United Firefighters' Union of Australia v Victorian Equal Opportunity and Human Rights Commission and Secretary to the Department of Justice and Regulation

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0001

UNITED FIREFIGHTERS’ UNION OF AUSTRALIA	Applicant
v
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	First Respondent
and
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Second Respondent

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JUDGES:	MAXWELL P, TATE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2018
DATE OF JUDGMENT:	4 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 252
JUDGMENT APPEALED FROM:	[2017] VSC 773 (Ginnane J)

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ADMINISTRATIVE LAW – Judicial review – Ultra vires – Discrimination law – Request to Human Rights Commission to conduct compliance review – Review directed at statutory authorities responsible for fire services – Review of authorities’ programs and practices – Whether review requested by person whose compliance was to be reviewed – Request made by executive branch of Government – Separate legal personality of statutory authorities – Review not authorised by request – Whether alternative source of power available – Appeal allowed (by majority) – Equal Opportunity Act 2010 ss 151, 152, 155, 157.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M R Pearce SC with Mr D Langmead	Davies Lawyers
For the First Respondent	Ms E A Bennett	Solicitor for the Victorian and Equal Opportunity Human Rights Commission
For the Second Respondent	Ms M Richards SC, Crown Counsel, with Mr J Kirkwood	Victorian Government Solicitor’s Office

MAXWELL P
PRIEST JA:

Summary[1]

[1]In these reasons:

The Commission is a statutory authority which was continued in existence by s 154(1) of the Equal Opportunity Act 2010 (the ‘Act’). The Commission’s general functions are defined by s 155(1) of the Act, as follows:

(a)to establish and undertake information and education programs;
(b)to promote and advance the objectives of this Act and to be an advocate for this Act;
(c)any other functions conferred on it by or under this Act or any other Act, including the Charter of Human Rights and Responsibilities.

Under s 155(2), the Commission has ‘all the powers necessary to enable it to perform its functions’.

This proceeding concerns the specific function conferred on the Commission by s 151 of the Act. That section is headed ‘Commission may conduct review of compliance’. Subsection 151(1) provides as follows:

On request of a person, the Commission may enter into an agreement with the person to review that person’s programs and practices to determine their compliance with this Act.

The proceeding also concerns the cognate function conferred on the Commission by s 41(c) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’), which provides as follows:

41 Functions of the Commission
The Commission has the following functions in relation to this Charter—
…
(c) when requested by a public authority, to review that authority’s programs and practices to determine their compatibility with human rights;

In December 2015, the Secretary wrote to the Commission at the request of the then Minister

regarding behavioural issues and increasing workforce diversity within the Country Fire Authority and the Metropolitan Fire and Emergency Services Board.

The letter stated as follows:
The government requests the [Commission] to undertake a review under

section 151 of the [Act] and section 41(c) of the [Charter]. This would include any relevant research in accordance with [the Commission’s] function under s 157 of the [Act].

The Secretary’s letter enclosed draft terms of reference for the requested review, which listed the matters which the Commission should ‘review, report and make recommendations on’. The first two of the listed matters were as follows:

(a)The nature and prevalence of discrimination, sexual harassment and victimisation amongst current [CFA] and [MFB] personnel (paid and voluntary) and those who left in or after 2010.
(b)The drivers and impact of any discrimination, sexual harassment and victimisation amongst these CFA and MFB personnel.

As will appear, the Commission entered into detailed arrangements with the Department, and with each of the CFA and the MFB, for the conduct of the review, which commenced formally in July 2016 (the ‘Review’). The Union immediately raised concerns about the Review in correspondence with the Commission. Subsequently, in June 2017, the Union made a submission to the Commission, contending that the Review was not authorised by s 151(1). The Union argued that a review was only authorised under s 151(1) if the programs and practices to be reviewed were those of the person requesting the review. In this case, the Union argued, the programs and practices to be reviewed were those of the CFA and MFB. They were separate legal persons from the person — the Government[2] — which had made the request for the Review.
[2]The term ‘Government’ as used in these reasons denotes the executive branch of the Victorian Government.

The Union made application to the Trial Division for injunctions to restrain the Commission from carrying out the Review, and a declaration that it was beyond the Commission’s power. That application was refused and the Union now seeks leave to appeal to this Court from that refusal.

For reasons which follow, we would grant leave to appeal and allow the appeal. In our opinion, there was no authority under s 151(1) for the Commission to carry out the Review. Put shortly, it is unambiguously clear from the terms of the Government’s request, and the proposed terms of reference, that the Commission was asked to review the employment practices of the two statutory authorities, the MFB and the CFA. It is equally clear that neither the MFB nor the CFA requested the Review.

The Review was initiated because the Government was concerned about discrimination, sexual harassment and victimisation in the workforces of the respective authorities. Under pt 3 of the Act, the MFB and the CFA as employers had a duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation. The scope of the Commission’s Review under s 151(1) was — and could only have been — to review compliance by those legal persons, as employers, with their obligations under the Act.

It follows that the person requesting the Review was not the same as the person whose programs and practices were to be reviewed for compliance with the Act. Accordingly, the Review fell outside the scope of the statutory authority conferred on the Commission by s 151(1).

In the alternative, the Secretary submitted that power to conduct the Review — or at least to publish a report on it — could be found in other provisions of the Act which confer functions on the Commission. There is, however, only one source of power to review a person’s programs and practices for compliance with the Act. That is s 151 and, as already stated, the power is only enlivened if that person requests a review.

Finally, we wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the desirability of the Commission conducting a compliance review of the MFB and CFA. Whether such a review should take place is a matter for those agencies. The courts play no part in evaluating the merits of such decisions.

The role of the courts in a case such as this is quite different. It is to ensure that government operates according to law and, relevantly, to ensure that powers conferred on statutory bodies such as the Commission are exercised within the legal limits imposed by Parliament. In this case, we have held that those legal limits were exceeded, and hence that the Review was beyond the Commission’s power.

Background

In July 2015, the then Minister for Emergency Services appointed Mr David O’Byrne to inquire into and report on the resourcing, operations, management and culture of the MFB and the CFA. In his report, Mr O’Byrne raised concerns about the presence of discrimination and sexual harassment within the ranks of those fire service agencies.

On 9 December 2015, the Secretary wrote to the Commission requesting it undertake the Review. On 14 June 2016, the Commissioner advised the Secretary of the Union that the Commission had been asked ‘to examine discrimination, including bullying, and sexual harassment in the MFB and the CFA’. On 26 July 2016, the Commission formally commenced the Review.

On 9 June 2017, the solicitors for the Union wrote to the Commissioner, raising three concerns about the Review: first, that it was not properly constituted; secondly, that the Commission was investigating matters beyond its powers; and, thirdly, that the Review’s methodology was seriously flawed. The Union requested that the Commission undertake not to publish the results of the Review until it had considered and responded to the Union’s concerns. No such undertaking was given.

Six days later, on 15 June 2017, the Union commenced proceedings in the Supreme Court, seeking declarations and orders restraining the Commission from continuing to conduct the Review and from publishing ‘any report of, arising from, or in connection with’ the Review. Three grounds were relied upon, namely, that the Review:

·was not properly constituted, under either s 151 of the Act or 41(c) of the Charter;
·was investigating matters which the Commission did not have power to investigate; and
·included an online survey which was ‘so fundamentally flawed that no authority acting reasonably could take account of it’.

Ginnane J dismissed the Union’s application, holding that none of the grounds had been made out. His Honour concluded that the Review was validly constituted. Further, in his Honour’s view, the Union had not established that the Commission:

(a) was investigating matters which were beyond its statutory powers;[3] or

(b) had placed, or would place, any reliance on an online survey (described below) that would be unreasonable in the legal sense.[4]

[3]United Firefighters’ Union v VEOHRC [2017] VSC 773 [97]–[98] (‘Reasons’).

[4]Ibid [190]–[192].

The power to conduct a review of compliance with the Act

Section 151 of the Act provides:

151 Commission may conduct review of compliance
(1) On request of a person, the Commission may enter into an agreement with the person to review that person’s programs and practices to determine their compliance with this Act.
(1A) An agreement to review may provide for payment of the Commission’s reasonable costs of undertaking the review.
(2) If, after undertaking a review, the Commission gives the person advice about whether programs or practices are compliant with this Act, the giving of that advice does not give rise to—
(a) any liability of, or other claim against, the Commission; or
(b) any right, expectation, duty or obligation that would not otherwise be conferred or imposed on the person who has been given the advice; or
(c) any defence that would not otherwise be available to that person.[5]

[5]Emphasis added.

As noted earlier, the principal question for decision is whether the Commission has power under s 151 of the Act and s 41(c) of the Charter to undertake the Review. (The alternative argument advanced by the Secretary, based on other provisions of the Act, will be considered separately.) On the appeal, as at first instance, the parties’ submissions were almost entirely directed at the provisions of the Act.

As can be seen, s 151(1) does not in terms empower the Commission to carry out a ‘review of compliance’. Instead, it authorises the Commission to enter into an agreement with a person

to review that person’s programs and practices to determine their compliance with this Act.

It was common ground, however, that the power to enter such an agreement necessarily carried with it the power to carry out the review.

Importantly, the Commission has no power under s 151 to conduct a compliance review of its own motion. Instead, as s 151(1) makes perfectly clear, the Commission can only (enter into an agreement to) review a person’s programs and practices if requested by that person to do so. It was common ground that the phrases ‘a person’, ‘the person’ and ‘that person’ in s 151(1) and (2) all referred to the same person.

In the present case, the request to the Commission was made by the Government, in the person of the Secretary writing on behalf of the Minister for Emergency Services. An agreement was subsequently entered into between the Commission and the Government, the latter being identified in the agreement as the ‘Department of Justice and Regulation’.

The issue in dispute is whether the ‘programs and practices’ the subject of the Review are, as the Secretary maintains, programs and practices of the Government, being the ‘person’ which requested the Review. As already noted, that was the trial judge’s conclusion.

The submission for the Union is that the subject-matter of the Review is the programs and practices of the CFA and the MFB, which are legal persons separate and distinct from the Government. (That they have such separate legal personality is not in dispute.) Since the Government was the person which had requested the Review, it was not authorised by s 151(1).

Before we turn to consider his Honour’s reasons and the competing submissions, it is necessary to set out the evidence in more detail.

Establishing the Review

In his report, Mr O’Byrne raised concerns regarding discrimination and sexual harassment within the fire services, in these terms:

The Review heard descriptions of a bullying culture in both CFA and MFB, at all levels of the organisation. The Review did not receive sufficient information to comment on the prevalence of such a culture but heard that many of those who experience bullying prefer to suffer in silence than make a claim.[6]
…
Women and men in the fire services reported that women must work twice as hard to achieve the same level of acceptance as men. The Review also heard instances of sexual harassment and threatening behaviour.[7]

[6]David O’Byrne, ‘Report of the Victorian Fire Services Review: Drawing a line, building stronger services’ (October 2015) 30 (‘O’Byrne Review’).

[7]Ibid 32.

One of Mr O’Byrne’s recommendations was that:

the fire services take the lead in advancing the sector’s collective effort to increase diversity in the sector, through making a genuine and public commitment to understanding and addressing harassment and discriminatory practices and behaviours in their organisations, and launching a process for doing so.[8]

[8]Ibid.

In December 2015, the Commission published a report of a separate review which it had conducted, into discrimination, sexual harassment and organisational culture in Victoria Police. The Commission reported that many women in the police force experienced sexual harassment and an entrenched discriminatory culture.[9]
[9]Victorian Equal Opportunity and Human Rights Commission, ‘Independent Review into sex discrimination and sexual harassment, including predatory behaviour in Victoria Police — Phase One Report’ (December 2015) 10–14 (‘Police Review’).

We set out earlier part of the December 2015 letter of request from the Secretary to the Commission. The rest of the letter should now be set out in full:

The Minister would like an action plan developed in consultation with the fire services and other relevant stakeholders similar to the work that [the Commission] has completed in relation to sex discrimination and sexual harassment within Victoria Police.
I understand that you and Ken Lay, the former Chief Commissioner of Police, are supporting the Emergency Management Commissioner, Craig Lapsley, on his work with key emergency management organisations aiming to identify where there might be problems achieving gender equality and diversity in the sector, and the role leadership could play in bringing about change. This work would inform [the Commission’s] formal consideration of these matters.
I have established a Secretariat within the department, to be led by Rossana De Martino (Assistant Director Ministerial Services) who will be assisting Craig Lapsley and the Minister for Emergency Services on the government’s response to the Report.
…
Please work with Rossana and Craig on settling the Terms of Reference.

A draft is attached.

Draft terms of reference were attached, as follows:

An Expert Panel, led by the Commissioner … will review, report and make recommendations on:
a.The nature and prevalence of discrimination,* sexual harassment and victimisation amongst current [CFA] and [MFB] personnel (paid and voluntary), and those who left in or after 2010.
b.The drivers and impact of any discrimination, sexual harassment and victimisation amongst these CFA and MFB personnel.
c.Strategies to promote and improve respect and safety, including addressing barriers to equity and diversity in the CFA and the MFB.
d.Initiatives required to drive cultural and practice change, including the adequacy and effectiveness of existing equity and diversity initiatives.
e. Any other matters the Panel considers appropriate that are incidental to the above terms of reference.

Subject to agreement, 18 months after the release of the Panel’s report and then again 12 months later a further independent Report may be prepared which:
- audits the implementation by the CFA and MFB of the recommendations in the Panel’s Report;
- makes any further recommendations as necessary.

* Note: Workplace bullying on the basis of one or more of the 18 protected attributes, protected under the [Act] amounts to discrimination under the [Act].

In March 2016, just over three months after its request to the Commission, the Government released its response to the O’Byrne Report. The response was entitled ‘Government Response to the Report of the Victorian Fire Services Review: Drawing a line, building stronger services’. In its response, the Government restated its admiration of the dedication and willingness of MFB and CFA members, but expressed concern at a number of the findings relating to workplace relations and culture in the fire services.

The response relevantly stated as follows:

The report found that culturally, Victoria’s fire services often fail to welcome diversity, foster innovation, support work-life balance, provide ongoing training, recognise skills or encourage collegiate, respectful workplace relationships. The report found repeated evidence of bullying, harassment and discrimination in Victoria’s fire services. The Government is deeply concerned by these findings and does not accept that those wishing to serve our community in this fundamental way should encounter or endure these conditions.
The Government’s first action on receipt of the report was to request the [Commission] to conduct a review under s 151 of the [Act] and s 41(c) of the [Charter]. [The Commission] has been asked to investigate and report specifically on workplace behaviour (specifically issues that may contribute to an environment of bullying and harassment), the lack of gender diversity in the fires services and existing support services for staff who have been bullied or harassed. Secondly, [the Commission] has been asked to recommend strategies and plans to remedy immediate problems and build a better working environment. The government anticipates that these findings will assist in identifying the most effective flexible employment arrangements to meet the fire services goal of a diverse and inclusive workforce. It is anticipated that [the Commission] will provide a comprehensive report to the Government in the first half of 2017.[10]

[10]Victorian State Government, ‘Government Response to the Report of the Victorian Fire Services Review: Drawing a line, building stronger services’ (March 2016) 5, (emphasis added).

In May 2016, the Secretary and the Acting Commissioner entered into an agreement (the ‘Funding Agreement’), which set out the respective roles and responsibilities of the Department and the Commission in the establishment and conduct of the Review. The Department agreed to provide funding of $1.375 million for the Review and to give the Commission a range of information, including ‘a confidential list of all current staff email contacts so that an independent survey can be sent’.

The Commission agreed to undertake ‘the project’, which was fully described in an annexure to the agreement headed ‘Equity and diversity review of the Victorian Fire Services’. The ‘Background’ section of the annexure referred to the O’Byrne Report and stated:

In March 2016, the Government responded to the [O’Byrne] review report, advising that the [Commission] will undertake an independent review to examine discrimination, including bullying based on a protected attribute, and sexual harassment in the MFB and the CFA.
The review will be conducted under s 151 of the [Act] and s 41(c) of the [Charter]. This will include any relevant research under s 157 of the [Act].

The annexure also contained a detailed summary of the provisions of the Act, which began as follows:

The [Act] also requires that employers take proactive steps to eliminate discrimination, sexual harassment and victimisation from occurring in the first place. The law reflects the growing recognition of the need to address the structural and systemic barriers to inequality.
The [Act] contains definitions of discrimination, sexual harassment and victimisation.

The annexure also included the following relevant sections:

Assumptions underpinning the project
-Discrimination and harassment occur at a societal, systemic and institutional level, organisation level, and interpersonal level.
-Discrimination and harassment form part of a continuum. Lower level behaviours may escalate and embed if the prevailing culture and environment allows this to occur.
-In order to succeed any response needs to address inequity and its symptoms across the CFA and MFB. Any response needs to empower people to report, enable bystanders to interrupt and address enabling culture more broadly.
-Although with a different remit, work undertaken by the Australian Human Rights Commission in the Australian Defence Force, and by the [Commission] in relation to Victoria Police, provide useful templates for methodology and for establishing the groundwork for policy, practice and cultural change required. Central to this is the establishment of an expert panel to guide the work, promoting buy-in and ownership by CFA and MFB personnel, and ensuring practicality of recommendations.

This work requires a phased approach, based on immediate action, building on the evidence base and long-term action and monitoring. It is anticipated that within 18 months, the data collection and reporting phase will be completed and an action plan developed, with organisational changes starting to be implemented.
…
The elements in scope are:
- Structural and attitudinal barriers to change.
- Current CFA and MFB personnel (both paid and volunteer) and former personnel who left in or after 2010. While volunteers may not be considered ‘employees’ for all purposes under the Act, with the exception of sexual harassment, [the Commission] will take a wide view on building evidence about the cultural and structural barriers to broader diversity, including in the provision of goods and services.
- Building the evidence base on prevalence of discrimination, sexual harassment and victimisation between personnel.
- Building the evidence base on barriers faced by CFA and MFB personnel to calling out and reporting discrimination and sexual harassment and victimisation.
- Building the evidence base on organisational barriers to taking action.
- Building the evidence base on referrals and provision of formal and informal support to CFA/MFB personnel who have experienced or witnessed discrimination, sexual harassment and victimisation.
- Identifying a comprehensive, sustainable and mutually reinforcing action plan to promote equality, safety and respect in the CFA/MFB.
The elements out of scope are:
- Prevalence of discrimination and harassment towards community members not considered employees or volunteers under the [Act].
- Prevalence of family violence where CFA/MFB personnel are alleged perpetrators or victims.[11]

[11]Emphasis in original.

Finally, under the heading ‘Governance’, the annexure stated as follows:

[The Commission] recommends a project governance group be established for the Review with membership from senior representatives from [the Commission], the CFA, MFB, [Emergency Management Victoria (‘EMV’)] and [Department of Justice and Regulation (‘DOJR’)]. … The purpose of the group will be to provide project governance and to review budget forecasting. It will not inform methodology or content of the Review.
The Commission will provide frank and fearless advice on the issues raised and actions that can be taken by the Victorian Government, the EMV and the CFA and MFB to promote respect and protect the safety of personnel.
As an independent review, decision-making for the methodology, content, media engagement and release of information rests with the Commission.
As well as DOJR, both the CFA and MFB, as well as the Fire Services Ministerial Taskforce (and any other agencies potentially affected by the Review’s recommendations), will be provided with an opportunity to review and respond to the Commission’s findings, public reports and audits in advance of publication.
The Commissioner … has final approval on the content of Reports.

The Funding Agreement set out the Commission’s methodology for the conduct of the Review. The Commission agreed to:

(i) conduct a confidential online survey/portal offered to 100 per cent of the current paid and unpaid personnel;
(ii) conduct focus groups of a selection of current personnel;
(iii) conduct optional confidential interviews for a selection of current and former staff and volunteers;
(iv) conduct data analysis (workforce data, incident data and comparative community attitudes);
(v) observe a selection of work places; and
(vi) conduct a legislation and policy review.

The Commission subsequently entered into a memorandum of understanding (‘MOU’) with the MFB and a separate — but practically identical — MOU with the CFA. The relevant parts of the MOU with the MFB were in these terms:

1.Background and purpose
1.1The Commission has been engaged by the Victorian Government to undertake an independent review into the [CFA] and the [MFB], under ss 151 and 158 of the [Act] and s 41(c) of the Charter … .
1.2The MFB has agreed to provide information and workforce data to facilitate the Review taking place. Some of this information is provided on a confidential basis.
1.3This [MOU] sets out the agreement between the parties about collection, storage, use and disclosure of all workforce data and information collected for the purposes of the Review.
…
3. Provision of information and access by MFB
3.1The MFB agrees to provide to the Commission the following:
(a)a list of all current staff email contacts in order for the Commission to send out a survey about workforce behaviours, attitudes and experiences;
(b) copies of all organisational policies, supporting guidelines and procedures, and other organisational documents (such as strategic plans and commitments) which are identified by the Commission as relevant to the Review;
(c)access to MFB corporate offices, fire stations, training facilities and any other work site (MFB Work Locations), in order for the Commission to conduct focus groups with MFB personnel and to observe workplaces and workforce interactions; and
(d) aggregate organisational data, including a list of organisational levels/ranks of employees/volunteers and order of hierarchy; representation, recruitment and retention data; workplace complaints data; and relevant materials.

There was an additional clause in the MOU with the CFA, as follows:

3.2The CFA will distribute to all staff and volunteers, by email, a direct link to the Commission’s Review survey on workforce, behaviours, attitudes and experiences.

As noted earlier, the Commissioner advised the Secretary of the Union on 14 June 2016 that the Commission would be conducting the Review. The letter said:

As you will be aware, in July 2015, the Minister for Emergency Services commissioned Mr David O’Byrne to review and make recommendations concerning the resourcing, operations, management and culture of [Victoria’s MFB] and the [CFA].
The review made 20 recommendations, including:
that the fire services take the lead in advancing the sector’s collective effort to increase diversity in the sector, through making a genuine and public commitment to understanding and addressing harassment and discriminatory practices and behaviours in their organisations, and launching a process for doing so (recommendation 7).

In March 2016, the Government responded to the review report, advising that the [Commission] will undertake an Independent Review (Independent Review) to examine discrimination, including bullying, and sexual harassment in the MFB and the CFA.
The Independent Review will be conducted under s 151 of the [Act] and

s 41(c) of the Charter … This will include any relevant research under s 157 of the [Act]. The Terms of Reference can be found in Attachment A. Please note that the Terms of Reference are not yet publicly available. These will be made public very shortly.
[The Commission] is an independent statutory agency, and is the body responsible for ensuring that Victorians are protected from discrimination, harassment and victimisation.
Both the CFA and the MFB perform a valuable community service and are crucial to ensuring the safety of the community. [The Commission] is committed to ensuring that the agencies, and the community they serve, are safe, inclusive and respectful.
The forthcoming Independent Review, which will be led by an Expert Panel, chaired by the Commissioner, Kristen Hilton, will provide frank and fearless independent advice. The Independent Review will be conducted from June 2016 and a report, containing an Action Plan, will be published in June 2017.
The Independent Review’s findings will be based on what it hears from employees and volunteers about their experiences in the CFA and MFB — both positive and negative. We will be seeking input from all employees and all volunteers, including former employees or volunteers who left the organisation in 2010 or later.
The Review will be hearing views from across Victoria, including regional and rural areas. There will be multiple ways to participate in the Review, including an online portal, written submissions, confidential interviews and public information sessions. In addition, the dedicated Review team will be making scheduled site visits with the purpose of gaining a comprehensive overview of the day-to-day practice, operation and make up of worksites in different areas, of different sizes and with different remits. Through these visits, we will be able to better understand the CFA and the MFB operating environment. This will assist us to effectively consider strategies and actions for change that will resonate with the CFA and MFB workforce.[12]
[12]Emphasis added.

The decision at first instance

The trial judge said that, in order to determine whether the Review was lawfully established, it was necessary for him to decide

whether the programs and practices that the Commission was requested to review were programs and practices of the Government of Victoria, which through the Secretary, made the request.[13]

His Honour concluded that they were.

[13]Reasons [90].

The essential part of his Honour’s reasoning was as follows:

The significant words in s 151(1) are found in the phrase ‘that person’s programs and practices to determine their compliance with this Act’. They refer to what the Commission is to review, but they also identify who may request the Review. They direct attention to the person whose programs and practices are to be reviewed. On one view, in this case they are the programs and practices of the MFB and the CFA because they are the statutory corporations which develop and deliver programs and practices associated with the prevention and suppression of fire. But, on deeper analysis I consider it significant that the programs and practices associated with the delivery of fire services to the community are an essential responsibility of government and its executive branch in protecting the community. So, when the Department’s Secretary informed the Commission that the Government requested a review of the programs and practices of the MFB and CFA, the review requested was of services provided by those statutory corporations for the executive branch of government and ultimately for the people of Victoria. The MFB and CFA do not operate in isolation or as independent silos. They perform functions of the executive branch of the State Government and are ultimately responsible to the Government for delivery of those services. As the High Court said in 1992, the activities of government are carried out not only through the departments of government but also through corporations which are agencies or instrumentalities of government.

His Honour here cited the High Court’s decision in Deputy Commissioner of Taxation v State Bank (NSW).[14] (The passage set out below was relied on by the Secretary as his ‘principal authority’ on this appeal.) The Court said:

Once it is accepted that the Constitution refers to the Commonwealth and the States as organisations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government. Such activities have, since the nineteenth century, included the supply on commercial terms of certain types of goods and services by government owned and controlled instrumentalities with independent corporate personalities.[15]

[14](1992) 174 CLR 219 (‘State Bank’).

[15]Ibid 230–1 (emphasis added).

His Honour’s reasons continued:

The executive branch of the Victorian Government provides fire services through statutory corporations including the MFB and CFA as well as through administrators employed in the Department. Those corporations have been created by the Parliament, the legislative branch of government. But they operate under the ultimate direction of the Minister and the executive branch of government. They implement programs and practices for the suppression and prevention of fire for the executive branch of Government. Those programs and practices are programs and practices of the executive branch of Government. The Secretary’s request to the Commission was for a review of the Government’s programs and practices, particularly as they impacted on behavioural issues and increasing workforce diversity.
The scheme that emerges from the legislation makes it clear that the programs and practices of the CFA and MFB, namely, the provision of fire and emergency services to the Victorian community, are synonymous with activities that fall within the province of action of the executive branch of government. Therefore, s 151(1) of the [Act] permitted the Commission to accept the request and conduct the Review.
The conclusion I have reached reflects the way in which the executive branch of government now deliver essential community services. But almost

fifty years ago, in dealing with an application by the [Union] for federal registration as a registered organization, Barwick CJ stated that while the services rendered by the firefighting authorities were not essentially ‘governmental’:
in fact however the operations performed by the firefighting authorities are part of the services rendered by or on behalf of the government to the community as a whole.[16]

Fire services would now be regarded, at least in substantial part, as one part of government services.
…

It is for the executive to decide through what structures the services will be delivered but, when delivered through statutory corporations, which are responsible to the government, they are services and programs and practices of government. The MFB and CFA implement programs and practices for, and of, the executive branch of Government, even though they have devised or adopted those programs and practices. Section 151 does not say that the programs and practices must be implemented by the person requesting the review or the ‘duty holder’ to use a term used in the hearing. It is sufficient in my opinion that they are performed by or on behalf of the government. It was open to the Department Secretary for the Minister would seek a review of the MFB and the CFA to see whether their programs and practices comply with the [Act] and the Charter. Workforce behavioural issues and issues of workforce diversity are not issues only related to the fire services, but are likely to affect all the services that the executive branch of government delivers to the community.[17]

[16]Pitfield v Franki (1970) 123 CLR 448, 458.

[17]Reasons [92]–[97] (emphasis added).

Separately, his Honour addressed the question whether there was ‘an agreement’ within the meaning of s 151(1) between the Secretary and the Commission. In his Honour’s view, the Funding Agreement satisfied that requirement because

[i]t extended beyond the provision of funding. It contained features commonly found in an agreement including for the performance of the Review in exchange for the payment of funding.[18]

[18]Ibid [107].

His Honour rejected the Union’s argument that, in order to satisfy the statutory description, the agreement must define the programs and practices which were to be the subject of the Review. This would be, his Honour said, to read into s 151(1) a requirement that was not there. His Honour said:

If the agreement identifies activities that will enable the Commission to review and report on whether there has been compliance with the [Act], such as discrimination in employment practices or the presence of sexual harassment or victimisation in the workplace, then that agreement satisfies

s 151(1). The programs and practices that are to be reviewed are any programs and practices that relate directly or indirectly to workplace and recruitment issues or behavioural and workplace composition or diversity issues, or which may impact those issues. The Commission is unlikely in advance of conducting the review to be able to define or nominate the relevant programs and practices. But that does not mean that a review that nominates relevant issues is not a validly constituted review under s 151(1).[19]
[19]Ibid [109] (emphasis added).

Whose ‘programs and practices’?

As can be seen from the extracts set out above, the judge accepted the Secretary’s submission that the subject-matter of the Review was:

·‘the programs and practices associated with the prevention and suppression of fire’; and
·‘the programs and practices associated with the delivery of fire services’.

In his Honour’s view, these were ‘programs and practices of the executive branch of Government’, delivered through CFA and MFB.

In this Court, the Union submitted that these findings were not supported by the evidence. On the contrary, it was said, the evidence showed that

the focus of the review was … on internal recruitment and staffing matters which might be barriers to equity and diversity in the composition of the workforces of the MFB and the CFA.

That this was the focus of the Review, it was said, was accurately captured by his Honour’s statement in the last of the passages excerpted above, as follows:
The programs and practices that are to be reviewed are any programs and practices that relate directly or indirectly to workplace and recruitment issues or behavioural and workplace composition or diversity issues, or which may impact on those issues.[20]

The Union also relied on what were said to be the
frequent references in the materials concerning the Review about promotion of equity and diversity in the workforces of the MFB and the CFA and the elimination of discrimination and sexual harassment …

[20]Ibid [109].

For his part, the Secretary submitted that there was no distinction

between programs and practices associated with the delivery of fire services and the subject matter of the Review.

According to the written case:
The MFB, the CFA, and everything that each of them does, are programs and practices of the Executive Government of Victoria. Any specific program or practice of the CFA and the MFB cannot be excised from the overall delivery of fire services by those agencies. It follows that the review that was requested by the Secretary on behalf of Government was a review of the ‘programs and practices’ of ‘the person’ who had made the request of, and the agreement with, the Commission, namely the Executive Government of Victoria.

And again:
[T]he programs and practices of the MFB and the CFA are necessarily programs and practices of the Executive Government of Victoria — the former is a subset of the latter.

In oral argument, it was said that

the MFB and the CFA are themselves programs and practices of the State of Victoria, and everything that they do connected with the delivery of [fire] services are also programs and practices of the State.

It followed, so it was said, that the Commission was not reviewing the programs and practices of the MFB and the CFA but was reviewing the MFB and the CFA themselves, as programs and practices of the Government.

In response to questions from the Court, Crown Counsel (who appeared for the Secretary) accepted that the focus of the Review was indeed on the workplace practices of the MFB and the CFA. Counsel submitted, however, that the effectiveness of the fire services, for which the State was ultimately responsible, was directly affected by

whether the workforce is subject to bullying, whether harassment is rife, whether they feel safe and respected in the sense that is relevant to the [Act] and the Charter.

Counsel also accepted that the Act imposed a number of duties on employers in relation to employees and that, for this purpose, the ‘primary duty holders’ were the MFB and the CFA. She submitted, however, that the accessorial liability provision in the Act created a potential exposure for the Government, which gave it an interest in ensuring compliance by the MFB and the CFA with the Act. The provision to which counsel was here referring was s 105 of the Act, which provides as follows:

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or this Part.

In answer to questions from the Court, Crown Counsel confirmed that the Government did not ‘in terms’ request the Commission to review the Government’s own accessorial liability. She maintained, nevertheless, that s 151 was

a tool for ensuring compliance … that can be deployed as much by a person who is in a position to exercise control or to influence compliance of the primary duty holder, as by the primary duty holder.

Consideration

With great respect to the trial judge, we consider that s 151(1) conferred no authority on the Commission to carry out the Review. Put shortly, the person which made the request to the Commission — the Government — was not the person whose programs and practices were to be, and became, the subject of the Review.

The key lies, in our opinion, in the nature of the Review for which s 151 makes provision. It is, as s 151(1) makes clear, a review to determine ‘compliance with this Act’. Self-evidently, questions of compliance with the Act can only arise in areas of activity to which the Act applies, and in respect of obligations which the Act imposes.

The relevant obligations in this case, as Crown Counsel conceded, are obligations which the Act imposes on the MFB and the CFA in their capacity as employers. The relevant obligations are:

·under pt 3, to eliminate discrimination, sexual harassment and victimisation;
·under div 1 of pt 4 of the Act, not to engage in discrimination;
·under pt 6, not to engage in sexual harassment; and
·under pt 7, not to engage in victimisation.

Those were, of course, the very matters identified in the draft terms of reference.[21]

[21]See [31] above.

All of the documentation, from the Secretary’s letter and the draft terms of reference through to the Funding Agreement and the MOUs, made it perfectly clear that the Review was to investigate whether the employment practices in the MFB and the CFA were, or were not, compliant with the Act. Crown Counsel accepted as much. On no reasonable characterisation, in our view, could the employment practices of those independent legal entities be characterised — for the purposes of s 151(1) — as the programs and practices of any other legal person. No other person was the employer of those who worked for the MFB or the CFA. It is precisely because the Act imposes obligations on an individual employer that the question of compliance to which a review under s 151(1) is expressly directed is, necessarily, a question of compliance by that employer with its obligations.

It may be accepted that the State of Victoria and, in particular, the responsible Ministers have an active interest in both the effective delivery of fire services and the elimination of discrimination in the workplaces of the statutory authorities through which those services are delivered. In the language of the State Bank case, it may be accepted that the delivery of fire services is a governmental function and that, in Victoria, both the executive and the legislature have decided that those services should be delivered — to a large extent — through the MFB and the CFA as statutory authorities. It may also be accepted that the occurrence, or persistence, of discrimination or harassment in the workplaces of those authorities can prejudice the effective delivery of fire services.

None of those matters can, however, alter the fact that what was here requested was a review of the employment practices of two employers for compliance with the Act. (Self-evidently, the Commission has no jurisdiction to review the delivery of fire services.) When the employer in question is a statutory corporation with its own legal responsibilities, s 151(1) does not allow a different legal person — in this case, the Government — to request the Commission to review the employment practices of that employer.

It seems clear enough that the policy underpinning s 151(1) is to encourage a person who has obligations under the Act to seek the assistance of the Commission to improve its compliance with the Act. The provisions for the development of work plans, under s 152(1), reinforce that clear legislative policy. But it is for the duty holder, and the duty holder alone, to request the review.

The alternative argument under s 157

Both at trial and on the appeal, separate arguments were directed to s 157 of the Act, which provides as follows:

(1) The Commission may undertake research into any matter arising from, or incidental to, the operation of this Act that it considers would advance the objectives of this Act.
(2) The Commission may collect and analyse data relevant to the operation and the objectives of this Act.

At trial, the argument based on s 157 was advanced only in the alternative. As already noted, the Secretary’s primary argument was that the Review was authorised by s 151(1), on the basis that it was ‘a review of programs and practices of the executive government of Victoria’. The Secretary’s outline of submissions at first instance developed that argument at considerable length, concluding as follows:

For these reasons, … the review was properly constituted under s 151(1) of the Act. This conclusion is sufficient to dispose of the first ground of review.

The outline then said:
Further or alternatively to the above, the Commission’s conduct of the review was in any event supported by other functions and powers it has under ss 155, 157 and 152 of the Act.[22]

[22]Emphasis added.

As noted earlier, s 155 provides as follows:

Functions and powers of Commission
(1) The Commission has the following functions—
(a) to establish and undertake information and education programs;
(b)to promote and advance the objectives of this Act and to be an advocate for this Act;
(c)any other functions conferred on it by or under this Act or any other Act, including the Charter of Human Rights and Responsibilities.

(2)The Commission has all the powers necessary to enable it to perform its functions.
(3)The Commission must exercise all its functions and powers in accordance with this Act and compatibly with the Charter of Human Rights and Responsibilities.

The Secretary’s trial outline contended that, in conducting the Review, the Commission was

performing its function of promoting and advancing the objectives of, and being an advocate for, the [Act]. The review is plainly directed at the identification and elimination of discrimination, sexual harassment and victimisation, and any systemic causes thereof, in the MFB and the CFA.

As to s 157, the Secretary submitted that the Review

involves the Commission undertaking research into matters arising from or incidental to the operation of the [Act] that it considers would advance the objectives of the [Act], and is collecting and analysing information and data relevant to the operation and objectives of the Act.

Finally, s 152 provides:

Action plans
(1) A person may prepare an action plan that specifies steps necessary to improve compliance with this Act.
(2)The Commission may—
(a) provide advice about preparing and implementing action plans; and
(b)set minimum requirements for action plans.

(3) An action plan is not legally binding, but a court or a Tribunal may consider an action plan if relevant to any matter before the court or Tribunal under this Act.

The trial outline contended that, as set out in the Secretary’s letter of 9 December 2015, the Minister

wanted an action plan developed in consultation with the fire services and other relevant stakeholders similar to work that the Commission had completed in relation to sex discrimination and sexual harassment within Victoria Police.

The judge upheld these submissions in part. His Honour concluded that, even if s 151(1) did not authorise the Review, power was nonetheless conferred by s 157. His Honour said:

Even if I were to find that the Review was not supported by s 151(1) of the [Act], the Commission’s review would be valid if it is supported by another power. I consider that the Commission’s work to date is supported by s 157 because that work has been in the nature of research and falls squarely within that section 157. It has not yet completed the Review, but s 151 authorises its completion. Therefore, s 151 in combination with s 157 provide additional legislative support for the Commission’s review.
I do not accept the Secretary’s submission that the Review could be otherwise published if the Review were invalidly requested and therefore not supported by s 151(1). Section 157, although a broad and enabling research power, does not confer upon the Commission the power to publish the findings of any research it may undertake pursuant to that section. There is a difference between information gathering to determine compliance with the Act, and reporting on and publishing that information.[23]

[23]Ibid [121]–[122] (emphasis added).

In this Court, the Secretary filed a notice of contention in these terms

1.The learned primary judge erred in holding … that the Review could not be published if the Review had been invalidly requested and was therefore not supported by s 151(1) of the [Act].
2.The learned primary judge should have held that, whether or not the Review had been validly requested under s 151(1) of the Act or

s 41(c) of the [Charter], publication of the First Respondent’s report of the Review is supported by the functions and powers of the First Respondent under ss 155, 157 and 152 of the [Act].

The Secretary’s written case in response to the Union’s contentions maintained that his Honour was correct, for the reasons he gave, in concluding that ‘the Review was properly constituted under s 151(1)’. The written case filed in support of the notice of contention did not advance — as the Secretary’s trial submission had — the proposition that other provisions of the Act ‘in any event’ empowered the Commission to conduct the Review. The proposition stated in the written case was simply that

publication of a report of the Review is supported by the Commission’s functions and powers in ss 155, 157 and 152 of the Act.

The supporting argument was expressed somewhat more broadly, however, as follows:

[Section] 151 is not the, or the only, source of the Commission’s power to gather and analyse information about compliance with the [Act] and to prepare and publish a report of its conclusions. Rather, s 151 enables a person to request the Commission to conduct a compliance review, with an agreed scope and outcomes, and to pay for the Commission to do so.
There is nothing particular about the language of ss 151, 152, 155 and 157 that indicates that they are to be construed as mutually exclusive powers, or as subject to the fulfilment of conditions in any one of them. There is also nothing about the context of those sections that indicates they should be construed in that way. Indeed the context suggests otherwise; they form part of a suite of generally expressed, overlapping and non-coercive powers conferred on the Commission to promote compliance with the [Act]. There is also nothing about the purpose of the [Act] that supports such a construction. Again, to the contrary, the beneficial and remedial objects of the [Act] suggest that, in the absence of express language, the provisions are to be construed broadly and not as impliedly limiting one other.[24]

[24]Citations omitted.

In oral argument, Crown Counsel also advanced a broader submission. She contended that ‘far too much significance’ had been attached to s 151, which was ‘not the only source of power that the Commission had to conduct the Review’. The Commission’s powers were ‘much more broad-ranging’, counsel submitted, and the validity of the Review ‘really turned’ on ss 155 and 157. Section 151 was thus to be viewed as

a way, but not the only way, for the Commission to exercise its research functions, and its general advocacy functions.

According to the submission, the research function under s 157, and the advocacy function under s 155(1)(b), were independent functions of the Commission. Independently of s 151, they provided authority for the carrying out of the online survey and — by implication — for the publication of the results.

Consideration

We would also reject these submissions. In our opinion, there is no other source of power in the Act for the conduct of the Review, or for the publication of any report of the Review. As both the Government and the Commission recognised from the outset, a compliance review could only be conducted under the authority of s 151. The significance attached to that section, both in the commissioning paperwork and in these proceedings, is wholly unsurprising.

There is no doubt that the Commission’s research and advocacy functions are conferred in very wide terms. But it is, in our view, a fundamental mischaracterisation of the Review to describe it as either ‘research’ or ‘advocacy’. The true characterisation appears from the Secretary’s letter to the Commission and, in turn, the Commission’s letter to the Secretary of the Union:

The Independent Review will be conducted under s 151 of the [Act] and s 41(c) of the [Charter]. This will include any relevant research under s 157 of the [Act].[25]

[25]See [42] above (emphasis added).

Both the government as requestor, and the Commission as the recipient of the request, well understood that it was s 151(1) which was being invoked. This is hardly surprising, since it was the employment practices of the MFB and the CFA which were to be reviewed for compliance with the Act, and s 151 is the exclusive source of power for such a review. It is equally unsurprising that both government and Commission intended that the research function under s 157 would be engaged as an incidental power, in aid of the review to be carried out under the authority of s 151.

If there is no power to conduct a compliance review, because s 151(1) has not been complied with, a general power to conduct research cannot supply an alternative source of power for such a review. The statute ‘confers only one power to take the relevant action’.[26] Parliament has specified in s 151 the circumstances in which, and the conditions on which, a compliance review may be conducted. The crucial condition is, of course, that the employer whose compliance with the Act is to be reviewed must have requested the review. On well-established principles, a general power like s 157 cannot be relied on to authorise a compliance review free of that condition.[27]
[26]Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 589 [59].
[27]See, eg, Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7.

Nor can the survey be viewed as somehow separate from the Review. It was the first step in the Review, as identified in the Funding Agreement, and it could only be carried out because MFB and CFA agreed to provide their employees’ email addresses for the purposes of the Review. The survey was, moreover, an essential step in ascertaining the extent of compliance with the Act, as the Commissioner explained in her letter to CFA members about the survey:

I am pleased to let you know that [the Commission] has now started the Independent Review into equity and diversity within CFA and MFB.
The Independent Review will look at how to build and strengthen each organisation to make sure your workplaces are safe, inclusive and free from discrimination.
We want to hear from all of you about what works and what may need to change in your organisation to make sure there is zero tolerance for discrimination, including bullying, and sexual harassment.

On 21 July 2017, the Commission confirmed to the Union’s solicitors that ‘amongst other things, the Commission has conducted a survey as part of the Review’.[28]

[28]Emphasis added.

A related argument advanced on behalf of the Secretary was that s 151 did not itself confer powers or functions on the Commission but, rather, enlivened powers and functions conferred by other provisions. With respect, this misreads s 151(1). The compliance review function is a distinct function, with its own source of statutory authority. The provision contemplates that the terms of the review will be determined by agreement between the Commission and the person requesting the review. Precisely because the review is done on request, no question of the exercise of coercive powers is likely to arise.

As we said earlier, s 151 gives the Commission power, as a matter of necessary implication, to do a compliance review of the programs and practices of the person requesting the review. In the same way, s 151(2) contemplates — and hence impliedly authorises — the Commission giving advice to that person, following the review, about whether its programs and practices are, or are not, compliant with the Act. It is precisely because the giving of such advice is the logical corollary of the conduct of a review that the legislature considered it necessary to provide expressly for an immunity against liability arising from the giving of that advice.

Given that a compliance review takes place by agreement, the person requesting the review can agree to the Commission undertaking whatever research is necessary for the conduct of the review. Alternatively, the Commission can rely on its express research power under s 157. On no view, however, does s 157 authorise the Commission to conduct a compliance review of a person’s programs or practices, nor does it authorise the publication of the results of a survey conducted as part of such a review.

For these reasons, we would uphold the first two grounds of appeal. On that basis, the decision at first instance must be set aside and, in its place, orders made restraining the Commission from proceeding with the Review and publishing any report of it. In those circumstances, we can deal much more briefly with the remaining grounds of appeal.

Grounds 3 and 4: scope of review not confined to ‘compliance’

At first instance, and again in this Court, the Union advanced an alternative argument that if, contrary to its primary argument, the Review was authorised by s 151 of the Act, the Commission’s investigation had travelled beyond the legitimate scope of a ‘compliance review’. Specifically, it was said, the Review had impermissibly encompassed an investigation of ‘safety, respect, inclusion and bullying generally’ at the workplaces of the MFB and the CFA. Further, it was said, the Commission was

conducting a general review of workplace behaviour and culture at the MFB and the CFA.

The trial judge rejected these arguments, expressing his conclusion in these terms:

The review function is broad and can consider organisational practices and programs generally to obtain an accurate picture of those areas of the work environment where discrimination, sexual harassment and victimisation may occur.
The material before the Court, particularly the Terms of Reference, do not indicate that the Commission acted beyond power. The Review and its survey can legitimately harvest a large pool of information and extract information relevant to its inquiry. The Commission has broad investigatory powers. Often to obtain information that is relevant to a topic a wide array of information must be assembled and assessed.
To take by way of example the word ‘safety’ which is contained in the Terms of Reference, it should be read as safety from discrimination or sexual harassment, as an employee who is subject to workplace incidents of these kinds is likely to feel unsafe at work. The use of the word ‘safety’ does not mean that the Review is reviewing workplace safety generally, but reviewing workers’ safety from matters such as discrimination, sexual harassment or victimisation that might be associated with bullying.[29]

[29]Reasons [146]-[148].

We respectfully agree. These grounds must be rejected.

Grounds 5–7: the online survey and unreasonableness

At first instance and again on this application, the Union contended that the decisions of the Commission to conduct the online survey and then to rely on its results, despite what were said to be serious methodological flaws, were unreasonable in the Wednesbury sense.[30] Both sides led evidence before the judge going to the question of the survey methodology. His Honour summarised the effect of that evidence, and the submissions of the parties, in his reasons. He rejected the unreasonableness submission, expressing the relevant conclusions in these terms:

The survey purpose was to permit employees and volunteers of the MFB and CFA to participate in the Review. The data, although not establishing prevalence, may give a picture of work practices and whether there are instances of discrimination, sexual harassment or victimisation that fall within the Terms of Reference. For example, if the analysis of responses reveal that employees or members or volunteers feel unsafe in a workplace, further inquiry and consideration may also reveal that people may have experienced discrimination, sexual harassment or victimisation at that workplace. Those who experience discrimination, harassment or victimisation are unlikely to feel safe at work. Findings from the survey data may aid the development of programs and practices of the MFB and CFA on ‘safety at work’ and assist in development of a ‘safe’ work environment. In that way, the survey may assist the Commission perform the Review in accordance with the Terms of Reference, and more broadly, fulfil its role under s 151 of the [Act] and s 41(c) of the Charter. The Commission’s agreement to conduct matters confidentially affected the way it would undertake the survey.
Any limitations in the data obtained from the surveys can be assessed, acknowledged and taken into account in any resulting analyses and reporting of the data. The Commission as a public body with important functions would be expected to clearly state those limitations.[31]

[30]See Minister for Immigration v Li (2013) 249 CLR 332.

[31]Reasons [189]–[190].

In this Court, the unreasonableness submission was only faintly pressed. Like his Honour, we would reject it. His Honour’s reasons are cogent and compelling, and we respectfully agree with them. These grounds must also be rejected.

TATE JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	31
*The statutory scheme*...................................................................................................	33
*The alternative argument — alternative sources of power to prepare and publish report*...............................................................................................................	37
A preliminary point — no appeal on critical finding (that all work to date was supported by research power)..........................................................................................	38
The Secretary’s submissions............................................................................................	42
(1) Multiple sources of power.......................................................................	42
(2) The gateway argument.............................................................................	45
The Union’s submissions.................................................................................................	47
(1) Section 151 is an exclusive power...........................................................	47
(2) General powers should be ‘read down’.................................................	48
Analysis..........................................................................................................................	49
(1) The Authorities..........................................................................................	50
(2) Application to the Act...............................................................................	55
*Conclusion*....................................................................................................................	59

Introduction and summary

I have had the advantage of reading in draft form the judgment of Maxwell P and Priest JA (‘the joint reasons’). I agree with their Honours, for the reasons they give, that s 151(1) of the Equal Opportunity Act 2010 (the ‘Act’) does not confer authority on the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) to carry out the review that it undertook into the programs and practices of the Metropolitan Fire Brigade (‘the MFB’) and the County Fire Authority (‘the CFA’) (‘the Review’). For those reasons I would grant leave with respect to grounds 1 and 2[32] and uphold those grounds.[33] I also agree, for the reasons their Honours give, that grounds 3 and 4,[34] and 5 to 7,[35] are without merit and should be rejected.
[32]For convenience in what follows I shall refer to the proceeding in this Court as ‘the appeal’.
[33]I also agree that the source of power to conduct the Review is not to be found in the cognate provision to s 151 of the Act under s 41(c) of the Charter of Human Rights and Responsibilities (‘the Charter’). Grounds of appeal 1 and 2 are:
(1) The learned judge erred in holding that the review (the ‘Review’) conducted by the First Respondent into the Metropolitan Fire Brigade (‘MFB’) and the Country Fire Authority (‘CFA’) was validly constituted under s 151(1) of the Equal Opportunity Act 2010 (the ‘EOA’) and s 41(c) of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) by a request in writing dated 9 December 2015 from the Second Respondent to the First Respondent.
(2) The learned judge should have held that the Review was not validly constituted under either s 151(1) of the EOA or s 41(c) of the Charter by the written request of 9 December 2015 because:
(a)the request for the Review was made by the Second Respondent on behalf of the Executive Government;
(b)the evidence established that the Review was into the programs and practices of the MFB and the CFA which related directly or indirectly to workplace and recruitment issues and behavioural and workplace composition or diversity;
(c)the evidence did not establish that the request was for a review of the programs and practices of the Executive Government.
[34]Grounds 3 and 4 allege that the Commission acted beyond its powers by investigating matters which it did not have the power to investigate (for example, bullying generally and not because of a protected attribute under s 6 of the Act).
[35]Grounds 5 to 7 allege that the decision to conduct, and continue with, the online survey under the methodology adopted was void for unreasonableness.

However, I consider that what the joint reasons describe as ‘the alternative argument under s 157’, raised in the Notice of Contention filed by the second respondent, the Secretary to the Department of Justice and Regulation (‘the Secretary’), should be accepted. In my view, although s 151 does not confer authority on the Commission to conduct the Review, I consider that s 151 is not relevantly an exclusive source of power. A review requires the exercise of the general powers of the Commission. These can be enlivened in various ways and not only by the making of a request under s 151. In my view, the Commission has the power to conduct, and complete, the Review and publish its report by reason of s 157 and associated provisions of the Act.

It is necessary to consider in a little detail the statutory scheme of the Act.

The statutory scheme

Section 157 of the Act appears in pt 11 of the Act which provides for the continuation of the Commission and otherwise sets out the functions and powers of the Commission. The heading to pt 11 is ‘Victorian Equal Opportunity and Human Rights Commission’ and div 1 is headed ‘The Commission’. Division 1 of pt 11 consists of ss 154–160.

Section 154 continues the Commission as a body corporate that may do all acts and things that a body corporate may, by law, do. Section 155 is the primary section that identifies the functions of the Commission, namely as the undertaking of education programs and advocating for the promotion of the objectives of the Act. Section 155 also acknowledges that the Commission has ‘other functions’ conferred on it including other functions conferred by the Act. This would include the ‘other function’ of reviewing a person’s programs and practice for compliance with the Act under s 151(1). It would also include another function that aims to ensure compliance with the Act, namely the function under s 152(2), of providing advice about the preparation and implementation of ‘action plans’ by persons, an ‘action plan’ being a plan ‘that specifies steps necessary to improve compliance with this Act’. The preparation of action plans is not linked to the conduct of reviews under s 151. Sections 151 and 152 both appear in pt 10 of the Act, headed ‘Practice guidelines, reviews and actions plans’ but in separate divisions, divs 2 and 3 respectively.

By s 155(2), the Commission is given all the powers necessary to enable it to perform its functions.

Section 155 provides:

155 Functions and powers of Commission
(1) The Commission has the following functions—
(a) to establish and undertake information and education programs;
(b) to promote and advance the objectives of this Act and to be an advocate for this Act;
(c) any other functions conferred on it by or under this Act or any other Act, including the Charter of Human Rights and Responsibilities.

(2) The Commission has all the powers necessary to enable it to perform its functions.
(3) The Commission must exercise all its functions and powers in accordance with this Act and compatibly with the Charter of Human Rights and Responsibilities.

The statutory benchmark for all of the Commission’s functions is the promotion and advocacy of the objectives of the Act. The objectives of the Act include the elimination of discrimination and sexual harassment ‘to the greatest possible extent’ and to encourage ‘best practice and facilitate compliance with [the] Act by undertaking research, educative and enforcement functions’.[36] The aim of compliance with the Act permeates its provisions.
[36]The Act s 3(a), (e).

The objectives of the Act are set out in s 3:

3 Objectives
The objectives of this Act are—
(a) to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;
(b) to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;
(c) to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;
(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—
(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
(ii) equal application of a rule to different groups can have unequal results or outcomes;
(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;

(e) to enable the Victorian Equal Opportunity and Human Rights Commission to encourage best practice and facilitate compliance with this Act by undertaking research, educative and enforcement functions;
(f) to enable the Victorian Equal Opportunity and Human Rights Commission to resolve disputes about discrimination, sexual harassment and victimisation in a timely and effective manner, and to also provide direct access to the Victorian Civil and Administrative Tribunal for resolution of such disputes.

The ‘review’ function in s 151 is not separately identified in the objectives of the Act. There is no definition of a ‘review’ under the Act. Importantly, as I discuss below, there are no special or distinctive powers associated with conducting a review.

Section 156 provides that the Commission ‘must undertake programs to disseminate information and educate the public with respect to ... the objectives of [the] Act’.[37]
[37]It must also undertake programs to educate the public with respect to the Charter and other matters.

Section 157 of the Act confers a broad power on the Commission to undertake research and collect data. The research function is linked to ‘any matter arising from, or incidental to, the operation of [the] Act’ that it considers would advance the objectives of the Act. The touchstone at all times remains an assessment of what would promote or advance the objectives of the Act. Section 157 relevantly provides:

157 Commission’s research functions
(1) The Commission may undertake research into any matter arising from, or incidental to, the operation of this Act that it considers would advance the objectives of this Act.
(2) The Commission may collect and analyse information and data relevant to the operation and the objectives of this Act.

Section 158 empowers the Commission to report to the Attorney-General on any matter arising from the performance of its educative or research functions:

158 Commission may report on educative or research functions
The Commission may, at any time, submit a report to the Attorney-General on any matter arising from the performance of the Commission's functions under section 156 or 157.

In addition to its educative and research functions, the Commission is empowered, pursuant to s 159, to intervene, with the leave of the court, in legal proceedings involving ‘issues of equality of opportunity, discrimination, sexual harassment or victimisation’. The Commission may also appear, pursuant to s 160, with the leave of the court, as amicus curiae in proceedings that ‘may significantly affect the right to protection against discrimination of persons who are not parties to the proceedings’.

The Commission also has the function of offering services designed to facilitate resolution of a dispute.[38] A ‘dispute’ means a dispute ‘about compliance with [the] Act’.[39] Whether or not a person has brought a dispute to the Commission for dispute resolution, the person may apply to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) under s 122 in respect of an alleged contravention of the prohibitions on discrimination in employment and employment-related areas, in education, in the provision of goods and services and disposal of land, in accommodation, by clubs and club members, in sport and in local government[40] or an alleged contravention of the prohibition of sexual harassment[41] or of the prohibition of victimisation.[42]
[38]Section 111(a).
[39]Section 4(1).
[40]Part 4.
[41]Part 6.
[42]Part 7.

In certain circumstances, pursuant to pt 9 of the Act, the Commission can conduct an ‘investigation’ if there are reasonable grounds to suspect that one or more contraventions of the Act have occurred and the matter cannot reasonably be expected to be resolved by dispute resolution or by an application to the Tribunal,[43] or if the Tribunal refers a matter to the Commission.[44] In the conduct of an investigation, the Commission may apply to the Tribunal, pursuant to s 131, for an order requiring a person to provide information or relevant documents or for an order, pursuant to s 134, compelling a person to attend before the Commission.[45] There are specific requirements in relation to the production of a report of an investigation, its content, and how findings are to be dealt with.[46] An outcome may involve a referral to the Tribunal,[47] prompting an inquiry by the Tribunal,[48] or an agreement on action that is required to be taken to achieve compliance.[49] The agreement may be registered with, and enforced or supervised by, the Tribunal.[50]
[43]Section 127.
[44]Section 128.
[45]Section 134.
[46]Section 136.
[47]Section 139(2)(c).
[48]Section 141.
[49]Section 139(2)(b).
[50]Section 140.

The Union’s submissions

(1) Section 151 is an exclusive power

[66]See [131] above.

[67]The letter is dated 22 July 2016.

[68]See [131] above.

In response, the Union submits that the power to conduct a review of a person’s programs and practices to determine compliance is, exclusively, the power conferred under s 151(1). It relies on the principle derived from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[69] to the effect that a specific grant of power qualified by necessary preconditions ‘involves a denial of a power to do the same thing ... free from the conditions and qualifications prescribed by the provision’ (‘the Anthony Hordern principle’).[70] The Union submits that the Anthony Hordern principle means that a purported but invalid exercise of the power under s 151(1) cannot be saved by other provisions conferring different powers. In particular, it submits that the powers under ss 155 and 157 cannot support the conduct of the Review when the precondition on which the Review depended, namely, requests by the CFA and MFB for the Commission to review their respective programs and practices to determine their compliance with the Act, were never made. The conferral of the specific power under s 151 to conduct a compliance review of programs and practices is qualified by the need for a request to be made by the person whose programs and practices will be reviewed and therefore, so it is submitted, applying the Anthony Hordern principle, there is a denial under the Act to carry out a compliance review of a person’s programs and practices free from the qualification prescribed.
[69](1932) 47 CLR 1 (‘Anthony Hordern’).
[70]Ibid 8.

The Union points to the general powers conferred on the Commission by s 155. It contends that, if the Secretary’s submission was correct, it would carry the absurd consequence that there would be no need for the review power under s 151 or the research power under s 157. Both s 151 and s 157 would be redundant. The general power to perform the function of promoting and advancing the objectives of the Act would be sufficient, on the Secretary’s argument, for the Commission to conduct a review, undertake research, publish a report and more, without reliance on s 151 or s 157. The Union submits that the absurdity of the consequence of the Secretary’s position should preclude its acceptance.

(2) General powers should be ‘read down’

Furthermore, the Union submits that the Secretary’s approach relies on reading specific provisions in isolation from one another. It submits that the proper approach is to read the Act as a whole and that each provision must be read in the context of the other provisions of the Act.[71] This has the consequence that the scope or breadth of a provision of an Act, which might appear unrestricted when viewed in isolation, is appropriately confined when account is taken of other statutory provisions that overlap in operation.
[71]Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449, 455; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315.

The Union submits that the breadth of the research power under s 157 should be ‘read down’ as confined by the operation of the review power under s 151. In its written submissions, it referred to the significance to be placed on statutory context, and said:

Applying these well-established canons of statutory construction, s 157 should be understood as a stand-alone power to conduct research which, because of the powers conferred by s 151, would not include research for the purposes of a review. The power to conduct research for the purposes of a review is plainly incidental to the power to conduct the review under s 151. It does not need to rely on s 157. That section should instead be understood as conferring a power to conduct stand-alone research unconnected with a review. It would encompass, incidentally, power to publish a report of the research. But the power to publish the report of a review, whether or not based on research conducted for the purposes of the review, is conferred by s 151 not s 157.[72]

[72]Applicant’s Notice in Response to Second Respondent’s Notice of Contention (dated 23 February 2018) [6].

In other words, s 157 should be understood as conferring a power to engage only in that research that is unconnected to a review. Instead, s 151 should be read as including, as an incidental power, the power to conduct research for the purposes of a review. There is, accordingly, no need to invoke the power under s 157 when research is being carried out as part of a review.

The submission that s 157 should be ‘read down’ due to its overlapping operation with s 151, which I consider more substantially below,[73] is, in my view, directly inconsistent with the failure of the Union to seek to overturn the critical finding. To treat the critical finding as in effect a matter that could be disregarded for the purposes of the appeal contradicts the claim that, as a matter of construction, s 157 should be understood as a stand-alone power that does not support research connected to a review. His Honour found precisely the opposite.
[73]See [164] below.

The Union submits, in effect, that the critical finding is unimportant, because all that matters is that the only source of power for the publication of the report of the Review lies in s 151 and that is unavailable. The difficulty facing the Union is that, if s 157 does support the research undertaken in the Review to date (as his Honour found), what statutory constraint precludes that research being published in accordance with the incidental power under s 157?[74] The Union’s position is again driven back to the proposition that s 151 operates as a code. I have already remarked that I consider that proposition to be untenable. [75]

Analysis

[74]As noted, the Union concedes that the power under s 157 would encompass, incidentally, the power to publish a report of the research: See [119] and [141] above.

[75]See [122]–[123] above. See further [160] below.

There are competing principles of law at the heart of the controversy arising under the Notice of Contention. As mentioned, the Secretary relies on the AEU principle while the Union relies on the Anthony Hordern principle.[76]

(1) The Authorities

[76]See [107] and [138] above respectively.

To recap, the AEU principle is the principle that reliance upon a source of power that is not available does not invalidate an action if there is another available source of power that can support the action. In AEU the High Court determined that the Minister of Education of South Australia did not have the power to appoint teachers under s 9(4) of the Education Act 1972 (SA). Section 9(4) conferred a general power on the Minister to appoint ‘officers and employees’. The Court found that the sole source of power lay in s 15 of the Education Act which empowered the Minister to appoint officers of ‘the teaching service’ on a permanent or temporary basis. For many years the Minister had appointed temporary ‘contract teachers’ under s 9(4) and they had attracted less favourable terms and conditions than those appointed under s 15. The Court found that the power conferred by s 15 was linked to a protective regulatory regime found elsewhere in the Act. The Court held, however, that mistaken reliance upon a source of power does not necessarily invalidate actions taken in that reliance; the question depends upon whether the statutory regime provides an alternative source of power:

A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):
If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.[77]

[77]AEU (2012) 248 CLR 1, 16 [34] (citations omitted).

As the extract from Heydon J in Eastman v Director of Public Prosecutions (ACT)[78] makes clear, identifying whether there is an available alternative source of power will require an assessment of whether the preconditions in the alternative source of power have been met. Here that would involve an assessment of whether any preconditions in ss 154–158 antecedent to their valid exercise have been met. There was no argument in this Court to the effect that reliance could not be placed on those powers because they incorporated pre-conditions which were not satisfied.
[78](2003) 214 CLR 318, 362 [124].

In AEU the Court made reference to the earlier principle derived from Anthony Hordern. There the Court was concerned with the relationship between a statutory provision, s 40 of the Conciliation and Arbitration Act1904–30 (Cth), which permitted orders to be made that gave preference in employment to unionists, ‘other things being equal’, and an award that, in respect of employers who employed less than 50 operatives, directed that preference be given to female unionists over other females and, in respect of employers who employed more than 50 operatives, directed that preference be given to female unionists over other females, other things being equal. The Court held that the award was invalid as not complying with the requirements of s 40. The unconditional nature of the preference to be observed where less than 50 operatives were employed went beyond the scope of the power conferred by s 40. In making the award, the judge of the then Court of Conciliation and Arbitration had purported to exercise general powers under ss 24(2) and 38(a) to determine industrial disputes. The Court held that in circumstances where preference was an issue necessary to be dealt with for the settlement of an industrial dispute, this could only be dealt with by the limited and qualified power specifically conferred by s 40. Gavan-Duffy CJ and Dixon J said:

The order deals with preference of members of an organization over other persons in employment, and over that subject a limited and qualified power is specifically given by sec. 40. Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing.[79]

[79]Anthony Hordern (1932) 47 CLR 1, 7. McTiernan J took a similar view. Starke and Evatt JJ were in dissent.

Their Honours went on to say that where a specific power is conferred which prescribes the manner in which the power is to be exercised and the particular restrictions which must be observed, reliance cannot be placed upon a general unqualified power:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[80]

[80]Anthony Hordern (1932) 47 CLR 1, 7.

This approach was also supported by the earlier history of s 40 which had required the Court ‘to take elaborate precautions’[81] to give notice to persons and organisations that might be interested to allow them to be heard and ‘to avoid an oppressive use of the order for preference’.[82] Their Honours said:

It seems unreasonable to suppose that under the general power to determine disputes the Court was to be at liberty to disregard safeguards of such a nature.[83]

[81]Ibid 8.

[82]Ibid.

[83]Ibid.

Section 40 also excluded children of employers from the adverse effect of preference. This too was viewed as an important factor supporting the preconditions:

If a parallel and alternative power exists whenever there is an industrial dispute involving preference of employment, the intention of the Legislature to exclude children can never in such a case be effective.[84]

[84]Ibid.

McTiernan J arrived at the same conclusion on the basis of the interpretative maxim expressio unius est exclusio alterius,[85] namely, an express reference to one matter indicates that other matters are excluded. The Anthony Hordern has also been described as an application of the maxim expressum facit principle cessare tacitum, namely, where a particular procedure is designated to achieve something, other procedures are thereby excluded.[86] It is well accepted that these maxims should be applied with caution.[87]
[85]Ibid 20–1.
[86]Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (Malaysian Declaration Case) (2011) 244 CLR 144, 177 [50] (French CJ) (‘the Malaysian Declaration Case’).
[87]O’Sullivan v Farrer (1989) 168 CLR 210, 215; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575; Balog v Independent Commission Against Corruption (1990) 169 CLR 625.

Anthony Hordern has been considered by the High Court on a number of occasions. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[88] the Court held that the power to cancel a visa under s 501(2) of the Migration Act 1958 (Cth) was not restricted by circumstances that would engage the power of deportation under s 200 of that Act. The Court made it clear that the Anthony Hordern principle is only applicable where it is possible to conclude that the statute confers a single power to perform the relevant action. It is not sufficient to observe that there is a particular power with restrictions or pre-conditions. Before those restrictions or pre-conditions qualify a general power it must be possible to conclude that the particular power is the only power available for action of that kind. Gummow and Hayne JJ observed:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the ‘same power’, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.[89]

[88](2006) 228 CLR 566 (‘Nystrom’).

[89]Ibid 589 [59] (emphasis added) (citations omitted). The ‘cases considered above’ included R v Wallis (Wool Stores Case) (1949) 78 CLR 529; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 where by reason of matters of construction or statutory history it was appropriate to infer that there was only a restricted source of power available.

Their Honours concluded that the two powers in question, ss 501(2) and 200 of the Migration Act, dealt with different subject matters rendering them insusceptible to the Anthony Hordern principle. This was because the powers:

have different provenances, and persons in respect of whom a deportation order has been made have a different status and different rights under the Principal Act. Those differences cannot be ignored by an ellipsis which regards s 200 and s 501 as directed to the same practical outcome.[90]

[90]Nystrom (2006) 228 CLR 566, 591 [67]. See also Commonwealth v Sanofi (2015) 237 FCR 483, 510 [106] (Kenny and Nicholas JJ).

They based their conclusion upon the absence of any inconsistency between the two powers and their capacity for ‘a sensible concurrent operation’. They said:

there is no actual contrariety between the two sets of provisions, which are capable of a sensible concurrent operation.[91]

[91]Nystrom (2006) 228 CLR 566, 585 [48] (emphasis added).

Heydon and Crennan JJ, with whom Gleeson CJ agreed,[92] arrived at the same conclusion but expressed their conclusion as a finding that there was ‘no repugnancy’ between the two sections. They said:

The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other.[93]

[92]Ibid 571 [1]–[2].

[93]Ibid 616 [165] (emphasis added) (citation omitted).

In the Malaysian Declaration Case[94] the High Court found that there was only one available source of power to take persons seeking asylum to another country for the determination of their refugee status.[95] It relied upon Nystrom and made it clear that the Anthony Hordern principle, and the maxims it rests upon, must be applied subject to the particular text, context and purpose of the statute being considered. In explaining the basis upon which Gummow and Hayne JJ decided Nystrom, French CJ said:

This approach has been described as one of ‘obvious good sense’. It reflects a principle of wide application embodied in what Pearce and Geddes call the ‘difficult-to-translate maxim’, expressum facit cessare tacitum. Like all such principles, however, it must be applied subject to the particular text, context and purpose of the statute to be construed.[96]

[94](2011) 244 CLR 144.

[95]Migration Act s 198A.

[96](2011) 244 CLR 144, 177 [50] (citations omitted). See also Gummow, Hayne, Crennan and Bell JJ at 191 [95] and Kiefel J at 231 [237].

It follows from Nystrom that application of the Anthony Horden principle depends upon establishing that the particular source of power purportedly relied upon by a decision-maker is the exclusive source of power available for the decision made. It is only then that an inference is available that the failure of a necessary pre-condition to the exercise of the power involves a denial to do the same thing free of that condition. Nystrom also dictates that the requirement of exclusivity can only be made out after an assessment of the whole of a statutory scheme that is approached without an assumption that a particular source of power is necessarily an exclusive source of power. The process is one of orthodox statutory construction of the powers conferred, interpreted within the context of the statute as a whole. The test involves asking whether the two powers can have ‘a sensible concurrent operation’, or whether, instead, there is a ‘repugnancy’ between them.

(2)Application to the Act

In my view, s 151 is not an exclusive power to engage in the steps involved in conducting a review. I consider that the text, context and purpose of the Act do not permit the conclusion that s 151 is the only available source of power to engage in the Review. I consider that s 151 and s 157 can have a sensible concurrent operation.

I arrive at this conclusion for the following 15 reasons:

(1) There is no definition under the Act of what a ‘review’ is — the word ‘review’ seems to be used not with any technical meaning but only to reflect a layperson’s understanding;

(2) There is no indication in s 151 or elsewhere under the Act of how a review is to be conducted;

(3) There are no specific ‘fact gathering’ or other distinctive powers associated with conducting a review;

(4) There are no compulsory powers associated with a review (by contrast with an ‘investigation’);

(5) Section 151 does not specify any form of process for the conduct of a review;

(6) There is no substantive legislative differentiation between a review and the exercise of general research or other powers;

(7) There is no indication of what substantive matters an agreement to conduct a review is to deal with, other than general compliance with the Act;

(8) Compliance with the Act is a matter in relation to which the Commission has multiple powers, as described above;

(9) There are no identified conditions or restrictions to be satisfied in the course of the conduct of a review;

(10) There are no outcomes of a review identified other than the potential for ‘advice’ to be given by the Commission;

(11) The Commission has a general power to give advice as part of its educative and advocacy functions;

(12) Any advice following a review does not give rise to any duty or obligation on the person who has been given the advice or any defence that would otherwise be available to the person — this stands in contrast to the outcome of an investigation which, as described, can lead to enforceable agreements or referrals to the Tribunal;

(13) The express recognition in s 151(2) that an agreement may provide for payment of the Commission’s reasonable costs of undertaking the review suggests that s 151 is in substance a means by which a person can seek to utilise the resources and expertise of the Commission;

(14) This construction is consistent with the objectives of the Act, including the elimination of discrimination and sexual harassment ‘to the greatest possible extent’ and to encourage ‘best practice and facilitate compliance with [the] Act by undertaking research, educative and enforcement functions’;

(15) On this construction there is no repugnancy between s 151 and ss 154–158; rather, the two sections can operate consistently with each other in a manner that furthers the objectives of the Act.

More generally, I consider that s 151 operates primarily as a mechanism by which a person can attract the resources and expertise of the Commission (if the Commission agrees), those resources being the performance of the Commission’s general powers and functions. That mechanism invites the Commission to use its general functions and powers to focus upon that person’s programs and practices. It authorises the targeted use of the general functions and powers of the Commission with respect to a person’s programs and practices. It is a facilitative provision enabling a person to have access to the Commission to assist the person in achieving or improving its compliance with the Act.

While s 151 is a source of power to conduct a review, and to enter into an agreement with the person who requested the review, the powers that the Commission uses during a review are the general powers that are conferred under ss 154–158. There are no specific powers conferred on the Commission to conduct a review; the Commission’s general powers are available and are broad. Construed in this way, s 151 and ss 154–158 are not competing powers. They are powers that are capable of a ‘sensible concurrent operation’.[97]
[97]Nystrom (2006) 228 CLR 566, 585 [48]. See Queensland v Attrill [2012] QCA 299 [29] (Holmes JA, with whom McMurdo P and Douglas J agreed).

The Commission’s general powers remain available to be exercised in the absence of a request. They are powers the Legislature has conferred on the Commission to be exercised in the pursuit of its objectives. Here, the research function of the Commission was aided by an agreement with the organisations that are the target of the research.

I reject the submission of the Union that the general research function under s 157 should be read down because of the primacy to be given to the power under s 151. In my view, there is no need to posit an incidental power under 151 for research to be undertaken in the conduct of a review when the Act confers an express function to undertake research under s 157 that can be read consistently with s 151. The Union’s submission has the improbable consequence that, although there may be circumstances where the Commission exercises its general research function to reveal instances of discrimination or sexual harassment in a person’s organisation prompting the person to make a request under s 151, once the request is made the Commission is precluded from further exercising its general research function under s 157 because that power cannot extend to the conduct of research for the purposes of a review. In my view, the breadth of the power under s 157 cannot wax and wane depending upon the circumstance of the existence of a review under s 151.

Furthermore, the need for the Union to posit an incidental power to conduct research, derived from the power to conduct a review under s 151, reveals the strained and artificial nature of the Union’s approach. In the absence of any express statutory indicia as to what powers are available to conduct a review, the Union is compelled to posit a host of incidental review-specific powers. This reinforces the proposition that, absent the adoption of a strained and artificial approach, there is nothing distinctive about the conduct of a review.

A sensible and coherent approach to the Act is to recognise that at all times the Commission can exercise its powers to perform its general functions, including the research function. The absence of a request does not preclude the Commission from exercising those general functions conferred under the Act. In my view, the Secretary is correct to submit that the general functions under ss 154–158 include the power to undertake research into the programs and practices of the CFA and MFB, the power to complete the Review, and the power to publish the report of the review.

In particular, I consider that the Commission has the power, incidental to its research power under s 157, to publish the work on the Review it had completed to the date of the trial before his Honour. I have rejected as untenable the Union’s submission that the only power to publish research conducted for the purposes of a review is under s 151.[98] It follows that, given the critical finding that the work to the date of the trial was supported by the research power under s 157, the Commission is at least at liberty to publish that research.
[98]See [144] above.

Furthermore, I consider that if further steps remain to check the accuracy of the research, or to provide parties with an opportunity to respond before publication, those steps are supported by the general powers under ss 155 and 157.

Conclusion

I would grant leave to appeal but dismiss the appeal on the basis that, although s 151 of the Act does not provide a source of power for the conduct of the Review, there is an alternative source of power available to support the Commission’s conduct of the Review and the publication of the report.

At the least the Commission should be at liberty to publish the research it had undertaken to the date of the trial, and to complete the checking of that research before publication.

I would uphold the Notice of Contention as I consider that the judgment of the judge below should be affirmed on that basis.

- - -

‘Commission’ means the first respondent;

‘Commissioner’ means the Victorian Equal Opportunity and Human Rights Commissioner;

‘CFA’ means the Country Fire Authority;

‘Department’ means the Department of Justice and Regulation;

‘MFB’ means the Metropolitan Fire and Emergency Services Board;

‘Minister’ means the Minister for Emergency Services;

‘Secretary’ means the second respondent; and
‘Union’ means the applicant.

[2018] VSCA 252

4 October 2018