Williams, Kevin v The President, Human Rights and Equal Opportunity Commission

[1998] FCA 1325

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW -  Administrative Decisions (Judicial Review) Act 1977 (Cth) –complaints under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) - review of the decisions confirming the decision of the delegate of the Human Rights & Equal Opportunity Commission to cease to inquire into the complaints – whether an apprehension of bias - whether extensions of time to seek review of those decisions ought to be granted

Administrative Decisions (Judicial Review) Act 1977 ss 5, 11, 13

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 7, 18, 19

Racial Discrimination Act 1975 (Cth) ss 9, 15, 21, 22, 24, 24AA, 40
Sex Discrimination Act 1984 (Cth) ss 14, 50, 52, 52A

Kioa v West (1985) 159 CLR 550, cited

KEVIN WILLIAMS v THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR

NG783 of 1997

BRANSON J
SYDNEY

22 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  783  of   1997

BETWEEN:

KEVIN WILLIAMS
APPLICANT

AND:

THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

JUDGE(S):

BRANSON J

DATE OF ORDER:

22 OCTOBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to lodge the application with the Registry of the Court be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  783 of 1997

BETWEEN:

KEVIN WILLIAMS
APPLICANT

AND:

THE PRESIDENT, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SECOND RESPONDENT

JUDGE(S):	BRANSON J
DATE:	22 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

The applicant (“Mr Williams”) is a former member of staff of the Human Rights and Equal Opportunity Commission (“the Commission”).  He was appointed as an officer under the Public Service Act 1922 (Cth) (see s 43 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”)). He was deemed to have retired from the Australian Public Service in April 1996 when he failed to return to duty with the Commission at its Brisbane office at the expiration of three year’s leave without pay (see s 66A of the Public Service Act 1922 (Cth)).

Mr Williams relies on a second further amended application (“the application”) for an order for review sought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). By the application Mr Williams seeks review of two decisions of the first respondent. The first decision was made on 30 June 1997; by this decision the first respondent confirmed a decision of the Sex Discrimination Commissioner to cease to inquire into a complaint made by Mr Williams under the Sex Discrimination Act 1984 (Cth) (“the SDA”). The second decision was made on 18 August 1997; by this decision the first respondent confirmed a decision of a delegate of the Race Discrimination Commissioner to cease to inquire into a complaint made by Mr Williams under the Racial Discrimination Act 1975 (Cth) (“the RDA”).

Mr Williams has by notice of motion sought an extension of time within which to lodge the application with the Registry of the Court (s 11 of the ADJR Act). The motion for an extension of time was heard together with the application under s 5 of the ADJR Act.

The first respondent has appeared in the proceeding and submitted to any order of the Court save as to costs.  The second respondent was represented by counsel at the hearing of the application.

BACKGROUND FACTS

By letter dated 17 September 1996 Mr Williams lodged a complaint under s 9(1) of the Racial Discrimination Act 1975 (Cth) (“the RDA”) against the Commission. Relevantly the letter of complaint reads:

“I wish to lodge a complaint of race discrimination under s 9(1) of The Racial Discrimination Act against the Human Rights & Equal Opportunity Commission.

The matter relates to a number of issues in Queensland Office in 1992 that were never resolved adequately and again surfaced in 1996 (making my complaint within the 12 month limit – s 24(c)).

…

The complaint is directed specifically to Margo Couldry regarding matters in Queensland Office.  The Commission should have kept records of the copious memos, letters etc regarding this as they amount to some 300 pages.  In these they detail the ignorant, arrogant racist attitudes of Margo Couldry.

I also refer to correspondence between myself and Tom McKnight in January/February/March 1996, details which indicates a lack of understanding of Cross Cultural Issues.”

By letter dated 9 January 1997 Mr Williams purported to lodge a complaint under s 5(1) of the SDA against the Commission. His complaint under the SDA may be regarded as a complaint under s 14(2) of the SDA.

Relevantly the letter of complaint reads:

“I wish to lodge a complaint of Sex Discrimination under s 5(1) of the Sex Discrimination Act against the Human Rights & Equal Opportunity Commission.

The matter relates to a number of issues in Queensland Office in 1992 that were never adequately resolved and again surfaced in 1996 when Tom McKnight did not take into account my grievance against Margo Couldry.  Mr McKnight was of the opinion that a phone call to Margo Couldry was sufficient to address my concerns without evidence of her discrimination against me.

The two issues which fall within the ambit of the legislation are:

(1)      Being overlooked for higher duties because of my being male

(2)The attached offensive material that Margo Couldry was “floating” around the Brisbane office.”

The material attached to Mr Williams’s letter of 9 January 1997 was a copy document headed “The Evolution of Authority”.  The document depicts four footprints apparently made as follows: the first by an animal primate, the second by a bare human foot, the third by a man’s shoe and the fourth by a woman’s high-heeled shoe.

The delegate of the Race Discrimination Commissioner delegated to the then President of the Commission, Mr Ronald Wilson (“the President”), the responsibility of inquiring into Mr William’s complaint under the RDA. The Sex Discrimination Commissioner delegated to the President the responsibility of inquiring into Mr William’s complaint under the SDA.

On 12 March 1997, Ms Julie Kinross, Director of Complaint Handling at the Commission, had a telephone conversation with Mr Williams concerning his complaint of sex discrimination.  In reply to a question from Ms Kinross as to the reason for the delay in the lodging of his complaint, Mr Williams replied that it was because he was “on leave without pay to undertake a law degree”.  He referred to his having been required to return to work in the Brisbane Office notwithstanding his allegations about events which occurred in 1992.  When asked to identify the acts of discrimination the subject of his complaint, Mr Williams referred exclusively to incidents which occurred before he commenced his leave without pay.

By letter dated 14 March 1997, Ms Kinross, acting on behalf of the President, requested Mr Williams to provide specific details of the acts of racial discrimination of which he complained. During the course of a telephone conversation on 6 May 1997 between Mr Williams and Ms Kinross concerning Mr William’s complaint under the SDA, Mr Williams advised Ms Kinross that he had not received her letter of 14 March 1997. Ms Kinross explained the contents of the letter to Mr Williams and again posted the letter to him. No response to the letter was received from Mr Williams.

By letter dated 20 March 1997, the President advised Mr Williams of his decision under the SDA, and provided written reasons for his decision. The President’s decision was to invoke the discretion given by the SDA not to inquire into a complaint where more than twelve months had elapsed between the acts complained of and the making of the complaint.

The principal reason for the President’s decision can be found in the following paragraphs of his letter:

“You have suggested that the complaint is within time because the issues subject of this complaint were raised again when you had to return to work in 1996 to the same office where one of the people with whom you had grievances in 1992 still worked.  Whilst I understand that you might have had some trepidation about returning to work in the same office where you previously experienced some grievances, you have not provided any evidence that any further acts of discrimination had occurred to you.  I do not think that the mere presence of one of the people responsible for an alleged act in 1992 is sufficient evidence to show that discriminatory acts were occurring in 1996.

My preliminary inquiries with the respondent to your complaint show that you were expected to resume duties in the Brisbane Office of QADC on 22 February, 1996 but you did not return to work.  HREOC subsequently commenced forfeiture of office proceedings and your employment was terminated effective from 11 April, 1996.  As you did not return to that office, I can reasonably say that you did not experience any discrimination after March 1993 because you were absent from the office on leave.  I therefore do not accept your suggestion that the issues resurfaced in 1996.  I think that the acts of discrimination of which you complain occurred over four years ago.  I consider this to be a very long period of time.”

The President decided that it was not appropriate to exercise his discretion to entertain the complaint which he found related to an act or acts done more than twelve months before the date of the complaint. In reaching this decision the President had regard to the length of the delay in the making of the complaint, the likely prejudice to the respondent occasioned by the delay and the lack of prima facie evidence of discrimination on the ground of sex.

Mr Williams, by an undated letter, provided to the President a long response to his letter of 20 March 1997. Although Mr Williams did not by his letter request a review of the President’s decision on his complaint under the SDA, the President treated the letter as a request for review, and referred Mr Williams’ complaint under the SDA to the Honourable John Nader QC (“Mr Nader”) as the delegate of the President (s 52(4) of the SDA).

By letter dated 10 June 1997, the President advised Mr Williams of his decision under the RDA, and provided written reasons for his decision. Again the decision of the President was not to inquire into the complaint which he found to have been made more than twelve months after the alleged acts of discrimination. The paragraphs from the President’s letter of 20 March 1997, which are set out above, appear also in the letter of 10 June 1997. The letter of 10 June 1997 records that in determining not to entertain the complaint of racial discrimination, the President had regard to the length of the delay in the making of the complaint, the likely prejudice to the respondent occasioned by the delay and the failure of Mr Williams to provide details of the act or acts upon which his complaint was based.

By a further undated letter directed to the President, Mr Williams requested that the decision of the President under the RDA be reviewed. Again it was Mr Nader who was nominated to conduct the review.

On 30 June 1997, Mr Nader confirmed the decision of the President to cease his inquiry into Mr Williams’ complaint under the SDA. Mr Nader provided to Mr Williams written reasons for his decision. Mr Nader was “satisfied that the delay in lodging the complaint was, in all the circumstances, a sufficient reason for [the President’s] decision.”

By letter dated 28 July 1997, Mr Nader requested Mr Williams to provide to him a copy of the correspondence between Mr Williams and Mr Tom McKnight in January-March 1996 which Mr Williams regarded as relevant to his complaint of racial discrimination.  In a telephone conversation on 11 August 1997 between Mr Williams and Ms Kate Eastman, an officer of the Commission, Mr Williams expressed his view that he should not have to provide the material requested by Mr Nader.  By letter dated 12 August 1997 to Mr Williams, Ms Eastman confirmed her understanding that Mr Williams would not provide the material requested by Mr Nader.  In a telephone conversation with Ms Eastman on 14 August 1997, Mr Williams acknowledged receipt of Ms Eastman’s letter, asserted that the Commission should have the material sought by Mr Nader and repeated that he [ie. Mr Williams] should not have to provide the material.

By letter dated 18 August 1997, Mr Nader advised Mr Williams of his decision to confirm the decision of the President to decline to further investigate Mr Williams’ complaint under the RDA.

Mr Nader’s written reasons for his decision disclose that he was satisfied that:

(a)a period of more than twelve months had elapsed between the making of the complaint and the acts which formed the basis of the complaint;

(b)there were insufficient grounds to extend the time for lodging the complaint;

(c)there was no evidence to support Mr William’s contention that the alleged discrimination was ongoing; and

(d)the complaint insofar as it related to events in 1996 lacked substance.

STATUTORY BACKGROUND

Racial Discrimination Act 1975 (Cth)

Section 9 of the RDA, so far as is here relevant, provides:

“(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

…

(2)A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the [International Convention on the Elimination of all Forms of Racial Discrimination].

…

(4)The succeeding provisions of this Part do not limit the generality of this section.”

Section 15 of the RDA, which like s 9 appears in Part II of the Act, so far as is here relevant, provides:

“(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer –

(a)to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b)to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c)to dismiss a second person from the employment,

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.”

Section 19 of the RDA provides that there shall be a Race Discrimination Commissioner. Section 20(1)(a) confers on the Commission the function:

“to inquire into alleged infringements of Part II … and endeavour by conciliation to effect settlements of the matters alleged to constitute those infringements.”

Section 21 provides that the function of the Commission under s 21(1)(a) shall be performed by the Race Discrimination Commissioner on behalf of the Commission.

Section 22 of the RDA provides that a complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II may be lodged with the Commission by, amongst others, a person aggrieved by the act.

Section 24(2) of the RDA authorises the Race Discrimination Commissioner to decide not to inquire into an act, or not to continue an inquiry into an act, if, in the case of a complaint made to the Commission, a period of more than twelve months has elapsed since the act was done or the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance. Where the Race Discrimination Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner must give notice in writing to the complainant of the decision, the reasons for the decision and of the rights of the complainant arising from s 24(4). Section 24(4) provides that where the Commissioner has given a complainant a notice under s 24(3), in the case of a complaint which has been made to the Commission, the complainant may within 21 days after receipt of the notice, by notice in writing served on the Commissioner require the Commissioner to refer the decision to the President of the Commission. Section 24AA(2) of the RDA imposes on the President of the Commission a duty in such circumstances to review the Commissioner’s decision and to decide to confirm the decision or set aside the decision and direct the Commissioner to inquire into the act, or continue to inquire into the act, in accordance with s 24 of the RDA.

Section 40 of the RDA is concerned with powers of delegation. It provides:

“(1)The Commission may, be writing under its seal, delegate to a member of its staff, or to any other person, all or any of the powers conferred on the Commission under this Act.

(2)The Commissioner may by writing signed by the Commissioner, delegate to a member of staff of the Commission approved by the Commission, or to another person approved by the Commission, all or any of the powers exercisable by the Commissioner under this Act.”

Sex Discrimination Act 1984 (Cth)

The SDA is structured differently from the RDA. Although by s 5 it defines discrimination on the ground of sex, it does not make all discrimination on the ground of sex as so defined unlawful. Discrimination on the ground of sex is only rendered unlawful in the circumstances particularly identified in other sections of the SDA. The circumstance of most obvious relevance to Mr Williams’ complaint is that specified in s 14(2) of the SDA which, so far as is here relevant, provides:

“It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex …:

(a)in the terms or conditions of employment that the employer affords the employee;

(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)by dismissing the employee; or

(d)by subjecting the employee to any other detriment.”

Section 50 of the SDA authorises an aggrieved person to lodge a complaint in writing with the Commission alleging that a person has done an act that is unlawful by virtue of Part II of the Act.

Sections 52 and 52A of the SDA contain provisions analogous to those contained in ss 24 and 24AA of the RDA. Section 104(2) of the SDA authorises the Sex Discrimination Commissioner by writing signed by the Commissioner to delegate to a member of the staff of the Commission or any other person or body of persons approved by the Commission, all or any of the powers exercisable by the Commissioner under the SDA.

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

The HREOC Act establishes the Commission (s 7) and provides that the Commission shall consist of a President and six specialised Commissioners including the Race Discrimination Commissioner and the Sex Discrimination Commissioner (s 8). Section 19(3) of the HREOC Act authorises the delegation of the President’s powers under the RDA the SDA and the Disability Discrimination Act 1992 (Cth) to a person who holds an appointment under s 24F(1) of the RDA, s 57A(1) of the SDA or s 77(1) of the Disability Discrimination Act 1992 (Cth). It is not suggested that Mr Nader was not a person to whom the President’s powers under the RDA and the SDA could be delegated.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

This application has been brought under s 5 of the ADJR Act. That is, review is sought of decisions to which the ADJR Act applies, not of conduct relating to the making of such decisions (see s 6 of the ADJR Act). The relevant decisions of Mr Nader under the SDA and the RDA were decisions to confirm the earlier decisions of the President.

CONSIDERATION

The nature of the review conducted by Mr Nader

Counsel did not make submissions on the nature of the review to which Mr Williams was entitled under ss 24AA(2) of the RDA and 52A of the SDA. In the circumstances of this case it is not necessary for this issue to be given consideration. The grounds of review pressed all relate to allegations of error of law both by the President and by Mr Nader.

The date of the alleged acts of discrimination.

The principle submission of Mr Williams was that Mr Nader made an error of law in confirming the finding of the President that Mr Williams’ complaints under the SDA and the RDA respectively were made more than twelve months after the alleged acts of discrimination. I understand this submission to involve the contention that Mr Nader’s decisions to confirm the earlier decisions of the President were not authorised by the SDA and the RDA respectively, or alternatively that Mr Nader’s decisions involved an error of law (s 5(1)(d) and (f) of the ADJR Act).

I turn first to Mr Williams’ complaint under the SDA. Mr Williams purported to lodge a complaint under s 5(1) of the SDA. As is pointed out above, s 5(1) of the SDA does not render any conduct unlawful. The most favourable approach that can be taken to Mr Williams’ complaint under the SDA is to treat it as a complaint under s 14(2) of the SDA.

Section 50 of the SDA requires a complaint under the Act to contain an allegation that a person has done an act that is unlawful by virtue of Part II of the Act. Section 14 of the SDA is within Part II of the SDA. However, the only act or acts identified in Mr Williams’ complaint as falling within the ambit of the SDA are:

“(1)     Being overlooked for higher duties because of my being male

(2)The attached offensive material that Margo Couldry was “floating” around the Brisbane Office.”

Each of those “acts” occurred before March 1993. Neither the President nor Mr Nader considered the reference in Mr Williams’ letter of complaint to Mr McKnight as amounting to an allegation that Mr McKnight had done an act that is unlawful by virtue of Part II of the SDA. In my view, it was plainly open to them to read Mr Williams’ letter of complaint in this way. Nothing in the letter suggests that Mr Williams was intending to allege that Mr McKnight’s conduct went beyond being inappropriate (in Mr Williams’ view) and amounted to an act or acts of discrimination against Mr Williams on the ground of his sex.

I find that Mr Nader made no error of law in confirming the finding of the President that Mr Williams’ complaint under the SDA was made more than twelve months after the alleged acts of discrimination.

Section 22 of the RDA, like s 50 of the SDA, requires a complaint under the RDA to contain an allegation that a person has done an act that is unlawful by virtue of Part II of the RDA. The only act or acts referred to in Mr Williams’ complaint under the RDA relate to “issues in Queensland Office in 1992”. The fact that these issues regained a significance to Mr Williams when the question of his returning to work in the Queensland Office of HREOC arose in 1996, does not turn them into acts which occurred in 1996. The President concluded that it would be inappropriate in the exercise of his discretion to entertain a complaint in respect of those acts. Mr Nader reached the same conclusion. It has not been contended that either the President or Mr Nader made an error of law in so concluding.

As to the reference in Mr Williams’ letter of complaint to Mr McKnight’s alleged “lack of understanding of Cross-Cultural Issues”, Mr Williams failed to provide to Ms Kinross copies of that correspondence when requested to do so.  Nor did Mr Williams respond to Ms Kinross’s request for him to provide details of the acts of racial discrimination of which he complained.  The President formed the view that the act or acts of racial discrimination of which Mr Williams complained occurred in 1992.

Mr Nader, when reviewing the decision of the President under the RDA was prepared to assume that Mr Williams had complained of acts of racial discrimination in 1996. However, he concluded that there was no evidence or material to support the allegation that Mr McKnight discriminated against Mr Williams on the basis of his race in 1996. In the circumstances this conclusion was plainly open to Mr Nader. It did not involve any error of law.

Appropriately in the circumstances, no contention was advanced that Mr Nader ought to have found that the President’s exercise of his discretion not to further inquire into complaints which he found to have been made more than twelve months after the alleged acts of discrimination had miscarried.

Bias

Mr Williams submitted that both of the decisions of which review is sought “were infected by apprehended bias, as the [first] respondent was the subject of the applicant’s complaint”. It was submitted that the “matters should have been referred to a person independent of the commission for assessment prior to consideration by the Commissioner.” I assume that the reference to “the Commissioner” in this submission is a reference to the then President of the Commission, Sir Ronald Wilson. I also assume that it is s 5(1)(a) of the ADJR Act, which is concerned with breaches of the rules of natural justice, upon which Mr Williams intended to place reliance when advancing this submission.

The two decisions of the President are not the subject of the application before the Court.  It is the decisions of Mr Nader which are under review.  Was Mr Nader bound to set aside the two decisions of the President on the basis that breaches of the rules of natural justice occurred in connection with the making of the decisions?

The requirements of the rules of natural justice, or the duty to act fairly will vary depending on the statutory context in which a particular decision is to be made (Kioa v West (1985) 159 CLR 550 per Mason J at 584-585). Each of the SDA and the RDA require complaints of the kind made by Mr Williams to be lodged with the Commission (RDA s 22(1); SDA s 50(1)). Each of the SDA and the RDA also requires the Commission to notify the relevant Commissioner (ie. the Race Discrimination Commissioner or the Sex Discrimination Commissioner, respectively) accordingly and further requires the relevant Commissioner, subject to certain exceptions, to inquire into the act or acts of which complaint is made (RDA s 24(1); SDA s 52(1)). Each of the relevant Commissioners has a power to delegate his or her statutory functions (RDA s 40(2); SDA s 104(2)). Each of the Commissioners in this case delegated his or her power to inquire into Mr Williams’ complaint to the President. Neither of the Commissioners had the power to delegate his or her power to anyone other than a member of the staff of the Commission or another person approved by the Commission.

In view of Mr Williams’ former relationship with the Commission, and the nature of his complaints, the decisions of the two Commissioners not to exercise their respective powers of inquiry themselves, or to refer their respective powers to a member of staff of the Commission, were understandable. However, in construing the RDA and the SDA, it is of importance to note that the relevant powers of inquiry have been given by the legislation to the Race Discrimination Commissioner and the Sex Discrimination Commissioner respectively. I am not satisfied that, as a matter of law, the Commissioners were required, assuming that they were to delegate their respective powers of inquiry, to delegate them to a person independent of the Commission. It is to be observed that Mr Williams’ written complaints did not allege that a member of the Commission, as opposed to a member of staff of the Commission, had acted unlawfully. Whilst the legislature has authorised the Race Relations Commissioner and the Sex Discrimination Commissioner to delegate their respective powers, the terms of the RDA and the SDA indicate that the function of conducting inquiries is a central role of the Commission, ordinarily acting through the appropriate Commissioner. It is significant that the powers of inquiry under s 24(1) of the RDA and s 52(1) of the SDA are powers of inquiry intended to precede conciliation. The roles of the respective Commissioners under s 24(1) of the RDA and s 52(1) of the SDA are not judicial roles; the Commissioners are not authorised by the subsections conclusively to determine any person’s rights. Where, as in this case, the decisions taken by the delegate of the two Commissioners were to cease to further inquire into the complaints such decisions were subject to review (RDA ss 24(3), 24AA; SDA ss 52(4), 52A).

Mr Nader was not in my view, bound to set aside the President’s decisions on the ground of apprehended bias.  Indeed, I consider that he would have erred in law if he had reached a decision to do so.

I do not understand it to have been submitted that Mr Nader’s own decisions were affected by apprehended bias. If it were so submitted, I reject the submission. Each of the RDA and the SDA, in the circumstances of this case, required the delegate of the relevant Commissioner to refer his decision not to further inquire with Mr Williams’ complaint to the President. In this case the President himself was the delegate of the relevant Commissioner. It was therefore necessary for him to delegate the power to review his earlier decisions. The President was only entitled in the circumstances to delegate his power to a member of the Commission or a person holding a particular appointment under the RDA, the SDA or the Disability Discrimination Act 1992 (Cth)(s 19(3) of the HREOC Act). Against this statutory background, no legitimate complaint can be made concerning the delegations of the President’s powers to Mr Nader. Delegations in the circumstances, to a member of the Commission, who would necessarily have been a person responsible, in an administrative sense, to the President, would have been open to criticism.

In my view, there is no merit in the contention, assuming such a contention to have been made, that an apprehension of bias arose from the delegation to Mr Nader of Mr Williams’ complaints under each of the RDA and the SDA. It is true that the complaints were obviously related. However, this was, in my view, a strong reason for having the complaints considered both at the inquiry stage, and at the stage of the review of the decisions to cease to further inquire into them, by the same person. Not only was this an administratively efficient course, it was also an appropriate way to avoid the potential embarrassment of conflicting decisions on the related factual material.

Extension of time

The only other contentions advanced on behalf of Mr Williams relate to the question of whether his applications were lodged within the time prescribed by s 11 of the ADJR Act. Each of the decisions of Mr Nader was set out in a document furnished to Mr Williams (s 11(3)(b)(iii)). It is contended by Mr Williams that Mr Nader’s decisions under the SDA and the RDA do not set out material findings of fact within the meaning of s 11(3)(a) of the ADJR Act. It is not suggested that Mr Williams requested a statement setting out Mr Nader’s findings on material questions of facts in accordance with s 13(1) of the ADJR Act. In the circumstances, even if the above contention is correct, the prescribed periods within which the applications for review by this Court were to be lodged commenced on the respective days that the documents setting out the terms of Mr Nader’s decisions were furnished to Mr Williams and expired twenty eight days thereafter (s 11(3)(b)(iii)).

Had I been satisfied that there was merit in Mr Williams’ applications for review under the ADJR Act, I would have extended the time within which he was entitled to lodge his application for review of Mr Nader’s decision under the RDA. This application was made only a few days outside the prescribed period. The respondents have not suggested that they have been prejudiced by this short delay, which in the circumstances I find to have been adequately explained. However, even had I been satisfied that Mr Williams’ application for review of Mr Nader’s decision under the SDA had merit, I would have been extremely reluctant to have granted an extension of time within which Mr Williams was entitled to lodge an application for review of this decision. The necessity for an application to be made under s 5 of the ADJR Act if Mr Williams wished this decision of Mr Nader to be reviewed was pointed out to Mr Williams by the solicitor for the first respondent by letter dated 27 November 1997. It was also pointed out by this Court to a legal representative of Mr Williams at a directions hearing. Notwithstanding this advice, this proceeding was allowed to come on for hearing on 16 July 1998 without any such application having being made or foreshadowed. An application under s 5 of the ADJR Act in respect of the decision of Mr Nader under the SDA was first made on 16 July 1998 during the course of the hearing of this matter when leave was granted to amend the originating process.

The question of whether an extension of time should be granted to allow an application for review to be made under the ADJR Act is not a matter solely for the parties; issues concerning the public interest arise. Nonetheless, the attitude of the respondent will ordinarily be an important matter to which the Court will have regard. In this case the second respondent objected to the grant of an extension of time only on the basis that the substantive application was lacking in merit.

As I am satisfied that there is no basis under s 5 of the ADJR Act for review of either of Mr Nader’s decisions, the appropriate order is, in my view, that the application for extensions of time to lodge the application for review of the two decisions should be refused.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:

Counsel for the Applicant:	D. Godwin
Counsel for the First Respondent:	Australian Government Solicitor
Solicitor (Advocate) for the Second Respondent:	A. Markus
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	16 July and 10 August 1998
Date of Judgment:	22 October 1998