunity Tribunal in Zinni at [16]:
Section 90 of the Act creates the only avenue for a complaint dismissed under s89 to be referred to the Tribunal.
At [17] of Zinni the Equal Opportunity Tribunal continued:
… the proper construction of s 107 is that a complaint dismissed pursuant to s 89 must be referred to the Tribunal in accordance with the terms of s 90(2) before the Tribunal has jurisdiction to hold an inquiry.
I am therefore satisfied, and I find, that the Tribunal did not have jurisdiction under s 107 of the EO Act to proceed to hear Mr Singh's complaint in the absence of a s 90(2) referral from the Commissioner. Both s 90(2) and s 93(1) require a referral from the Commissioner to the Tribunal before the Tribunal has jurisdiction.
In Mr Singh's case, the Commissioner did not refer his complaint to the Tribunal because Mr Singh withdrew his complaint before it could be referred. When Mr Singh requested again that the Commissioner do so, the Commissioner refused to refer the complaint because the Commissioner's view was that s 83A and s 90(1) of the EO Act did not permit the complaint to be reopened and referred because it had been dismissed and was out of time. However, for the reasons I have just outlined, decisions made under those sections are not reviewable decisions.
Does the Tribunal have jurisdiction to review decisions of the Commissioner made in the performance of his functions under the EO Act?
I will elaborate further as to whether the Tribunal has the jurisdiction to review decisions made by the Commissioner that arise from the Commissioner exercising his functions under the EO Act following a complaint.
Ms Dalip Singh has submitted that the Commissioner did not fairly investigate the complaint or offer conciliation under s 91 of the EO Act. She says that the complaint should therefore not have been dismissed under s 89 of the EO Act. She submitted that the alleged failure to investigate or conciliate meant that the Commissioner should have referred the complaint to the Tribunal under s 93(1) of the EO Act. However, I have explained earlier, s 93(1) does not apply because the complaint was dismissed. Rather, s 90(2) of the EO Act applies if a complaint is dismissed by the Commissioner. In either case, there needs to have been a referral by the Commissioner to the Tribunal (pursuant to s 90(2) or s 93(1) of the EO Act) for the Tribunal to have jurisdiction.
I return to the fundamental principle that the Tribunal's jurisdiction is given to it by a provision in an enabling Act, in this case by s 107 of the EO Act.
There is no other provision in the EO Act that confers jurisdiction on the Tribunal to review the Commissioner's decisions made while performing his functions. More specifically, with respect to decisions made by the Commissioner:
•a decision by the Commissioner to dismiss a complaint under s 89 is not one that can be reviewed by the Tribunal;
•neither is a decision of the Commissioner not to refer a complaint to the Tribunal, for example, because the complainant did not make a written request to the Commissioner to refer the complaint to the Tribunal within the 21-day statutory period prescribed by s 90(1) of the EO Act; and
•neither is a decision by the Commissioner under s 83A(4) of the EO Act that a complaint that was withdrawn cannot be pursued afresh.
As with decisions the Commissioner makes under s 93(1) and s 83(4) of the EO Act, none of these provisions provide that decisions made by the Commissioner pursuant to them are reviewable decisions whereby there is a right of review to the Tribunal.
With respect to the Commissioner's actions, the EO Act does not give the Tribunal jurisdiction to inquire into whether the Commissioner adequately investigated a complaint or with respect to alleged flaws or deficiencies in the conciliation process.
The Commissioner referred me to the Tribunal's reasons for decision in James at [46] where the Tribunal stated:
… this Tribunal does not have the power to review the Commissioner's decision to dismiss or refer a complaint; the appropriate mechanism for that is by way of judicial review to the Supreme Court.
I respectfully agree with this statement, and would add that the same reasoning applies to other decisions made by the Commissioner in the performance of his duties, such as a decision not to allow a complainant to pursue a complaint afresh under s 83A(4) of the EOA.
Consequently, I am satisfied, and I find, that the EO Act does not give the Tribunal jurisdiction to review the Commissioner's decisions. It follows that the Tribunal cannot direct the Commissioner to undertake any action in the performance of his functions such as directing him to extend time, to conciliate further or to refer a complaint to the Tribunal.
Do any other provisions in the SAT Act or the EO Act give the Tribunal jurisdiction?
I will now consider whether any other provisions of the SAT Act or the EO Act give the Tribunal jurisdiction to hear Mr Singh's complaint in the absence of a referral under s 90(2) of the EO Act, or whether there are any statutory provisions that would permit the Tribunal to review decisions of the Commissioner.
I will consider the sections of the SAT Act and the EO Act which Ms Dalip Singh cited in support of Mr Singh's jurisdiction application.
Section 29 was cited as giving the Tribunal authority to review decisions made under enabling legislation.
However, s 29 is not as broad as has been suggested, and therefore does not assist Mr Singh. It concerns the Tribunal's powers in review jurisdiction. For a matter to come within the Tribunal's review jurisdiction, the enabling Act needs to give the Tribunal jurisdiction to review a decision made under the enabling Act (see s 17(1) of the SAT Act). There is nothing in the EO Act that expressly gives the Tribunal the ability to review a decision of the Commissioner.
As I have explained, the Tribunal has original jurisdiction with respect to complaints referred by the Commissioner under s 90(2) of the EO Act, but for the Tribunal to have jurisdiction there needs to first be a referral from the Commissioner.
Ms Dalip Singh also referred to s 31 of the SAT Act which empowers the Tribunal, at any stage of a proceeding for the review of a reviewable decision, to invite the decision-maker to reconsider a decision. Section 31 is of no help to Mr Singh either because there is no reviewable decision by the Commissioner, and even if the matter was referred under s 90(2), it would come within the Tribunal's original jurisdiction where the option of inviting a reconsideration is not available because there is nothing to reconsider.
Ms Dalip Singh has also referred to s 32(1) of the SAT Act which provides that the Tribunal is bound by the rules of natural justice. She also said that this section 'allows the Tribunal to make orders or declarations it considers appropriate in light of the circumstances'. With respect, that is not what the section says. That section concerns the Tribunal's procedures within jurisdiction, for example, when the Tribunal is conducting a proceeding, it must ensure both parties have an adequate opportunity to be heard by an unbiased decision maker and to present their cases. It does not give a broad jurisdiction to the Tribunal inquire into general allegations of breaches of procedural fairness, including under the EO Act.
Section 92(1) of the SAT Act was also referred to by Ms Dalip Singh as being a discretionary power whereby the Tribunal can extend or abridge time limits where special circumstances are demonstrated. With respect, that is not what the section says. It says that the rules may provide for the Tribunal to extend or abridge a time limit in connection with a proceeding or the commencement of a proceeding under the SAT Act or an enabling Act. There is no reference to extenuating circumstances. Also, s 92(1) of the SAT Act is not a source of jurisdiction for the Tribunal. It merely allows the Tribunal to make rules about extending or abridging time limits in a proceeding where the Tribunal has jurisdiction. The rules that have been made are the State Administrative Tribunal Rules 2004 (WA). Rule 9 provides a 28-day time limit for review applications. Rule 10 allows the Tribunal to 'extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding'. I would again emphasise that the Tribunal would only be able to extend time with respect to matters that were within its jurisdiction. Again, s 92(1) and rules 9 and 10 are not general sources of jurisdiction when there is a dispute or question about a time limit. As I have explained, jurisdiction needs to be given by the enabling Act, which is the EO Act in this case.
Ms Dalip Singh also referenced s 9 of the SAT Act which sets out the 'Main objectives of the Tribunal' which she submitted provides for 'accessible, fair and effective justice'. I observe that s 9 commences with the words, 'The main objectives of the Tribunal in dealing with matters within its jurisdiction are …' (my emphasis). That is, s 9 states the objectives which the Tribunal must be mindful of when dealing with matters within jurisdiction. It is not a source of jurisdiction in and of itself.
The objects set out in s 3 of the EO Act were also referenced by Ms Dalip Singh. They are a statement of what the legislature intended the legislation to achieve, including to eliminate specified forms of discrimination and to promote recognition and acceptance, but the objects are not a source of general jurisdiction.
In summary, jurisdiction must be specifically conferred by an enabling Act and so these provisions of the EO Act and SAT Act cannot be regarded as giving any implied jurisdiction to the Tribunal.
I am therefore satisfied, and I find, that there are no other provisions of the SAT Act or the EO Act which would give the Tribunal jurisdiction to proceed to hear and determine Mr Singh's complaint, or to review the decisions of the Commissioner undertaken in the performance of the Commissioner's functions under the EO Act that Mr Singh disagrees with.
Conclusion
I am satisfied, and I find, that the Tribunal does not have jurisdiction to determine Mr Singh's application without a referral from the Commissioner under s 90(2) of the EO Act. Nor does the Tribunal have jurisdiction to review or supervise decisions made by the Commissioner in the performance of his statutory functions under the EO Act, including with respect to investigations, conciliations or referrals.
Consequently, I am satisfied, and I find, that the proceeding with respect to Mr Singh's application to the Tribunal filed on 21 June 2024 is misconceived within the meaning of s 47(1)(a) of the SAT Act, and that it should be dismissed.
I understand that this result will be very upsetting to Mr Singh who is anxious to proceed with his complaint. However, for the reasons I have explained, jurisdiction is not a flexible concept and is prescribed by the enabling Act. The Tribunal is constrained by the jurisdiction given to it under the SAT Act and under the EO Act.
Order
The Tribunal orders:
1.The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that it is misconceived because the Tribunal does not have jurisdiction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
5 MARCH 2025
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