United Firefighters' Union v Veohrc

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02290

UNITED FIREFIGHTERS' UNION OF AUSTRALIA	Plaintiff
v
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	First Defendant
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September and 23 November 2017
DATE OF JUDGMENT:	15 December 2017
CASE MAY BE CITED AS:	United Firefighters' Union v VEOHRC & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 773

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JUDICIAL REVIEW — Victorian Equal Opportunity and Human Rights Commission — Request by Government for review of Metropolitan Fire Brigade and Country Fire Authority — Nature and prevalence of discrimination, sexual harassment and victimisation — Whether review validly constituted — Whether Review was into matters that the Commission did not have power to investigate — Whether online survey conducted as part of the Review so fundamentally flawed that no authority acting reasonably could take account of it — Relevance of delay — Proceeding dismissed — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c); Equal Opportunity Act 2010 ss 1, 3, 6, 151, 152, 157.

EQUAL OPPORTUNITY AND DISCRIMINATION — Powers of Victorian Equal Opportunity and Human Rights Commission to review public authorities’ programs and practices to determine compatibility with human rights — Public authority — Right of Victorian Government to make request — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c).

HUMAN RIGHTS — Powers of Victorian Equal Opportunity and Human Rights Commission to review programs and practices of person requesting review — Who may request review — Conduct of review — Victorian Charter of Human Rights and Responsibilities Act 2006 ss 4, 41(c); Equal Opportunity Act 2010 ss 1, 3, 6, 151, 152, 157.

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

Introduction

Summary

Procedural Background

Background to the Review

The Secretary’s request for the Review
The response to the O’Byrne review
The Funding Agreement
Memoranda of Understanding

The Review

Online Survey
UFU’s objections to the Review

Anti-Discrimination and Human Rights Legislation

The Equal Opportunity Act 2010
The Charter of Human Rights and Responsibilities Act 2006

Control of fire services in Victoria

Fire Services Legislation

The Metropolitan Fire Brigade
The Country Fire Authority
The Emergency Management Act 2013

Ground One: The Review was not properly constituted

1(a)         Was there a valid request
1(a)         Consideration of whether the Review was properly constituted
1(b)Was there a valid agreement under s 151 of the EO Act?
1(b)Consideration of whether there was an agreement under s 151 of the EO Act
1(c)         Whether a Joint Review is permissible
1(c)          Consideration of the joint review issue
1(d)Is the Review supported by other sections of the EO Act?
1(d) Consideration of arguments based on other sections of the EO Act
Conclusion regarding Ground One

Ground Two: The challenge to the conduct of the Review

UFU’s submissions
The Secretary’s submissions
Consideration of Ground Two
Conclusion on Ground Two

Ground Three: Reliance on the Survey constitutes legal unreasonableness

The UFU’s evidence concerning Ground Three
The Secretary’s evidence concerning Ground Three
UFU Submissions on Ground Three
The Secretary’s submissions
Consideration of ground three

Remedies – The issue of UFU’s Delay

Conclusion about delay

Overall conclusion

HIS HONOUR:

Introduction

The United Firefighters Union of Australia (‘the UFU’) has applied for orders in this judicial review proceeding, including declarations and orders restraining conduct, to prevent the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) from continuing to conduct a review, and ultimately publish it, or a report of its outcomes, concerning discrimination, sexual harassment and victimisation in the Metropolitan Fire Brigade (‘MFB’) and the Country Fire Authority (‘CFA’). The UFU relies on three grounds:

(a) that the Review was not properly constituted;

(b) that the Review investigates matters which are beyond the Commission’s statutory powers; and

(c) that the Review includes an online survey which is so fundamentally flawed that no authority acting reasonably could take account of it.

Summary

In my opinion, the UFU has not established any of its three grounds. The Review was validly constituted and the Commission has not been shown to be investigating matters which are beyond its statutory powers. Nor has it been shown that the Commission has or will place any reliance on the online survey that would be unreasonable in the legal sense. I note that the Review has yet to be completed in part because of this proceeding. I add that, as the Commission is a public body with important statutory responsibilities, it is to be expected that the use it makes of the on line survey in the Review, or any report that it prepares of the Review’s outcome, will state accurately and with clarity the effect of the data obtained from the survey, taking into account the evidence led as to the survey’s purpose and limits. The proceeding will be dismissed.

Procedural Background

On 2 August 2017, at the proceeding’s initial directions hearing, the Commission gave a commitment to the Court that it would not publish the report until judgment in this case.[1] The Commission and the Secretary made submissions for the Secretary to be joined on the bases that:[2] the Commission believed the Hardiman principle applied to it; [3] because the Secretary is a necessary party, as he was the person that requested the Review, which is now close to completion; and because the Court would be assisted by the presence of the Secretary as contradictor.[4]
[1]Transcript of proceedings, United Firefighters’ Union v VEOHRC (Supreme Court of Victoria, S CI 2017 02290, Ginnane J, 2 August 2017) (‘T – 2 September 2017’), 12.16.
[2]Pursuant to r 9.06(b)(i) of the Supreme Court (General Civil Procedure) Rules 2015.
[3]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; T – 2 August 2017, 4.30-6.6.
[4]VEOHRC application for the Secretary to be joined filed 2 August 2017.

The UFU did not oppose or consent to that application and did not consider the applicability of the Hardiman principle to this case was necessary to explore.[5] I ordered that the Secretary be joined as second defendant,[6] to provide a contradictor to the UFU’s case.[7] The Commission’s counsel remained for the duration of the trial and in order to assist if required on issues about the Commission’s undertaking of the Review.
[5]Although it did direct the Court to the decision of Fagan and submitted that it disagreed with the Commission’s position: Transcript of proceedings, United Firefighters’ Union v VEOHRC & Anor (Supreme Court of Victoria, S CI 2017 02290, Ginnane J, 2 August 2017) 3.26 (‘T – 2 August 2017’); Fagan v Crimes Compensation Tribunal [1982] 140 CLR 666.
[6]Supreme Court (General Civil Procedure) Rules, r 9.06(b)(i).
[7]UFU v VEOHRC (unreported ruling, Supreme Court of Victoria, Ginnane J, 2 August 2017).

The hearing commenced on 8 September 2017. A second day was required, but that could not occur until 23 November for two reasons. One of the UFU’s deponent’s whom the Secretary wished to cross-examine, Mr J Murphy, was in Tasmania on the first day of the hearing, standing in for that State’s branch secretary. The UFU also wished to rely on evidence from Professor Ian Gordon, Professor of Statistics and Director of the Statistical Consulting Centre of the University of Melbourne, to provide expert opinion on the online survey that formed part of the Review. But, his evidence had not been presented in accordance with the rules. An adjournment was required for the evidence to be properly presented and for the Secretary to have the opportunity to present evidence in reply. The case resumed and was completed on 23 November 2017.

Background to the Review

In late 2015 and early 2016, several reports reviewing workplace culture and behaviour in public service organisations in Victoria were published. One such report was a Review conducted by former Tasmanian Police and Emergency Services Minister, David O’Byrne, at the request of the then Minister for Emergency Services Ms Jane Garrett, into the resourcing, operations, management and culture of the MFB and CFA in Victoria (‘the O’Byrne Review’).[8] Although the Review was positive on the whole and was not conducted in response to a particular incident or crisis,[9] it raised concerns regarding the presence of discrimination and sexual harassment within the ranks of the fire services in the following 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.[10]
…
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.[11]

[8]David O’Byrne, ‘Report of the Victorian Fire Services Review: Drawing a line, building stronger services’ (October 2015), Terms of Reference, 9 (‘O’Byrne Review’).

[9]Ibid 6.

[10]Ibid 30.

[11]Ibid 32.

The O’Byrne Review made twenty recommendations. Recommendation seven stated:

The Review recommends 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. This recommendation aligns with SAP Priority C relating to developing leadership that instils a positive workforce culture and promotes respect and diversity.[12]

[12]O’Byrne Review, above n 8, 32.

In December 2015, another such review was published by the Commission concerning sex discrimination, sexual harassment and organisational culture in the Victorian Police force.[13] It reported that many women in the police force experience sexual harassment and an entrenched discriminatory culture.[14] The UFU pointed to the Police Review and the way its findings were reported to support its attack on the methodology of the Commission’s on line survey, which is discussed below when the third ground is considered.
[13]Victorian Equal Opportunity and Human Rights Commission, ‘Independent Review into Sex Discrimination and sexual harassment, including predatory behaviour in Victoria Police – Phase 1 Report’ (December 2015) (‘Police Review’).
[14]Ibid 10-14.

It is in this context amid public and media interest and workplace culture of these public service organisations that the Commission was asked by the Victorian Government to conduct a review into discrimination, sexual harassment and victimisation in the MFB and CFA.

The Secretary’s request for the Review

The issues raised by the UFU’s case depend in large part on the creation or constitution of the Review. The evidence about that issue is in letters and other documents, which it is therefore necessary to set out in some detail.

On 9 December 2015, Mr Greg Wilson, Secretary to the Department of Justice and Regulation (‘the Department’ or ‘the Department of Justice’), wrote to the then VEOHRC Commissioner, Ms Kate Jenkins, on behalf of the Victorian Government requesting that the Commission undertake the Review that is now the subject of this litigation. That letter enclosed draft terms of reference and stated:

The Minister for Emergency Services, the Hon Jane Garrett MP, requested that I write to you regarding behavioural issues and increasing workforce diversity within the Country Fire Authority and the Metropolitan Fire and Emergency Services Board.
The government requests the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to undertake a review under section 151 of the Equal Opportunity Act 2010 (EOA) and section 41(c) of the Charter of Human Rights and Responsibilities Act 2006. This would include any relevant research in accordance with VEOHRC’s function under s 157 of the EOA.[15]

[15]Letter from Mr Greg Wilson, Secretary to the Department of Justice and Regulation to Ms Kate Jenkins, VEOHRC Commissioner, 9 December 2015.

The Commission then obtained approval from the Justice Human Research Ethics Committee to undertake the Review.[16]
[16]Transcript of proceedings, United Firefighters’ Union v VEOHRC & Anor (Supreme Court of Victoria, S CI 2017 02290, Ginnane J, 8 September 2017) 146.17 (‘T – 8 September 2017’), 98.8.

The response to the O’Byrne review

In March 2016, just over three months after the Government’s request to the Commission, the State Government released a document responding to the O’Byrne Review titled ‘Government Response to the Report of the Victorian Fire Services Review: Drawing a line, building stronger services’.[17] The Government accepted most of the twenty recommendations contained in the report, save for two, which were that the role of the CEO and Chief Officer of each entity be merged into a single position, and that the CFA’s and MFB’s boards be amalgamated.
[17]O’Byrne Review, above n 8.

The Government restated its admiration of the dedication and willingness of MFB and CFA members,[18] but was troubled by a number of findings relating to workplace relations and culture in the fire services. Its response stated:

...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 Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to conduct a review under s 151 of the Equal Opportunity Act 2010 and section 41(c) of the Charter of Human Rights and Responsibilities Act 2006. VEOHRC 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, VEOHRC 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 VEOHRC will provide a comprehensive report to the Government in the first half of 2017.[19]
[18]State Government of Victoria, ‘Government Response to the Report of the Victorian Fire Services Review: Drawing a ling, building stronger services’ (March 2016) (‘Government Response to the Fire Services Review’) 5.
[19]Ibid.

The Funding Agreement

I will next describe the Funding Agreement entered into by the Department and the Commission in about May 2016 for the conduct of the Review, because the question of whether there was any agreement that satisfied the requirements of s 151(1) of the Equal Opportunity Act 2010 (‘EO Act’) arises under the UFU’s first ground.

The Funding Agreement outlines the roles and responsibilities of the Department and the Commission in undertaking the Review of the MFB and CFA. It stated that the Commission would undertake the ‘Equity and Diversity Review of the Victorian Fire Services’ project, described in significant detail in an annexure. The Funding Agreement has many of the usual indicia of a contract, including providing for its term, a method for dispute resolution, and the terms of payment and termination. It provided for the applicable law, for indemnity insurances and for the disclosure of information. It was signed by the Secretary to the Department and by the Acting Commissioner of the Commission.

The Agreement set out the Commission’s proposed methodology for the conduct of the Review and annexed a more detailed ‘project proposal’. Specifically, it proposed that the Commission:

(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.

Memoranda of Understanding

Memoranda of Understandings (‘MOU’) were signed between the Commission and the MFB and the Commission and the CFA. The MOUs were almost identical and stated:

Parties
The Victorian Equal Opportunity and Human Rights Commission (ABN 23 158 288 152), (‘the Commission’ or ‘Us’ or ‘We’ or ‘Our’ as the case requires)
and
The Metropolitan Fire Brigade (ABN 28 598 558 561), (‘MFESB, ‘You’ or ‘Your’ as the case requires)
1. Background and purpose
1.1The Commission has been engaged by the Victorian Government to undertake an independent review into the Country Fire Authority (CFA) and the Metropolitan Fire Brigade (MFB), under sections 151 and 158 of the Equal Opportunity Act 2010 (Vic) and section 41(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Review).
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.
1.3The Memorandum of Understanding (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.

2.        Commencement and termination
2.1      This MOU comes into effect on the date it is last signed by the Parties.
2.2      This MOU terminates on completion of the Review.

3.        Provision of information and access by MFB
3.1      The 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.

3.2The MFB will facilitate the provision of this information and access to MFB Work Locations by arranging a senior liaison officer as the Commission’s dedicated contact for the Review. This person is set out in clause 7.
3.3 The MFB agrees to take all reasonable steps to ensure the timely delivery of the Information and facilitation of access to MFB Work Locations. If there is likely to be a delay, the MFESB will inform the Commission and work together to minimise any impact of the delay on the Review.
4.Confidentiality of Information
4.1The Parties acknowledge that certain types of information and data provided by MFB to the Commission under this MOU is given on a strictly confidential basis. This includes:
(a)staff email contact details;
(b) identifying information about individual members of its workforce; and
(c)any other information, data or documentation stored by any means and in any format, which is marked confidential or falls within a category identified by the MFB as strictly confidential and communicated as such to the Commission.
(Confidential information)

4.2The Review will be carried out by dedicated personnel (Review Team) with assistance from an Expert Panel and a Project Governance Group. The Review Team will sign a Deed of Confidentiality which will govern their legal obligations relating to use, disclosure, and reproduction of Confidential Information.
5.Protocols for Use of Information, including Confidential Information
5.1The Commission will only use the information (including Confidential Information) and data provided by the MFB under this MOU for the purposes of carrying out the Review. Any personal information will be de-identified before use in the Review report.
5.2 The Commission will ensure that all information and data provided by the MFB for the purposes of the Review, whether stored electronically or in hard copy, will be stored in a secure manner and accessible only to the Review Team or other Commission personnel as approved by the MFB.
5.3In the performance of the Review, the Commission will comply with the Privacy and Data Protection Act 2014 (Vic) and its Information Privacy Principles; and the Health Records Act 2001 (Vic) and its Health Privacy Principles.
5.4The Commission will comply with Australian Bureau of Statistics de-identification rules and Justice Human Research Ethics Committee approval.
5.5The Commission will send a copy of the final draft Review report to the MFB for an accuracy and privacy check.
6.Dispute Resolution
6.1The MFB and the Commission will commit to working on the Review in good faith and to resolve any issues or disputes in a timely manner, including by taking reasonable steps to meet and discuss any dispute that may arise.
…

The additional clause in the Commission-CFA MOU is 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.
…
6. Conflicts
6.1 The Parties agree that whilst the Review is underway, it would be inappropriate for the Commission to provide advice or other services which may later be subject to the Independent Review and audit processes, as this could be a conflict of interests.

The Review

By letter dated 14 June 2016, Ms Hilton, the Commissioner advised Mr Peter Marshall, the Secretary of the Victorian branch of the UFU, that the Commission would be conducting an Independent Review into the CFA and the MFB. After referring to the O’Byrne Review and the Government Response,[20] Ms Hilton wrote:
[20]Government Response to the Fire Services Review (March 2015).

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 Victorian’s Metropolitan Fire and Emergency Services Board (MFB) and the Country Fire Authority (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 Victorian Equal Opportunity and Human rights Commission (VEOHRC) 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 section 151 of the Equal Opportunity Act 2010 and section 41(c) of the Charter of Human Rights and Responsibilities Act 2006. This will include any relevant research under section 157 of the Equal Opportunity Act 2010. 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.
VEOHRC 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. VEOHRC 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 VEOHRC 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.[21]
…

[21]Letter from Commissioner Hilton to Mr Peter Marshall dated 14 June 2016.

The letter enclosed the review’s final Terms of Reference which were:

An Expert Panel, led by the Commissioner, Victorian Equal Opportunity and Human Rights Commission, will review, report and make recommendations on:
a. The nature and prevalence of discrimination,* sexual harassment and victimisation amongst Country Fire Authority (CFA) and Metropolitan Fire Brigade (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 Equal Opportunity Act amounts to discrimination under the Equal Opportunity Act.

On 26 July 2016, the Commission formally commenced the Review.

Online Survey

The Commission conducted an online survey titled the ‘Have Your Say Survey’. The survey was distributed via a URL link to an email sent to all staff and volunteers of the MFB and CFA from the Commission and was to be available after July 2016 until mid-December 2016. The CFA differed slightly from the MFB survey to allow participants to indicate the voluntary nature of their work.

Each question and page of the survey is headed with: ‘Equity and Diversity Review’ and it has four sections. Section one asks questions about the participant’s background information such as their age bracket, religion, religious identification, sexual orientation, language and country of birth and involvement with the CFA, such as, whether the participant is part of the executive, non-operational staff, operational staff, or a volunteer.

Section two is titled ‘Attitudes about safety and respect’ and asks the participant to rate their agreement with various statements on a scale of ‘strongly disagree’ to strongly agree’, such as, ‘I consistently feel safe in my workplace from discrimination, including bullying, and sexual harassment’.

Section three is titled ‘Discrimination’ and it asks questions specific to the participant’s experience of discrimination and sexual harassment. It explains discrimination is based on a provided list of attributes is unlawful under the EO Act and states that bullying ‘may fall within the definition of discrimination where it is unfavourable treatment because of a protected attribute, for example, racial abuse’. Participants are asked to respond ‘yes’, ‘no’, ‘don’t know’ or ‘prefer not to say’ to a series of questions, such as, ‘through your involvement with the CFA, have you experienced unwelcome suggestive comments or jokes, insults or taunts of a sexual nature, or intrusive questions or statements about your private life, of a sexual nature, that you found to be offensive humiliating or intimidating?’.

Section four is tilted ‘Share your thoughts’ and invites the participant to generally ‘have your say’ about their experiences and if there is anything they would like to change within the CFA related to the survey content. They could insert text to respond to this section.

UFU’s objections to the Review

During 2016, the UFU expressed its concerns about the Review to its members via two weekly bulletins, and to the Commissioner via two letters.

Bulletins

The first bulletin dated 11 July 2016 is headed: ‘Independent Review – Why the UFU is concerned about this Review’ and advises that ‘it is not in your interests to participate in the VEOHRC Review’. It outlined the UFUs concerns which span two pages and comprises the entirety of the bulletin, including that the source of authority for the Terms of Reference of the Review was not clear. It raises other concerns about, inter alia, the composition and role of the Commission’s Review Team, the role of the Expert Panel and the statutory foundation for the Review.[22]
[22]United Firefighters Union of Australia – Victoria Branch, ‘Bulletin 125 to All UFU Members’ (11 July 2016).

The second bulletin dated 26 July 2016 is headed: ‘Independent Review – Why the UFU is Concerned about this Review and believes it is not in your interests to participate’. It reiterates its concerns outlined in the first bulletin.[23]
[23]United Firefighters Union of Australia – Victoria Branch, ‘Bulletin 132 to All UFU Members’ (26 July 2016).

Correspondence between the UFU and the Commission

On 30 June 2016, Mr Marshall wrote to the Commissioner, Ms Hilton expressing concerns about the Review.[24] By letter dated 22 July 2016, the Commissioner responded to Mr Marshall stating that her response ‘seeks to provide clarity on issues that have been raised with us, including those in your letter dated 30 June 2016 and the official UFU Bulletins on Wednesday 6 July 2016 and Monday 11 July 2016’. The Commissioner denied the UFU’s accusation of the Commission’s impartiality or bias of the representatives undertaking the Review; explained the role of the Expert Panel for the Independent Review; explained how the Review Team were to perform their role; provided information about the Commission’s Project Governance Group established specifically to monitor progress and ensure accountability for achieving the aims of the project; explained the Commission’s approach to confidentiality and privacy in undertaking the Review; explained the Scope of the Review (whilst acknowledging that the scope was not directly raised with the Commission, but that it was ‘necessary to correct’ the UFU’s understanding of it); the education and training component of the VEOHRC; and the statutory purpose of the VEOHRC and its mandate under the EO Act.
[24]Letter from Mr Peter Marshall to Commissioner Kate Hilton (30 June 2016).

Fair Work Commission Proceedings

On 24 June 2017, the UFU applied to the Fair Work Commission for it to deal with a dispute in accordance with a dispute settlement procedures of the Fair Work Act 2009 and the ‘Country Fire Authority/United Firefighters Union Operational Staff Enterprise Agreement 2010’. The named respondent was the CFA. The dispute, in broad terms, was about the failure of the CFA to consult with the UFU about its decision to co-operate with the Commission and its failure to agree to cease that co-operation and a failure to consult about contemplated changes regarding diversity and workplace behaviour. The relief sought by the UFU was that the CFA cease all co-operation with the VEOHRC about the Review and consequential relief.

The UFU stated that Commissioner Wilson suggested that conciliation occur between the UFU, CFA and MFB, and that if the parties agreed to it, the Commission would also be invited to participate. By 10 June 2017, the UFU and the CFA had accepted that proposal but it was declined by the MFB and hence, it did not go ahead.

Following the failure for this dispute to resolve via the Fair Work Commission, on 10 June 2017, Ms T Sakkas of Davies lawyers, solicitors for the UFU, wrote to Commissioner Hilton stating three concerns it held about the Review: namely, that it was not properly constituted, that it was investigating matters beyond its powers, and that the Review’s methodology was seriously flawed and in that regard relied on a report by Professor Gordon.[25] The UFU requested that the Commission provide an undertaking that it would not publish the Review until it had considered and responded in writing to the UFU’s concerns.
[25]Letter from Ms Tonia Sakkas of Davies Lawyers to Commissioner Kristen Hilton (9 June 2017).

On 13 June 2017, the Commissioner responded to Ms Sakkas letter on by requesting that the UFU provide a copy of Professor Gordon’s report to ‘enable [the Commission] to properly consider the issues raised in relation to the survey methodology. Ms Sakkas provided the report by email dated 14 June 2017 and requested that the Commission respond to the matters raised in her letter by 4.00 pm that day.

This judicial review proceeding

On 15 June 2017, the UFU commenced this proceeding in the Practice Court of this Court. By then, the Commission had been conducting its review with the cooperation of the MFB and CFA for over 13 months. By the time of the hearing, the Review had not been completed in part because this Court proceeding was on foot.

I will next set out the legislation relevant to the establishment of the Review. There are two Acts of relevance and lengthy references are required to the relevant sections.

Anti-Discrimination and Human Rights Legislation
The Equal Opportunity Act 2010

The relevant purposes and objectives of the EO Act are:

1 Purposes
The main purposes of this Act are—
(a) to re-enact and extend the law relating to equal opportunity and protection against discrimination, sexual harassment and victimisation

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;
(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;

To achieve those purposes and objectives, the Commission is granted powers and functions including:

151 Commission may conduct a 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.

152 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 the Tribunal may consider an action plan if relevant to any matter before the Court or Tribunal under this Act.

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.

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.

The Act deals with human interaction in fields such as employment, in which unlawful discrimination on the basis of particular attributes is prohibited. Discrimination in employment and employment-related activities, such as employer hiring practices;[26] the giving of promotions;[27] and reasonably facilitating parental care responsibilities[28] is prohibited. Persons undertaking those activities are required to take reasonable and proportionate measures to eliminate that discrimination, sexual harassment and victimisation as far as possible.[29]
[26]EO Act s 16.
[27]Ibid s 18(a).
[28]Ibid s 19.
[29]Ibid ss 15(1) and (2).

The attributes upon which discrimination is rendered unlawful under the EO Act are contained in s 6 which states:

6         Attributes
The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4 –
(a)       age;
(b)       breastfeeding;
(c)       employment activity;
(d)      gender identity;
(e)       disability;
(f)       industrial activity;
(g)       lawful sexual activity;
(h)      marital status;
(i)        parental status or status as a carer;
(j)        physical features;
(k)       political belief or activity
(l)        pregnancy
(m)      race;
(n)      religious belief or activity;
(o)       sex;
(p)      sexual orientation;
(pa)     an expunged homosexual conviction; and
(q) personal association (whether as a relative or otherwise) with a person who is identified by reference of any of the above attributes.

The Charter of Human Rights and Responsibilities Act 2006

In addition to the Commission’s powers under the EO Act, the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) gives it powers to investigate public authorities’ adherence to human rights 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; and
(g)any other function conferred on the Commission under this Charter or any other Act.

The human rights to which the Charter is directed are set out in ss 8 – 27 and include equality before the law, the right to life, freedom from torture and forced work, freedom of movement, freedom of expression, freedom of religion and belief, privacy, freedom to take part in public life, freedom of culture, property rights, liberty and security, humane treatment when imprisoned and rights in criminal proceedings.

The Charter defines a public authority as follows:

4 What is a public authority?
(1) For the purposes of this Charter a public authority is—
(a)a public official within the meaning of the Public Administration Act 2004;
(b)an entity established by a statutory provision that has functions of a public nature; or
(c)an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

(d) Victoria Police; or
(e)a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act; or

(f) a Minister; or
(g)members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or

…
(2)In determining if a function is of a public nature the factors that may be taken into account include—
(a) that the function is conferred on the entity by or under a statutory provision;
(b) that the function is connected to or generally identified with functions of government;

(c) that the function is of a regulatory nature;
(d) that the entity is publicly funded to perform the function;

Control of fire services in Victoria

The prevention and suppression of fires in Victoria engages many individuals, authorities and organizations.

First is the Minister for Emergency Services who is the responsible Minister administering the Metropolitan Fire Brigades Act 1958 (Vic) (‘MFB Act’), the Country Fire Authority Act 1958 (Vic) (‘CFA Act’) and the Emergency Management Act 2013 (Vic) (‘EM Act’). Emergency Management Victoria (‘EMV’), which is a statutory corporation. reports to the Minister, either directly or through the Secretary to the Department, depending on the nature of the issue in question. The CFA and MFB hold regular meetings with the Minister. Although the Minister has the power to give them written directions, this rarely occurs; rather ministerial decisions are generally implemented without formal written direction.

The Secretary is a department head under s 12(1) of the Public Administration Act 2004 (Vic) (‘PA Act’). The Department of Justice and Regulation supports five ministerial portfolios, including the Minister for Emergency Services. Under s 13 of the PA Act, the Secretary, among other responsibilities is responsible to each of these Ministers for the ‘effective, efficient and economical management of the functions and activities of the Department’, including most relevantly the Ministry for Emergency Services. The Department comprises nine divisions, one of which is Emergency Management.

Fire Services Legislation

I will next describe relevant parts of the legislation that governs the fire services in Victoria and Emergency Management Victoria.

The Metropolitan Fire Brigade

Sections 6 of the MFB Act establishes the Metropolitan Fire and Emergency Services Board as a body corporate and s 7 states that its functions are to ‘provide for fire suppression and fire prevention services in the metropolitan district’.

Section 7 provides that the MFB must interact with EMV including by complying with standards developed by the EMV Commissioner,[30] reporting on its compliance with those standards,[31] and generally consulting and liaising with EMV in performing its functions and exercising its powers.[32]
[30]MFB Act s 7AC.
[31]Ibid s 7AD.
[32]MFB Act s 7AB.

The EM Act envisages a reformed, efficient and coordinated service delivery of emergency services in Victoria.[33] It is for this reason that interaction between the various emergency response units is mandated — a stated objective of the MFB is to contribute to a ‘whole of sector approach to emergency management’.[34]
[33]See, EM Act ss 5(a), (b)(i)-(iii).
[34]MFB Act s 7A(a).

In addition to the MFB’s reporting obligations to the EMV Commissioner, s 8 provides that ultimately the MFB is accountable to the Minister for Emergency Services insofar as the MFB is subject to the Minister’s ‘general direction and control… in the performance of its functions and powers’[35] and provides that the Minister may give written directions to the MFB.[36]
[35]Ibid s 8(1).
[36]Ibid s 8(2).

Section 36 obliges the MFB to provide the Minister with an annual budget to enable the Minister to determine its funding requirements payable from the Consolidated Fund and the fire services levy. The MFB can invest and borrow money pursuant to the Borrowing and Investment Powers Act 1987 (‘BIP Act’),[37] and those borrowings are guaranteed by the Government of Victoria.[38]
[37]Ibid s 46 and 51A.
[38]Ibid s 47A.

The Country Fire Authority

Similarly to the MFB, ss 6 (1) and (2) of the CFA Act establishes the CFA as a body corporate. It is responsible for the control of the prevention and suppression of fires within the country area of Victoria,[39] meaning that part of Victoria which lies outside the metropolitan district, but does not include any forest, national park or protected public land.[40]
[39]Ibid s 14.
[40]Ibid s 3(1) (Definitions).

Section 6A provides, in identical terms to the MFB’s legislation, that the CFA is responsible to the Minister and that the Minister can give it written directions. Sections 6C, 6D, 6DA and 6DB impose on the CFA similar adherence and reporting obligations as the MFB with respect to its compliance with various standards set by the EMV.

The CFA differs from the MFB in that is a primarily a volunteer-based organisation whose work is supported by employed staff.[41] Parliament recognises the Volunteer Charter of the CFA and the CFA Act requires it to exercise its functions with regard to the ‘commitment and principles set out’ in it.[42] Section 20 imposes a statutory duty on the CFA to take all necessary steps to prevent and suppress fires in country Victoria and it is obliged to assist in any major emergency.[43]
[41]CFA Act 6F.
[42]Ibid 6H.
[43]Ibid s 20AAA

The CFA also has to report its annual budget to the Minister and is funded by the Consolidated Fund and fire services levy.[44] It also can borrow money,[45] which again is guaranteed by the Victorian Government[46] and invest money in accordance with the BIP Act.[47]
[44]Ibid s 75.
[45]Ibid s 82.
[46]Ibid s 82A
[47]Ibid s 84A.

The Emergency Management Act 2013

The Emergency Management Act 2013 (‘EM Act’) is one of a number of Acts administered by the Minister for Emergency Services. Section 3 defines ‘fire emergency agency’ as the MFB, the CFA and the Secretary to the Department of Environment and Primary Industries. The EM Act includes ‘fires’ in its definition of an ‘emergency’ and separately defines a ‘major fire’. Section 5 outlines the objectives of the Act which are crucial to understanding the anticipated cooperation and coordination of the emergency response bodies in Victoria:

5 Objectives of Act
The objectives of this Act are to—
(a)foster a sustainable and efficient emergency management system that minimises the likelihood, effect and consequences of emergencies; and

(b)       establish efficient governance arrangements that —
(i)         clarify the roles and responsibilities of agencies; and
(ii)        facilitate cooperation between agencies; and
(iii) ensure the coordination of emergency management reform within the emergency management sector; and

(c)implement an ‘all hazards—all agencies’ approach based on networked arrangements and greater interoperability.

This Act establishes two bodies that govern the provision of emergency responses: Emergency Management Victoria and the ‘State Crisis and Resilience Council’ (‘SCRC’)[48].
[48]EM Act s 6.

EMV is a two-person body corporate consisting of the Emergency Management Commissioner and the Chief Executive of EMV,[49] the latter of whom holds the dual role of Deputy Secretary for Emergency Management in the Department of Justice and Regulation.[50] EMV is itself a division of the Department, and the Department is established by order of the Governor in Council and forms part of the public service of Victoria.[51]
[49]Ibid s 14.
[50]Ibid s 16.
[51]Public Administration Act 2004 s 4(1) (Definitions) ‘Public service body’.

The functions of EMV are, inter alia, to be ‘responsible for the coordination of the development of whole of government policy for emergency management in Victoria’ and to ‘implement emergency management reform initiatives given to EMV by the Minister’.[52] In October 2016, the EMV published a reform initiative titled ‘The Emergency Management Diversity and Inclusion Framework: Respect and Inclusion for All’.[53] This initiative recommends achieving diversity by having regard to expert reports from the field, and cites the Commission’s undertaking of the current Review as an example of such a report. [54]
[52]EM Act s 17(2)(a) and (c) respectively.
[53]Emergency Management Victoria, ‘The Emergency Management Diversity and Inclusion Framework: Respect and Inclusion for All’ (October 2016).
[54]Emergency Management Victoria, ‘The Emergency Management Diversity and Inclusion Framework: Respect and Inclusion for All’ (October 2016), 13 n 18.

The SCRC[55] is the peak emergency management advisory body responsible for providing advice to the Minister in relation to the whole of government policy and strategy for emergency management in Victoria and for the implementation of that policy and strategy.[56] The MFB and the CFA provide advice to the SCRC through the Chief Executive of EMV and the Emergency Management Commissioner.[57] The SCRC includes as members the Secretary to the Department of Justice and Regulation,[58] and the two members who comprise the EMV — the Chief Executive and the Emergency Management Commissioner.[59] These two individuals are responsible for advising the SCRC on behalf of the MFB and the CFA.[60]
[55]EM Act s 6.
[56]Ibid ss 6, 7(A).
[57]Ibid s 7(b).
[58]Ibid s 8.
[59]Ibid. The other members of the SCRC are the Department head of each Department, the Chief Commissioner of Police, the Inspector-General for Emergency Management as an observer and the CEO of the Municipal Association of Victoria as a representative of local government.
[60]EM Act s 8(7)(a) and (b).

Section 12(1) of the EM Act obligates the SCRC to develop a rolling three-year Strategic Action Plan (SAP) to be submitted to the Minister for approval. It must contain a work program for each agency, including steps that will enhance the agency’s operational capacity and capability.[61] Priority C of the current SAP which spans 2015-2018 aims for the development of ‘sector leadership that instils a positive workforce culture and promotes respect, cooperation, innovation and diversity’.
[61]Ibid s 12(4)(a).

The O’Byrne Review noted that Priority C of the SAP is mirrored by his recommendation that the fire services make a genuine public commitment to increasing diversity and to addressing various discriminatory practices or undesirable work cultures in the MFB and CFA. It was this very recommendation of the O’Byrne Review that the Government responded to in its March 2016 report by publicly stating that it had requested the Commission to conduct a review.

Ground One: The Review was not properly constituted

The UFU argued that the Review was not properly constituted under s 151 of the EO Act, or under s 41(c) of the Charter on three bases. I will outline each of these bases, the Secretary’s responses and my consideration of them, in turn.

1(a) Was there a valid request
1(a)(i) UFU’s submissions

It is common ground that the request for a review was made by the Secretary to the Department on behalf of the Minister for Emergency Services, Ms Jane Garrett, and the request was made for the Victorian Government. [62] The arguments proceed on this understanding.

The EO Act

[62]Letter from Mr Greg Wilson, Secretary to the Department of Justice and Regulation to Ms Kate Jenkins, VEOHRC Commissioner, 9 December 2015; and cl 1.1 of the MOUs between the Commission and the MFB and CFA respectively executed 3 June 2016 and 27 June 2016.

Section 151(1) provides that on the request of a ‘person’, the Commission may enter into agreement with that person to review ‘that persons program and practices’ to determine that person’s compliance with the Act. A person is defined in s 4 as ‘including an unincorporated association and, in relation to a natural person, means a person of any age’ and is otherwise left undefined. The proper construction of the EO Act reveals that the executive branch of the Victorian Government, the MFB and the CFA are not to be regarded as the same ‘person’.

The authorities recognise that statutory corporations formed to carry out public functions are to be considered distinct from the Crown unless Parliament has expressly given them the character of a ‘servant of the Crown’.[63] They are not emanations of the Crown. As Gibbs CJ stated in Townsville Hospital Board v Townsville City Council:

It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention.[64]

[63]Launceston Corporation v Hydro-Electric Commission (1959) 100 CLR 654 [662]; State Commission (Vic) v City of South Melbourne (1968) 118 CLR 504 [510]; Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282 [291].

[64]Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282 [291].

The attributes of the MFB mentioned above indicate Parliament’s intention for it to operate as an independent entity from government. To repeat them, the MFB has power to sell and purchase property;[65] it can acquire land;[66] can enter contracts;[67] has the power to employ staff;[68] has the power to borrow and invest money within the confines of the BIP Act; [69] and can repay loans to the executive arm of government — meaning the MFB is not the same legal personality as the executive.[70]
[65]MFB Act s 24.
[66]Ibid s 24A.
[67]Ibid s 25A.
[68]Ibid s 25B.
[69]Ibid s 46; s 51(a); T 56-57.
[70]Ibid s 47(1)(a)

The CFA Act gives similar powers to the CFA and also in s 6 details the role of volunteers within the organisation, which further separates it from the executive arm of government and indeed the MFB. Parliament has recognised the CFA’s voluntary Charter. The characteristics of the CFA similarly reveal its independence from the executive government. To repeat them: it is a body corporate capable of suit and being sued;[71]it has the power to employ staff;[72]it has the power to enter into contracts, with certain contracts requiring ministerial consent;[73] it can acquire land;[74]it has the power to set up brigades throughout Victoria;[75] it has the power to borrow funds[76]; and have those borrowings insured by the Government of Victoria .[77]
[71]Ibid s 6(2).
[72]Ibid s 17.
[73]Ibid s 20AA.
[74]Ibid s 21.
[75]Ibid s 23.
[76]Ibid s 82.
[77]Ibid s 82A(1).

The UFU submits that the power of ministerial direction contained in both Acts is not material to deciding whether the MFB and CFA have independence as statutory authorities.

For these reasons, the MFB and the CFA are to be regarded as separate from the executive branch of government and cannot be considered the same ‘person’ under the EO Act. Accordingly, the Commission received no valid request to conduct a review under s151(1).

The Charter

The UFU next submitted that the request for a review contained in the Secretary’s letter was not a request under s 41(c) of the Charter which as previously mentioned stated that the Commission can:

when requested by a public authority, to review that authority's programs and practices to determine their compatibility with human rights.[78]

[78]Charter s 41(c).

The Charter defines ‘public authority’ as ‘an entity established by a statutory provision that has functions of a public nature’.[79] The definition lists other examples of what is to be considered a ‘public authority’ under the Charter and includes Victoria Police,[80] a local government council,[81] a Minister[82] or a Parliamentary Committee.[83] The list of bodies contained in this section should be considered an exhaustive list.
[79]Ibid s 4(b).
[80]Ibid 4(1)(d).
[81]Ibid 4(1)(e).
[82]Ibid s 4(1)(f).
[83]Ibid s 4(1)(g).

The UFU submitted that the MFB and CFA are statutory corporations that clearly fall within the Charter’s definition of a ‘public authority’ as ‘an entity established by a statutory provision that has functions of a public nature’.[84] Consequently, the Review into the programs and practices of the MFB and CFA, was not requested by a ‘public authority… to review that authorities programs and practices’, because the request did not come from the public authority itself. The request therefore was not validly made under s 41(c).
[84]Ibid s4(1)(b).

The UFU also argued that if the Government desired that a review was to be conducted into either of these statutory bodies, then the Minister should have issued a written direction to them to do so.[85]
[85]MFB Act s 8(2) and CFA Act 6(A).

1(a)(ii) The Secretary’s submission
The EO Act

The Secretary referred to s 38 of the Interpretation of Legislation Act 1984, which provides that unless the contrary intention appears, a ‘person’ includes ‘a body politic or corporate as well as an individual’. He submitted that a ‘person’ in s 151(1) of the EO Act can be a body politic such as the executive branch of government.[86] The request for the review was made by the Secretary , on behalf of the body politic of the executive branch of the Government of Victoria and was therefore validly made.
[86]See M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 71 [44] (French CJ, Kiefel and Nettle JJ), 79 [73]-[74] (Bell J), 109 [177] Gageler J, 125 [246].

The programs and practices of the MFB and the CFA are the provision of fire and emergency services to the community, but were not specific to those organizations alone. The programs and practices being reviewed — the general provision of fire services, including the suppression and prevention of fire — are a core area of government activity and programs of a kind often delivered through statutory corporations. However emergency services are delivered, they are still central programs and practices of the executive branch of the Victorian Government.

Both the MFB and the CFA are subject to the general direction and control of the Minister in the performance of their functions and exercising their powers. The body of integrated legislation regulating the emergency services shows this to be the case. The Minister for Emergency Services is responsible for administering the MFB Act and the CFA Act. Emergency response activities do not operates as islands no matter that they operate through separate statutory corporations or in the case of the CFA through volunteers.

The Secretary also submitted that a valid request for a review under s 151 did not have to be made by the ‘duty holder’ of the obligations under the EO Act. In other words, a person who does not bear responsibility for ensuring the entity’s programs and practices comply with the Act can nevertheless request a Review provided they are that person’s programs and practices. In addition, the Charter permits a public authority, such as a Minister, to request a Review of another public authority over which it exercises some degree of control.

The Secretary submitted that the following features of the MFB and the CFA demonstrate that they do the work of government:

(a) they are both subject to the general direction and control of the Minister in the performance of its functions and the exercise of its powers;[87] and the Minister can give the MFB and the CFA written directions;[88]

(b) they are funded by government with public funds and must provide the Treasurer with an estimate of expenditure and revenue for the next financial year to be paid from the Consolidated Fund and from the fire services property levy imposed under the Fire Services Property Levy Act 2012 (which is itself paid into the Consolidated Fund); and[89]

(c) their borrowings are guaranteed by the Government of Victoria and a standing appropriation from the Consolidated Fund fulfils that guarantee.[90]

[87]MFB Act s 8(1); CFA Act s 6A(1).

[88]MFB Act s 8(2); CFA Act s 6A(2).

[89]MFB Act s 36(2) and 37; CFA Act ss 75(2) and 76; Fire Services Property Levy Act 2012 s 50; CB 672 [39].

[90]MFB Act s 47A; CFA Act s 82A.

The EM Act creates an umbrella under which all of Victoria’s emergency management agencies operate, including the MFB and the CFA. The individuals who deliver fire and emergency services, either paid or volunteer, provide the services themselves. It is not possible to excise some aspect of the MFB and CFA, such as employment practices, as the UFU does, from the delivery of fire and emergency services which are a service of government. As previously outlined, the programs and practices of the MFB and the CFA are the delivery of fire and emergency services, rather than for example human resources policies particular to those independent statutory corporations.

In addition to the MFB and the CFA, other bodies within the executive government of Victoria provide fire and emergency services to country areas in Victoria. The particular designated areas of state forests, national parks and protected public lands[91] are provided with fire services by the Secretary and Chief Fire Officer of the Department of Environment, Land, Water and Planning (DELWP).[92] This feature demonstrates that whether fire and emergency services are delivered by the MFB, the CFA or DELWP, they retain their essential character as programs and practices of the executive government of Victoria.
[91]Which are excluded from the ‘country area of Victoria;’ by s 3(1) of the CFA Act.
[92]Forests Act 1958 ss 29, 61A, 61B (Chief Fire Officer) and 62(2) (Secretary) respectively.

The question whether the MFB and the CFA are emanations of the Crown is not a relevant inquiry for the operation of s 151(1) of the EO Act. It does not answer the critical question of whether those programs and practices are within the scope of the executive action of government, regardless of the independence of the bodies carrying out those activities. The EO Act specifically states in section 5 that it binds the Crown.

The Charter

Applying similar reasoning, the Review was also properly constituted under s 41(c) of the Charter. Section 41 provides that the Commission’s functions in relation to the Charter include ‘when requested by a public authority, to review that authority’s programs and practices to determine their compatibility with human rights’.

Section 4 identifies what is a public authority for Charter purposes and lists the Secretary of the Department, and the Minister. The Commission agreed with the UFU that both the MFB and the CFA fall within the definition of a ‘public authority’ provided by the Charter under s 4(1)(b).[93]
[93]Charter s 4(1)(b).

The Secretary submits that the relevant programs and practices were not just those of the MFB and CFA, but are those of the executive government, for which the Minister, assisted by the Secretary, has responsibility. The Secretary’s request on behalf of the Government to the Commission is properly characterised as a request by a public authority to review that authority’s programs and practices to determine their compatibility with human rights.

The Secretary relied on the High Court’s decision in Deputy Commissioner of Taxation v State Bank (NSW)[94] which held that because the Constitution refers to the States and the Commonwealth as institutions of Government, it follows that these references are wide enough to include corporations as agencies or instrumentalities of the Commonwealth or States that assist in carrying out governmental functions. Some activities of government are indeed carried out through corporations. The provision of fire services is a governmental activity that can be delivered through statutory corporations but nonetheless those activities or functions can retain their governmental character. At least in modern times, the delivery of fire and emergency services is a governmental function.
[94]Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219.

The Secretary noted that the UFU had been a party in Federal Court litigation[95] about whether an enterprise agreement between the UFU and the CFA under the Fair Work Act 2009 (Cth) impaired the capacity of the State to function as a government and thereby infringed the Melbourne Corporation doctrine.[96] In that case, Murphy J stated that it is ‘uncontroversial that the CFA is an agency of the State of Victoria’.[97] That decision sat ‘uneasily’ with the UFU’s attempt to distance itself from the State in the present case.
[95](2014) 218 FCR 210; and (2015) 228 FCR 497.
[96]Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and Re Australian Education Union; Ex parte State of Victoria (1995) 184 CLR 188.
[97](2014) 218 FCR 210, 236 [103] (Murphy J).

1(a) Consideration of whether the Review was properly constituted

The first of the UFU’s grounds requires a decision about whether the Review was properly established or constituted. To answer that question requires a decision about 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.

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.[98]
[98]Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230.

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 EO 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 UFU 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.[99]

[99]Pitfield v Franki (1970) 123 CLR 448 at 458 – a decision based on a now discarded interpretation of the meaning of ‘industry’ see R v Coldham; Ex Parte Australian Social Welfare Union (1983) 153 CLR 297.

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

K M Hayne has recently written of the width of the executive power of government stating:

It is the Executive that must decide what policies should be pursued in the economic life of the nation (whether by promoting trade within or beyond Australia, or by ensuring the best economic environment for prosperous and sustainable growth) and in that multitude of matters that bear upon the general wellbeing of society.[100]

[100]Kenneth M Hayne, ‘Executive Power’ (2017) 28 Public Law Review 236, 245. The article addressed Commonwealth executive power, but the executive power of State Governments is equally wide see, eg, Egan v Chadwick(1996) 46 NSWLR 563 at 592 (Priestley JA).

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 EO 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.

I reach the same conclusion in respect of the powers conferred on the Commission by s 41(c) of the Charter. I also consider that the Secretary’s request engaged that power. That sub-section also focuses on a person’s programs and practices. The persons referred to are public authorities. The Minister is a public authority within the meaning of the Act, so is the Secretary. For the same reasons as I have given in respect of s 151, the MFB’s and CFA’s programs and practices are the State’s programs and practices. To apply the terms of s 41(c) to those conclusions, the Secretary on behalf of the Minister and the State Government requested the Commission to review the Government’s programs and practices delivered through the MFB and the CFA to determine their compatibility with human rights.

1(b) Was there a valid agreement under s 151 of the EO Act?
UFU’s submission

As part of its first ground, the UFU submitted that the Review was not properly established because there was no ‘agreement’ as required by s 151(1) about programs and practices to be reviewed.

The UFU submitted that MOUs entered into by the Commission and the MFB and CFA were not an ‘agreement’ because they deal with the limited issue of the supply of information by the organisations to the Commission. It contended that the ‘programs and practices’ of the MFB and CFA to be reviewed were not defined. This meant that the MOUs fell short of ‘an agreement with the person to review that person’s programs and practices…’, to use the language of s 151.

The UFU submitted that one can garner from the MOUs that the programs and practices that the Commission were reviewing were the employment, recruitment, and personnel and disciplinary programs of the MFB and CFA respectively (‘employment and human resource practices’). It submitted that the employment and human resource practices of the MFB and CFA do not constitute the programs and practices of the executive branch of government, because they were specific to the MFB and CFA. Therefore, the MOUs were not capable of satisfying the requirement in s 151(1) for an agreement and there was no valid review under that subsection.

The UFU also submitted that the Funding Agreement made between the Department of Justice and the Commission was not an agreement within s 151(1), even if the Government’s request for the review was found otherwise to be valid. The Funding Agreement was only directed at ensuring that the Department paid the Commission’s costs of the Review.

The Secretary’s submission

The Secretary submitted that no agreement between the Commission and the MFB and CFA was required for a valid review to be constituted as the executive branch of government through the Minister had authority to request a review.

In any event, the MOUs entered into by the Commission and the CFA and the MFB were sufficient to satisfy s 151’s requirement that there be an ‘agreement’. The MOUs stated that the MFB and the CFA would provide the Commission with all the information and access to their work locations required to enable the Commission to conduct the Review. Secondly, the Funding Agreement canvassed issues additional to the mere financing of the Review.[101] It addressed the conduct of the Review itself and is precisely the kind of agreement contemplated by s 151(1).
[101]See Funding Agreement between the Department of Justice and Regulation and the VEOHRC, Annexure A: Project Proposal: Equity and diversity review of the Victorian Fire Services, 1-16.

Section 151(1A) provides for the Commission and the person making the request to enter into a funding agreement for the Commission’s costs. The Commission entered into such an agreement with the Department of Justice and Regulation, which is part of the executive branch of Government. Annexure A of this Agreement is titled Project Proposal and attaches draft Terms of Reference. The only other Annexure is B, which contains the Funding Proposal. The annexed draft Terms of Reference were identical to the Review’s final Terms of Reference. The project detailed in the Funding Agreement was a review of the kind contemplated in s 151(1). The project concerned the programs and practices of a ‘person’, in this case the Government, concerning the fire and emergency services that are delivered through the MFB and the CFA. Those services are delivered for executive government of Victoria.

1(b) Consideration of whether there was an agreement under s 151 of the EO Act

The second issue raised in respect of s 151 was whether there was an agreement between the Secretary and the Commission.

In my opinion, the Funding Agreement was an agreement that satisfied the requirements of s 151. It 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. It was signed by the Secretary and the Commissioner. Despite its title ‘Funding Agreement’, it is a comprehensive agreement that outlined the project to be performed and the activities to be undertaken. These included a confidential online survey/portal offered to 100 per cent of current paid and unpaid personnel, focus groups, optional confidential interviews, conduct data analysis (including workforce data and incident data), observation of a selection of work places and conduct of a legislation and policy review. Additionally, paragraph 2 of the Agreement titled ‘Role and Responsibilities of VEOHRC’ states that ‘VEOHRC will undertake the project as set out in the project proposal at Annexure A’. Annexure A extends over fifteen pages giving considerable detail about the execution of these tasks.

I do not accept the UFU’s submission that the agreement must define the programs and practices that are to be subject of the Review. That would be to read into s 151(1) a requirement that is not there. The words of the section clearly state that there must be an agreement. I consider that an agreement under s 151(1) must sufficiently describe how the review will achieve the purpose of satisfying its statutorily defined task, that of determining the compliance of that person’s programs and practices with the EO Act.

If the agreement identifies activities that will enable the Commission to review and report on whether there has been compliance with the EO 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).

The UFU relied on the evidence of Professor I Gordon about flaws in the survey. He is the Professor of Statistics and the Director of the Statistical Consulting Centre at the University of Melbourne On 14 June 2017, the UFU provided Professor Gordon’s report to the Commission, and the Commissioner responded rejecting his criticisms.

Professor Gordon was commissioned by the UFU to comment on the reliability of the survey and whether it would produce credible data. There were two design flaws, which in his opinion, rendered the survey data unreliable.

First, although the survey does ask the participant to state their involvement with the CFA, it could not verify whether the participant was actually affiliated with the organisation. Any individual with a link to the survey could complete it. The population of interest under the survey appeared to be ‘all current personnel’ in the CFA. A link to frequently asked questions and in answer to the first question: ‘who can take part?’ the provided response is ‘the Independent Review includes all current MFB and CFA personnel, including volunteers as well as former employees and volunteers who left in, or after, 2010’. This imprecision in identifying the survey population was problematic. It should simply have asked, ‘Are you currently a member of the CFA?’, and if the answer was no, the survey should self-exit. The survey’s questions about CFA involvement come after a set of demographic questions. There was no attempt to take a random sample from a sample frame. The invitation to participate was broad and unspecific and in this sense the survey was census-like; however, it falls short of a well-constructed census. The consequence of having no sample frame and vague descriptions of the target population was that the actual respondents may not come from the population of interest. There was no way to determine how many individuals within the vaguely defined target population participated.

Secondly, the most critical issue was the way in which the survey was administered. The email sent to potential participants with the link to the survey could be forwarded to anyone and the same person could complete it many times. In addition, the survey did not close on 18 December 2016 as stated. Professor Gordon accessed the survey four times, once after the close-off date. Accordingly, Professor Gordon considered that the survey would not accurately estimate the prevalence of the undesirable behaviours.

Additionally, Professor Gordon considered that other features of the survey were not conducive to obtaining accurate responses. Sensitive questions of religion and sexual orientation arose, to use his words, ‘somewhat unexpectedly’ at the end of the first section of the survey on ‘background demographic information, as well as information on your role with the organisation’.[117] The ‘prefer not to say’ section does not alleviate the existence of the questions which is in itself ‘problematic’. Accordingly, the main explanation provided at the beginning of the first section which states ‘Providing this information will help us tell how widespread the issues are, and who is affected’ places people who are sensitive to these questions in ‘a difficult position’. Professor Gordon states that ‘more information should have been given on the reason for asking these questions’ and this demonstrates insufficient sensitivity. He considered that the survey title ‘Equity and Diversity Review (CFA)’ ‘is not going to help them much’. He considered that people pay scant attention to preliminary contextual information.
[117]Report of Professor Gordon, ‘Comment on a Survey by the Victorian Equal Opportunity Commission’ (21 April 2017), Exhibit IG 1 to affidavit of Prof Gordon sworn 4 September 2017, 7.

The Secretary’s evidence concerning Ground Three

Two witnesses gave evidence on behalf of the Secretary in respect of the third ground: Ms Sally Reid and Dr Emma Fulu.

Ms Reid’s evidence

Ms Reid was the Commission’s Independent Review Manager and part of the Independent Review team. She is now the manager of the Education Justice Initiative of the Department of Education, Employment and Training. She was previously employed by the Commission as Principal Adviser within its Policy and Research unit. She has held various positions within the Commission including acting manager of the Strategic Projects and Policy Unit in 2015 and 2016 and Assistant Manager of the Strategic Projects and Policy Unit for three months in 2015. Ms Reid holds a bachelor of Arts with honours and a master of arts degree in criminology from the University of Melbourne, both with first class honours. She has received an Australian Post Graduate research award and is a Churchill Fellow.

Ms Reid’s work in connection with the Review involved identifying the workforce data the Review would need from the CFA and the MFB and, where appropriate, she drew conclusions in relation to the Independent Review’s Terms of Reference. She also participated in the design of the survey instruments; and contributed to the ethics approval processes required to undertake the Independent Review. She ceased working on the survey in June 2016 just prior to its launch.

Ms Reid said that the purpose of the survey, as its name suggests (‘HYS Survey: Have Your Say Survey’), was to provide the employees and volunteers of the MFB and CFA an opportunity to ventilate their experience of discrimination and sexual harassment. The responses were not intended to establish the occurrence of discrimination in the legal meaning, but at most, indicate whether participants had seen or experienced what might be considered discrimination or sexual harassment.

The first of the Review’s Terms of Reference required the Commission to review, report and make recommendations on ‘the nature and prevalence of discrimination, sexual harassment and victimisation’. Ms Reid’s evidence established that the survey data was not intended to make population-wide level conclusions about the prevalence of particular behaviours across the organisations. She agreed that if she were writing the Review report, she would make it clear that the survey measured the prevalence of behaviours among respondents only, rather than prevalence at a population-wide level. But, she said that there were many other data sources, including submissions, workforce data, complaints data, site visits and interviews that the Commission would have to enable it to respond to the first Term of Reference by indicating the prevalence of the specified behaviour at a population-wide level.

Ms Reid understood that by the term ‘prevalence’ the Commission was seeking to find out whether the behaviours were at every level, in every workplace, on every site. It was seeking an understanding broadly of a lay person’s definition of ‘prevalence’, not a mathematical statistician’s definition.

To discern the general occurrence of a particular behaviour, Ms Reid considered that the reviewer should hear from different people in different positions, conduct expert interviews, analyse the survey results and any cross-correlations of survey results within particular groups and find out whether any behaviour pattern exists among particular ranks or demographic. She stated:

altogether, these datasets would give you a sense of prevalence. They won’t give you a statistic on prevalence that you can apply to the CFA and the MFB, but that’s not how social research necessarily works.[118]

[118]T – 23 November 2017, 277.6-17.

Ms Reid said that the Commission’s paramount consideration in designing the survey was the safety and confidentiality of the participants to whom the Commission owed ethical obligations. Confidentiality ensured that the Commission obtained qualitative participation as the respondents provided candid and open feedback. However, the confidentiality requirement limited the data that would be obtained but that could be met by appropriate qualifications being included in the conclusions.

Ms Reid agreed during oral evidence that the survey contained broad questions, for example under the heading ‘attitudes about safety and respect’ questions asked responses to the statements: ‘I consistently feel safe’; ‘I’m consistently treated with respect’; ‘I often feel stressed’; ‘I feel included’ and ‘bullying’. She also agreed that an affirmative response to the propositions about stress might have number of causes including cause outside the Review’s ambit. But she said that discrimination and sexual harassment often form part of a continuum of behaviours and the survey’s task was to build a ‘bigger picture’ in order to obtain a sense of any alignment between the feeling of stress and work experiences including for example experiences of sexual harassment. She imagined that the Review would state that answers to particular questions or propositions were not confined to experiences based on protected attributes under the EO Act.

Ms Reid disagreed with the proposition that ‘there was no documentation [of the Commission’s understanding] of the programs and practices of the CFA and the MFB’. Ms Reid did not agree. She believed the MFB and CFA would have provided details of the relevant policies and procedures to the Commission, and that she remembered making such a request.

Ms Reid gave evidence, particularly in cross-examination, about the Commission’s ‘Independent Review into sex discrimination and sexual harassment, including predatory behaviour in Victoria Police (‘Police Review’) for which she had conducted interviews, made site visits and written chapters. Although she was not involved in the design of the survey that was conducted as part of that Review, she was aware that its methodology was similar to the current Review.

With limited exceptions, Ms Reid did not agree that the Police Review Report mislead the public as to the prevalence of discrimination within the police force because it did not make clear that some of its statistics referred to data only obtained from the survey, rather than from all employees. Ms Reid attributed the inaccurate reporting of the Police Review to the media’s desire to simplify messages for headline purposes rather than the language of the Review.

Dr Fulu’s evidence

Dr E Fulu has a Bachelor of Economics and Commerce and a Bachelor of Arts from the University of Melbourne. She has completed an honours year in Development Studies at the Australian National University. She was awarded a PhD from the University of Melbourne in 2009, writing her thesis on intimate partner violence in the Maldives, and the influence of Islam and globalisation. Dr Fulu worked for about five years with prevention of violence against women and girls. She then established the Equal Research Pty Ltd (‘Equality Institute’), which undertakes research projects with other organisations.

In May 2016, the Commission engaged the Equality Institute to provide assistance with refining, administering and analysing the results of the Commission’s online survey. Dr Fulu gave evidence that the Equality Institute was asked to investigate experiences of personnel of potential experiences of harassment, discrimination and other workplace experiences in relation to the attributes protected under the Equal Opportunity Act. The Equality Institute was not asked to do a prevalence study, and the survey that the Review conducted was not intended to provide prevalence data on discrimination or sexual harassment. Rather, the survey’s purpose was to gain a better understanding of individuals’ experiences of discrimination and sexual harassment within the MFB and CFA, by providing all personnel with an opportunity to share their experiences. This form of survey is described as a ‘have your say’ survey and is an effective means of gathering information when used with other sources or data, such as qualitative research. A different methodology would have been required for a prevalence survey, such as a survey of a randomised sample of the population in question or a census.

Dr Fulu understood that the confidentiality and anonymity of survey responses was a fundamental requirement of the Commission. Respondents were not to fear harm from disclosing their experiences. She gave evidence that prioritising the anonymity of respondents was consistent with published research and good practice in this field. But, the confidentiality priority required that the survey be conducted by an online open access platform that the same person could complete many times by the same person. To facilitate anonymity, the survey did not collect identifying information or place restrictions on multiple submissions by obtaining or recording IP addresses. Commonly available technology could not prevent the possibility of multiple entries If participants were to remain confidential.

Dr Fulu admitted that it was theoretically possible that one person could complete the survey multiple times, that if this occurred the resulting data would be unreliable, but that occurrences of this could not be identified. However, experience suggested that only a small number of people would do this and that gendered violence was generally under-reported.

UFU Submissions on Ground Three

The UFU argued that the flaws in the methodology of the survey were so serious that the information gained would be unreliable and the Commission’s use of the information will be legally unreasonable.

To establish these propositions, the UFU relied on Professor Gordon’s unchallenged evidence that the survey was flawed and pointed to particular features. First, the Police Review did not make sufficiently clear which statistics referred to prevalence of a specific behaviour amongst survey respondents vis-à-vis the prevalence of that behaviour amongst the police force at large and this approach leads to the public being misled. The media articles about the Police Review established that the Commission had misstated the results.

Second, as the survey could be completed many times by the one person, it would be unreasonable in the legal sense to rely on it. There was a likelihood of one person completing the survey more than once as the organisation and management of the fire services is an issue of deep-seated political conflict, including party political dispute. The UFU submitted that ‘large number of protagonists’ in this dispute, namely, ‘political parties and members of political parties’ have an interest in manipulating the data and the Victorian opposition parties having said that they will ‘call for a Royal Commission into the fire services’.[119]
[119]T – 23 November 2017, 313.20-31.

Third, the UFU submitted that the Commission is unwilling to change its approach to the use of the survey data despite the valid criticisms that it had made of the survey methodology.

The Secretary’s submissions
Legal unreasonableness

The principles governing legal unreasonableness, following the High Court’s decision in Minister for Immigration and Citizenship v Li (Li)[120] were usefully distilled by the Full Federal Court in Minister for Immigration and Border Protection v Eden (‘Eden’)[121] to which the Secretary referred. Those principles include the following:
[120](2013) 249 CLR 332.
[121][2016] FCAFC 28 [63] (Allsop CJ, Griffiths and Wigney JJ).

(a) The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under guise of an evaluation of the decision’s unreasonableness, or the Court in substituting its own view as to how the decision should be exercised for that of the decision-maker.[122]
[122]Eden [2016] FCAFC 28 [59].

(b) There are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an ‘outcome focused’ conclusion without any specific jurisdictional error being identified.[123]
[123]Ibid [60].

(c) In assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of ‘decisional freedom’ within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the existence of the power.[124]

(d) In order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal unreasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependent and to require careful attention to the evidence.[125]

(e) The evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisation or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textual formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decision that exceed the limits and boundaries of statutory power. Such expression have included decisions which are ‘plainly unjust’, ‘arbitrary’, ‘capricious’, ‘irrational’, ‘lacking in evident or intelligible justification’ and ‘obviously disproportionate’. However, the task is not a priori definitional exercise, nor does it involve a ‘checklist’ exercise. Rather, it involves the Court evaluation the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities’ such that it falls outside the range of lawful outcomes.[126]

[124]Ibid [62].

[125]Ibid [63].

[126]Ibid [65].

Applying those principles, the Secretary submitted that the Commission has not made any legally unreasonable decision, and the UFU’s third ground must fail. This ground necessarily involves an attempt to deploy the concept of legal unreasonableness in the second of the two contexts referred to in Eden’s case[127], namely as part of an ‘outcome focused’ conclusion without any specific jurisdictional error being identified. No other characterisation of the UFU’s application is possible: ground three does not identify any specific jurisdictional error. This is the first reason the third ground must fail at the threshold. There is no outcome upon which the concept of legal unreasonableness could operate. The Commission has not published any report or any results of any survey or any analysis of those results.
[127]Ibid.

Next, the Secretary submitted that the UFU’s submission attempts to sidestep this problem by contending that there have been two anterior decisions that are legally unreasonable: a decision to commission and conduct the survey taken pursuant to s 157(1) of the EO Act, and a decision to analyse the information and data obtained by the survey taken pursuant to s 157(2). This contention is entirely at odds with the UFU's submission, in its first ground that the review was not supported by s 157 of the EO Act. Moreover, the evidence did not disclose any statutory basis for the survey; it is a matter of conjecture whether the survey was undertaken by the Commission in the exercise of its research power under s 157, alone or with other provisions of the EO Act, or its general power to ask questions.

Once the UFU's challenge was confined in this way, a second reason was revealed as to why the third ground could not succeed: even if the asserted decisions were found to be legally unreasonable, this could not justify the relief sought by the UFU, which consists of orders permanently restraining the conduct of the entire review and the publication of any report arising from it. The survey is only one of a number of sources of information for the review. The evidence and submissions advanced by the UFU in support of the third ground disclose no basis for a conclusion that the entire review is legally unreasonable, or that any report arising from the review will be legally unreasonable.

The Secretary also submitted that consistently with Eden’s case[128], the powers conferred on the Commission by the EO Act carry with them an area of decisional freedom, within which it has a genuinely free discretion which may lead to a range of lawful outcomes. The subject matter, scope and purpose of the Commission’s statutory powers, as explored in relation to ss 157(1) and (2) above are large. It does not prescribe the manner in which the Commission is to undertake research, or to collect and analyse information.
[128]Ibid.

Again, the objectives previously outlined in s 3 of the EO Act are themselves extremely broad. In addition, the Commission required no statutory authority to conduct the survey.

In any event, the Commission’s decisions were not unreasonable for the reasons outlined by the UFU. First, it was reasonable for the Commission to prioritise confidentiality, consistent with the evidence of best practice and within the confines of the Commission’s task from government. Secondly, the UFU’s contentions based on Professor Gordon’s evidence fundamentally misconceived the survey’s purpose. It was not intended to produce representative data of the prevalence of specific behaviours. Thirdly, there is no evidence that the surveys were completed multiple times by the same person. The theoretical risks that someone might do so were outweighed by the need to ensure the safety, confidentiality and anonymity of participants. Fourthly, any limitations in the data can be taken into account in the reporting of the data. Fifthly, it is no criticism of the current survey, that a hypothetical alternative survey of the kind suggested by the UFU or Professor Gordon would produce more reliable data or compatible with the exercise of the Commission’s powers and within its budgetary and technological restrictions. Sixthly, Professor Gordon’s criticisms of the wording and framing of certain questions did not establish legal unreasonableness. Dr Fulu had explained the rationale for the design of the survey, including that it followed international best practice.

Finally, the ‘Have your say survey’ was one of the range of data sources obtained by the Commission. Any comments made about the data from the surveys would refer to the proportion of responses raising particular issues compared to the total proportion of responses. In the design of the surveys the paramount consideration for the Commission was the safety and confidentiality of the participants.

Consideration of ground three

I do not consider that the UFU’s criticisms of the survey establish the unreasonableness ground on which it relies.

The first and obvious point is that, at present, there is no indication of how the survey data will be used by the Review or reported by it. There is as yet no outcome. The criticisms of the previous Police Review cannot establish what may occur in the present Review or that any use of the survey data will be unreasonable. To conclude otherwise is to speculate. The Review has other sources of information available to it in addition to the survey data.

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 EO 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.

Although, there is no evidence that the survey was completed by the same persons on more than one occasion, I accept that that possibility exists, but no hypothetical alternative survey had been suggested that might produce more reliable data. Workplace conduct and associated issues within the fire services are contentious political and public issues. But, it was open to the Commission to decide that confidentiality took precedence over concerns that a respondent, including politically-motivated persons, could complete the survey more than once.

Should the number of responses to the survey outnumber the staff or volunteer numbers in either the MFB or the CFA, the Commission would be expected to be alert to such manipulation.

Remedies – The issue of UFU’s Delay

Despite the fact that I have not accepted the grounds of the UFU’s application, for the sake of completeness, I will consider whether the UFU’s delay in bringing this proceeding would have in any event have disentitled it from obtaining judicial review remedies. The UFU explained its delay in bringing proceedings. Mr Murphy, a UFU industrial officer, gave evidence that the UFU sought legal advice with respect to the legal foundation for the Commission's Review on or around 6 July 2016. Ms Krouskos, holding a similar position, gave similar evidence. The UFU recited these concerns in its weekly bulletins of 6 July 2016 and 11 July 2016 that were pinned to noticeboards in each fire station, emailed to all members, and posted on the UFU website.

The advice received from the UFU’s solicitor and from another experienced solicitor was that there was no basis to doubt the authority of the Commission to conduct the Review. Mr Murphy's evidence was that further advice was not sought by the UFU until July 2017 due to 'workload pressures'[129] and 'other matters going on at the time'.[130]
[129]T – 23 November 2017, 197.28.
[130]Ibid 197.20.

In the New Year, the UFU received new advice, and on this basis, it made an application in March 2017 to the Fair Work Commission involving the MFB and the CFA seeking relief that would have stopped their cooperation with the Review. On 7 June 2017, a hearing occurred before Commissioner Wilson who proposed mediation between the parties. The MFB chose not to participate. In the meantime, on 10 June 2017, the UFU wrote to the Commission providing it with Professor Gordon's advice and outlining its concerns, to which the Commissioner responded in detail. As a last resort, the UFU instituted proceedings on 15 June 2017. The UFU’s argument is that this narrative demonstrates no unreasonable delay. The Commission knew of the UFU’s objections.

The Secretary submitted that the discretionary relief sought by the UFU should be refused on the basis of the UFU's delay. He contended that had the UFU's doubts regarding the statutory foundation been legally raised by it back in July 2016, then the whole process could have been regularised, for example, by requesting that the Minister provide written directions to the MFB and CFA to request the Commission to conduct the Review.

Discretion to refuse remedies due to delay

Remedies in judicial review proceedings, even where the grounds have been satisfactorily established, are discretionary. Discretionary relief may be refused where the ‘conduct of the party is inconsistent with the application of relief’.[131]
[131]SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, 322 [80] (McHugh J).

The presence of delay is a factor the Court will consider in the exercise of its discretion, but in a case where such declaratory relief would provide a just and practical resolution of the dispute between the parties, mere delay in commencing proceedings is unlikely to persuade the Court to refuse to grant relief. Such a case was the decision in Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury where Walton P decided that a delay of 11 months by the moving party was insufficient to warrant the refusal of a declaration where such relief would serve the purpose of determining future as well as historical rights.[132]
[132]Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWIRComm 23 (Walton P), [242]-[246].

Delay, of course, may bring about circumstances that make the granting of relief inappropriate. As an order of prohibition must relate to future-conduct, sufficient delay will leave no actions left to prohibit. Likewise, declarations will only be made if there is real utility in their issue, significant delay may in some cases mean that events have moved on and the court cannot be persuaded of the utility of such an order.

From the time the Commission wrote to the UFU notifying them of the Review and providing a copy of the Review’s Terms of Reference to the commencement of the UFU’s formal challenge in this Court, some 12 months had elapsed, by which time considerable time and effort had been expended in the conduct of the Review. The UFU had raised in correspondence with the Commission its concerns about the Review in late June 2016.

Conclusion about delay

I accept that delay in commencing action could in particular cases provide a basis for the refusal of declaratory relief. However, I am not persuaded this is such a case. Assuming for present purposes that the UFU’s grounds had been established, a declaration of the kind sought by it would be appropriate and of real practical utility. In those circumstances, the UFU’s delay in commencing their action would not have been sufficient cause to refuse the declarations sought. It made its objection to the Review known at an early point.

Overall conclusion

None of the grounds having been established, this proceeding is dismissed.

[2017] VSC 773

15 December 2017