Westwood and Human Rights and Equal Opportunity Commission

[2002] AATA 706

DECISION AND REASONS FOR DECISION [2002] AATA 706

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2002/851
GENERAL ADMINISTRATIVE DIVISION
  Re:         Pamela Westwood
  Applicant
  And:       Human Rights and Equal
  Opportunity Commission
  Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             16 July 2002
Place:            Sydney

Decision:For reasons given orally at the hearing, the Tribunal determined that the decision to which the application relates, was not reviewable by the Tribunal. The application is therefore dismissed for want of jurisdiction under s.42A(4) of the Administrative Appeals Tribunal Act 1975.

These written reasons have been furnished at the Applicant's request dated 3 August 2002.

………………………
  Mr P. J. Lindsay
  Senior Member
CATCHWORDS
Review of "decision" - Human Rights and Equal Opportunity Commission - no jurisdiction - application dismissed

Administrative Appeals Tribunal Act 1975 s.42A
Sex Discrimination Act 1984 ss.14, 44, 45 and 93
Human Rights and Equal Opportunity Commission Act 1986 s.11

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

1. This is an application by Pamela Westwood, the Applicant, for a review of a decision made by the Human Rights and Equal Opportunity Commission ("the Commission").

2. There was a hearing to determine whether the Tribunal had jurisdiction in relation to the decision to which the application relates. The hearing was conducted over the telephone. The Applicant was not represented.  The Commission was represented by Ms N. Sheard, solicitor.
   background

3. In her letter to the Tribunal that was received on 5 July 2002, the Applicant claimed that the Commission has failed to "investigate that either fraud or major incompetence occurred in the carriage of my complaint H89/26."

4. The reference to complaint H89/26 is a reference to a complaint made by the Applicant to the Commission in 1988. The complaint involved an allegation of sexual harassment.

5. The hearing of complaint H89/26 extended over ten days in late 1990 and early 1991. In the event, the Commission found that the complainant failed to establish that she had been discriminated against on the ground of sex within the terms of s.14 of the Sex Discrimination Act 1984 (the Act).   The Applicant told the Tribunal that, after the decision, she was advised by Legal Aid that any appeal against the Commissioner's decision would be expensive and would require her to convince the Federal Court that she had been denied natural justice.  As she lacked the necessary financial resources, she did not pursue such an appeal.

6. The application before the Tribunal described the relevant decision to be reviewed by attaching a copy of a letter dated 10 May 2001 from the Commission to the Applicant and a letter to her dated 10 August 2001 from the Australian Federal Police (the AFP). The Commission's letter reads as follows:

   Dear Ms Westwood
   I refer to your e-mail to Professor Tay of 26 March 2001.
   You advise that "I have not received any correspondence concerning my recent complaint made to HREOC under s.93 of the SDA 1984."
   Section 93 of the Act creates a criminal penalty for providing false or misleading information to the Commission. This is a matter for which the Australian Federal Police has responsibility. Accordingly, you may wish to contact them in relation to that matter.

1. The AFP's letter advised the Applicant that her complaint about false or misleading statements made to the Commission was outside its operational priorities and unfortunately, the AFP was unable to allocate resources for the investigation.

2. The Applicant told the Tribunal that she was concerned that she has complained to the Commission about false statements made to it but that no one will accept responsibility to pursue the matter.  She said she wanted the Tribunal to review the Commission's decision that was communicated to her by its letter dated 10 May 2001.
   issue

3. Does the Tribunal have jurisdiction to review the decision in question, being the decision made by the Commission on 10 May 2001 that the Commission could not take action in relation to false or misleading information given to the Commission when hearing the complaint H89/26?
   consideration and findings

4. Ms Sheard submitted that the Commission's letter of 10 May 2001 merely provided information and was not a "decision". Even if that communication constituted a decision, she submitted that the Tribunal did not have jurisdiction to review the decision. Ms Sheard referred to s.45 of the Act, pursuant to which the Tribunal has jurisdiction to review certain decisions made by the Commission, specifically those made under s.44 of the Act. Section 44 provides:

   Commission may grant exemptions
   (1) The Commission may, on application by:
   (a) a person, on that person's own behalf or on behalf of that person and another person or other persons;
   (b) 2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or
   (c) a person or persons included in a class of persons on behalf of the persons included in that class of persons;
   by instrument in writing, grant to the person, persons or class of persons, as the case may be, an exemption from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e), or paragraph 41B(1)(b), as specified in the instrument.
   (2) The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2, or paragraph 41(1)(e), has been granted under subsection (1), being an application made before the expiration of the period for which that exemption was granted, grant a further exemption from the operation of that provision.
   (3) An exemption, or further exemption, from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e) or paragraph 41B(1)(b):
   (a) may be granted subject to such terms and conditions as are specified in the instrument;
   (b) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and
   (c) shall be granted for a specified period not exceeding 5 years.

1. The Tribunal is satisfied that the communication made by the Commission in its letter of 10 May 2001 is not a decision of the kind referred to in s.44 of the Act.

2. The Applicant referred the Tribunal also to s.93 of the Act, which at relevant times provided that:

   False or misleading information

   A person shall not furnish information or make a statement to the Commission, to the Commissioner or to any other person exercising powers or performing functions under this Act, knowing that the information or statement is false or misleading in a material particular.
    Penalty:
     (a) in the case of a natural person - $2,500 or imprisonment for 3 months, or
   both; or
    (b) in the case of a body corporate - $10,000.

1. But the Act does not give the Tribunal jurisdiction to review decisions made in relation to pursuing matters of the kind dealt with in s.93. Accordingly, the Tribunal is satisfied that the Commission's communication to the Applicant dated 10 May 2001 was not a reviewable decision.

2. In addition, the Applicant referred to the powers given to the Commission under ss.11(1)(aa) and 11(1)(f) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) which state:

   Functions of Commission
   (1) The functions of the Commission are:
   …
   (aa) to inquire into, and attempt to conciliate, complaints of unlawful discrimination;
   …
   (f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

   (i) where the Commission considers it appropriate to do so — to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
   (ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement—to report to the Minister in relation to the inquiry;

   …

The Applicant submitted that the Tribunal could review the Commission's failure to exercise these powers, whether by not investigating her claim of gross incompetence in the handling of her complaint or by not inquiring into her allegations about false or misleading statements.  She was concerned that it appeared as though no one would take responsibility for the Commission's conduct in adjudicating her complaint.

1. However, the HREOC Act does not give the Tribunal jurisdiction to review any decisions made by the Commission in relation to the exercise, or otherwise, of the powers conferred by s.11 of the HREOC Act.

2. The Tribunal finds, therefore, that it does not have jurisdiction in relation to the Applicant's application for review. The application must be dismissed pursuant to s.42A (4) of the Administrative Appeals Tribunal Act 1975.

   I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of 

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  16 July 2002
   Date of Decision  16 July 2002 
   Solicitor for the Respondent    Ms N Sheard