DEPARTMENT OF POLICE, FIRE AND EMERGENCY MANAGEMENT

APPEALED FROM: Martin White v Department of Police, Fire and Emergency Management [2022] TASCAT 126

Administrative law - Judicial review - Grounds of review - Error of law - Whether direct discrimination can be remedied by subsequent internal action - Meaning of "program, plan or arrangement designed to promote equal opportunity" - Whether s 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 is conjunctive - Tribunal erred in finding direct discrimination remedied by internal grievance process - Tribunal erred in finding s 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 is conjunctive - Appeal allowed.

Administrative law - Judicial review - Procedure and evidence - Extension of time - Particular cases - Where subject matter of proposed appeal is the same as another appeal that has been lodged in time - Where other appeal succeeds - Application to extend time granted.

First Respondent: Wallace Wilkinson & Webster Lawyers

First Respondent: Wallace Wilkinson & Webster Lawyers

Judgment Number: [2023] TASSC 26

ANTI-DISCRIMINATION COMMISSIONER v MARTIN WHITE and DEPARTMENT OF POLICE, FIRE AND EMERGENCY MANAGEMENT

1. Both appeals before the Court (or in strict terms an appeal and an application to extend time within which to appeal) arise as a result of allegations that a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal") contains errors of law and should be set aside with the matter remitted to the Tribunal to be determined in accordance with law. An appeal lies against a decision of the Tribunal on a question of law against an order of the sort made by it at the behest of "any person", see s 136(1)(a)(i) of the Tasmanian Civil and Administrative Tribunal Act 2020.

1. On or about 10 February 2021, Mr Martin White (the first respondent in matter 3311/2022 and the respondent in matter 429/2023) made a complaint to Equal Opportunity Tasmania ("EOT") "(i)n relation to discrimination and prohibited conduct". "Complaint" is defined in s 3 of the Anti-Discrimination Act 1998 ("the Act") to mean "a complaint made in relation to discrimination or prohibited conduct".
2. In compiling the details of that complaint himself, in compliance with the relevant form, Mr White complained about age discrimination. Mr White explained how he had been overlooked for a transfer to a vacancy at Richmond Police Station for which he applied in December 2020. He has been a police officer with Tasmania Police since March 1982 and intends to retire in April 2025. It was a requirement of the position at Richmond to occupy the residence provided in Richmond by Tasmania Police. He said in his complaint that he had initiated an internal grievance process which was pending. He claimed to have been indirectly discriminated against on the basis of age. He said he had spoken to a manager in Tasmania Police who informed him that a key consideration in the selection of the successful applicant for the transfer was the "career stage" of the applicant and that preference was given to "an applicant at the early stage of their career" to "mitigate the likelihood of the successful applicant remaining in this specific tenure for a protracted period". He claimed that these matters were not stated as criteria for selection for the position by Tasmania Police. He claimed that he had been discriminated against "as an applicant who is older through years of service". He asked for advice about whether what happened to him amounted to "indirect discrimination".
3. In a decision dated 30 August 2021 the Anti-Discrimination Commissioner (the appellant in 3311/2022 and the intervenor in 429/2023) determined under s 71(1)(c) of the Act that the complaint of Mr White proceed to an inquiry. The decision referred to the outcome of the grievance process within Tasmania Police regarding the transfer and to the fact that, on 3 March 2021, Mr White was informed by Ms Baker (Director, People and Culture) of Tasmania Police that the review had been finalised and the original selection upheld.
4. The decision of the Commissioner referred to Mr White's suspicion that he had been indirectly discriminated against on the basis of age. It recounted the claims made in Mr White's complaint document. The Commissioner accepted the complaint on the basis that it disclosed a possible breach of the Act being indirect discrimination against Mr White on the basis of age in connection with his employment. The decision also referred to reasons given by Ms Baker for Tasmania Police's preference for the successful applicant including that the successful applicant had "more contemporary frontline uniform experience" and "the potential for future development and promotion".
5. On 15 March 2021, Assistant Commissioner Bodnar upheld the decision to promote the originally successful candidate. Assistant Commissioner Bodnar referred to an independent report provided by Acting Commissioner Elmer which favoured appointing females who apply for positions at rural police stations to increase diversity.
6. The 30 August 2021 decision of the Commissioner, referred to at [4] above, stated towards the end that:

"It should be noted that Mr White did not allege gender discrimination in his complaints and did not request that I amend the complaint to include gender discrimination."

1. The complaint then came before the Tribunal. Although the complaint formally raised the issue of indirect discrimination by reason of age, its terms are not comprised by considerations of ambit (as in an industrial claim) or claims as in a court pleading. Many complaints are made under the Act by self-represented people who feel aggrieved at outcomes including outcomes at work. If, in discussing the complaint, the person making the complaint or considering it believes that the subject matter of the complaint, or the controversy raises other possible descriptions of discrimination, that is no bar to those issues being raised before the Tribunal. As counsel for the Commissioner submitted, "although the Act makes express provision for the kinds of information that need to be in a complaint, it does not require a complainant to identify which provisions of the Act are alleged to have been breached, what form of discrimination is alleged, or what is relied on." In that regard s 62 of the Act refers to "a complaint identifying the person or organisation against whom the alleged discrimination is directed and against whom a complaint is made, as well as the details of the alleged discrimination or prohibited conduct." As counsel submitted, it is for the Commissioner and the Tribunal to determine, based on the facts before them, what discrimination or prohibited conduct is raised by the facts or, as counsel put it, to sort out "what happened". As Wood J said in Jago v Anti-Discrimination Tribunal [2021] TASSC 10 at [7]:

"The contents of the referral report, including the Commissioner's identification of the respondents, the issues and potential breaches of the AD Act are not binding on the Tribunal."

1. When the matter reached the Tribunal, Mr White claimed that he had been discriminated against on the basis of his age (indirect discrimination) and on the basis of his gender (direct discrimination contrary to s 14(2) of the Act).

1. The Tribunal found to the effect that Mr White was discriminated against on the basis of gender. It awarded Mr White $20,000 by way of compensation.
2. The Tribunal commenced its decision by noting that Mr White had claimed "unlawful discrimination in the area of employment on the grounds of age and gender."
3. At [92] the Tribunal said:

"Because no condition, requirement or practice has been identified which disadvantaged the complainant because of an attribute, I find that there is no evidence of indirect discrimination on the grounds of age or gender."

1. At [103] the Tribunal found that before the rejection of Mr White's transfer application it was the subject of an internal grievance process, on the basis he was allegedly "treated less favourably on the grounds of age."
2. At [104] the Tribunal said:

"In considering whether the complainant suffered a detriment, a disadvantage that is real, a matter of substance, and not trivial, I note that when [Commander] Elmer and Assistant Commissioner Bodnar assessed the complainant's application without the 'intention to retire' criterion, the complainant's application was elevated in the ranking but still inferior compared with the successful applicant's."

1. At [105] the Tribunal considered that by entering the grievance process Mr White gave police command the opportunity to "remedy the discrimination", which at [106] the Tribunal found was remedied. Effectively the Tribunal found that direct discrimination on the basis of age occurred in the original decision not to select Mr White for the Richmond transfer, but that the discrimination was remedied in the grievance process when age was removed as a factor.
2. At [107] the Tribunal commenced to consider the issue of direct discrimination on the ground of gender. At [112] the Tribunal concluded that it was satisfied that Mr White's gender was, "a causative and not insignificant factor in the rejection of his grievances and therefore he was treated less favourably in the grievance process than he would have been if he were of the same gender as the successful applicant."
3. The legal representative for the Police Department contended before the Tribunal that if gender discrimination was found, either s 25 or s 26 of the Act made that discrimination lawful.
4. At [118] the Tribunal noted that:

"Section 25 allows discrimination against another person in employment if it is for the purpose of carrying out a scheme for the benefit of a group which is disadvantaged or has a special need because of a prescribed attribute."

"Section 26 sanctions the promotion of equal opportunity within a 'program, plan or arrangement' designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute."

1. At [124] the Tribunal stated that "a scheme, program, plan or arrangement for the purposes of sections 25 and 26 must be tangible, strategic and established". At [125] the Tribunal found no evidence of such a scheme in this matter. The Tribunal also found that such schemes should have specific goals and outcomes.
2. At [129] the Tribunal dealt with the topic of obligations on an organisation under s 104 of the Act. Section 104 obliges an organisation (defined in s 3 to include a government department) to make people working in it and for it aware of the "discrimination and prohibited conduct" to which the Act relates and to ensure that no one working in the department or for the department engages in that conduct. Section 104(2) provides:

"An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct."

1. The Tribunal declined to make an order under s 104. At [134] the Tribunal said that it had no jurisdiction to "entertain alleged breaches of s 104". At [136] the Tribunal said that any breach could only "be dealt with by Police and Courts."
2. Earlier at [132] the Tribunal decided that ss 104(1)(a) and (c) had no operation independent of s 104(b).
3. At [145] the Tribunal observed that it had found that Mr White was, "treated less favourably in the grievance process on the grounds of gender (and that age-based considerations in the original selection process were remedied internally)." However, the Tribunal considered that even if the grievance process had been decided differently the complainant would not have been preferred over the successful candidate.
4. At [146] the Tribunal stated that:

"That application of gender [in the grievance process] meant that the complainant lost the chance to be judged fairly in the grievance process. I take the view that it is appropriate to award pecuniary compensation to the complainant for that lost chance."

1. On 5 December 2022, the Commissioner filed a notice of appeal against the decision of the Tribunal. The notice of appeal contained four grounds. The first ground alleged that the Tribunal erred in law by holding that there was no direct discrimination on the basis of age. The second took issue with the Tribunal's decision that ss 25 and 26 of the Act require that such measures must involve "specific goals and outcomes" and be "tangible, strategic and established." The third ground took issue with the Tribunal's construction of s 104. The fourth ground took issue with the Tribunal's view that breaches of the section could only be dealt with in the Supreme Court.

1. Counsel for the Commissioner, Ms Fitzgerald, submitted that the finding of the Tribunal that Mr White was treated less favourably on account of his age and discriminated against on that basis meant that direct discrimination on the basis of age should have been a finding of the Tribunal. Any "quick remedy" of that discrimination by a review process, counsel submitted, would be irrelevant to the anterior existence of discrimination. The relevance of what happened in the grievance process, counsel submitted, is a matter which informs the remedy which the Tribunal grants in response to the discrimination. Ms Fitzgerald referred to the decision of the Tribunal in Grutzner v Roman Baths [2002] TASADT 7 at [27], where that Tribunal recognised that a breach of law is able to found legal liability even after it has been remedied. The Tribunal in Grutzner said:

"If there has been a past breach of the Act and during the investigation the situation has been rectified so that the breach is not continuing to occur then a Complainant may still wish the complaint to be pursued by the Commission on the basis that the past conduct requires a remedy."

1. Mr Jehne, of the Solicitor-General's office, appeared for the Department of Police, Fire and Emergency Management as intervenor in the Commissioner's appeal. Mr Jehne submitted that if ground 1 of the Commissioner's appeal is established, relief should not be granted as no substantial wrong has arisen as a consequence. That argument was based on r 693(6) of the Supreme Court Rules which provides:

"(6) An appeal is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection."

1. Mr Jehne also raised the anterior issue of whether the Tribunal had jurisdiction to entertain a complaint of direct discrimination on the basis of age, given the claims made in the initial complaint and the way the matter proceeded before the EOT and the Commissioner's report as discussed above.
2. Mr Jehne also submitted that the Tribunal made no positive finding of age discrimination "having been crystalised during the initial selection process". That is contrary to the express finding of the Tribunal at [103] that "I find that, in the pre-grievance state of the appointment process, the complainant was treated less favourably on the grounds of age".
3. Mr Jehne made further submissions concerning whether any finding of direct discrimination on the basis of age would have mattered as the successful candidate was, on the evidence, the best candidate for the position. However that is an issue relevant to remedy only. It is entirely possible that had the Tribunal found that direct discrimination on the ground of age occurred at the selection stage and that the grievance process's remedy of that did not take away the original discriminatory conduct or expunge it, the Tribunal may have awarded a higher sum than $20,000 in compensation.
4. Mr Jehne's further contention that there was never any discrimination of Mr White on the basis of age is against the evidence concerning what happened at the selection stage and the Tribunal's finding about what happened at that stage. Mr Jehne's reference to the Tribunal's finding of indirect discrimination does not bear upon the Tribunal's finding about direct discrimination on the basis of age at the selection stage.
5. I also reject the submissions of Mr Jehne based on the Supreme Court Rules and in particular, r 693(6). The failure to acknowledge that direct age discrimination at the selection process is not cured or rendered valid by what happened in the grievance process is not a "misdirection". It is also not "the improper reception of evidence." It is an error of law.
6. Mr Jehne further contended that the Department would be denied procedural fairness if direct age discrimination was considered to be before the Tribunal. It is difficult to see why as submissions were made on behalf of Mr White about indirect and direct discrimination on the basis of age before the Tribunal. The more fundamental point raised by Mr Jehne is that the written complaint and the contents of the referral by the Commissioner to the Tribunal constitute the ambit concerning what can be raised by a complainant in the Tribunal. As discussed at [8] the issue of ambit is inapposite for proceedings in the Tribunal as a result of a referral by the Commissioner. The controversy constituting the facts relevant to the complaint is what is critical before the Tribunal. An argument available to a complainant may not have crystalised before the matter reaches the Tribunal. So much is consistent with the view of Wood J in Jago at [7], referred to earlier in these reasons at [8].
7. Mr Jehne relied on the judgment of the Full Court in Higgins v Orchard [2022] TASFC 12 to contend to the contrary. At [67] in Higgins, Brett J (with whom Jago J and Martin AJ agreed) said that the "complaint at the point of referral will relate to the conduct described in the original complaint, subject to any amendment made by the Commissioner ...". (Emphasis added.) The critical issue is "the conduct" or the controversy and not the legal consequences flowing from such conduct or controversy which will be a matter for the Tribunal to deal with and determine.
8. Counsel for Mr White, Mr Zeeman, adopted the submissions of Ms Fitzgerald for the Commissioner on the Commissioner's first ground of appeal.
9. For the reasons set out above I consider that the Commissioner's first ground of appeal is made out. Having found that there was direct discrimination on the basis of age the Tribunal cannot proceed on the basis that it was cured by subsequent action. The relevant discrimination either occurred at the selection stage or it did not. It is clear from the reasons of the Tribunal that it did occur at the selection stage. A finding should have been made on that basis and the remedy adjusted to take into account the existence of direct age discrimination at the selection stage. In finding that what was discrimination was cured at the selection stage by what happened at the grievance stage the Tribunal erred in law.

"The Tribunal erred in law by holding that the words 'scheme' and 'program, plan and arrangement' in ss 25 and 26 of the [Act] require that such measures must involve 'specific goals and outcomes' and be 'tangible, strategic and established'."

1. The Explanatory Memorandum accompanying the Bill that led to the Act had this to say about what became of s 20:

"It will not be unlawful discrimination to adopt a measure to reduce the disadvantage or structural inequalities suffered as a consequence of past discrimination and to redress by equal opportunity measures. This exemption is provided in clause 26."

1. The above material shows that s 26 in referring to a "program, plan or arrangement designed to promote equal opportunity" encompassed all equal opportunity measures without the requirement for a formal, written policy document setting out a specific strategy. The same logically applies to "schemes" referred to in s 25 to redress disadvantage. The use of the word "arrangement" in s 26 tells against the need for any formal documented policy. There is no warrant for reading s 26 in a narrow or restricted way just because like provisions in other jurisdictions might be broader on their face.
2. There is no valid basis to limit the operation of ss 25 and 26 of the Act if an organisation considers that action is required to redress disadvantage experienced by a category of persons which has been the subject of discrimination in the past, and in relation to which category the organisation desires to address and redress that disadvantage. The problem with seeking to define special measures narrowly, in the federal context, was addressed by Gray J in the Federal Court in Walker v Cormack [2011] FCA 861, 196 FCR 574 at [30]. There Gray J said that:

"Attempts to take such [special] measures ought not to be judged by reference to criteria that are too difficult to comply with."

Although the provision in Walker is worded very differently to s 26 of the Act the same caution not to apply a too technical or pedantic approach to measures designed to promote equal opportunity are relevant in this jurisdiction.

1. The Tribunal's approach to ss 25 and 26 caused it to reject an argument in favour of the Police Department that weighed against the Tribunal's finding in favour of Mr White on gender discrimination and may have, if properly applied, told against the finding of gender discrimination and the consequence of award of compensation. In other words, the interpretation of ss 25 and 26 by the Tribunal led it into error on the topic of gender discrimination.
2. In taking a narrow, restrictive and pedantic approach to ss 25 and 26 of the Act, the Tribunal committed an error of law, which affected its determination of the proceeding. Ground 2 of the Commissioner's grounds of appeal is made out. I note that Mr Jehne on behalf of the Department made submissions in support of the approach to ss 25 and 26 of the Act urged on the Court by Ms Fitzgerald. I reject the approach taken by Mr Zeeman for Mr White that the best guide to the meaning of "program, plan or arrangement" is to focus on dictionary definitions rather than the intention of the Act to promote equal opportunity and redress disadvantage. Ground 2 of the Commissioner's appeal is made out.

Ground 3 of the grounds of appeal of the Commissioner

"The Tribunal erred in law by holding that section 104 of [the Act] is a conjunctive provision and that subsections 104(a) and (c) ... do not impose obligations that are independent of (b)."

1. Section 104(1) provides that:

(a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and

(b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and

(c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct."

1. At [132] in the reasons of the Tribunal, the Tribunal held that s 104(a) and (c) have no operation independently of s 104(b), and that they cannot apply unless there has been an order under s 89 of the Act. Section 89 allows the Tribunal to make orders where it has found that a complaint under the Act has been substantiated.
2. The word "and" appears after the first two paragraphs in s 104. That suggests that the obligations in s 104(a) and (c) are absolute and do not depend on any order being made under s 89 as does s 104(b).
3. As Ms Fitzgerald submitted, s 104(1)(c) makes organisations vicariously liable for discrimination engaged in by their members. The construction favoured by the Tribunal as Ms Fitzgerald contended would mean that no vicarious liability would arise in the absence of an order under s 89. On a plain reading of s 104 that is not so and is an impermissibly restrictive view of beneficial legislation.
4. The approach taken by the Tribunal is at odds with the judgment of Wood J in Jago where at [37] her Honour said:

"It can be seen that under this section [s 104] of the AD Act, organisations have four discrete obligations. Those set out in subs (1)(a), (b), (c) and also subs (2) being the obligation to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct..."

1. Mr Jehne urged the Court to adopt the construction of s 104(1) advanced by the Tribunal. That submission is untenable given the judgment of Wood J in Jago and based on the natural meaning of the legislation which clearly imposes three separate obligations in ss 104(1)(a), (b) and (c).
2. Mr Zeeman submitted, consistently with the submissions of Ms Fitzgerald that Jago is authority for the proposition that each of ss 104(1)(a), (b), (c) and (2) create separate obligations.
3. Ground 3 of the Commissioner's grounds of appeal is also made out. The Tribunal erred in law by construing s 104(1) in the way it did. The effect of this interpretation of s 104(1) in the Tribunal's decision is not as significant however as its ruling that it cannot deal with any breach of s 104 and its consequent ruling that that issue is for the Supreme Court only. This brings me to the fourth ground of appeal of the Commissioner.

1. Ground 4 of the Commissioner's appeal is that the Tribunal erred in law by holding that breaches of s 104 of the Act can only be dealt with by the Supreme Court.
2. In Jago, Wood J took no issue with the fact that in that case the Tribunal exercised jurisdiction under s 104. This makes perfect sense because the bifurcated approach involves a hiving off of part of a Tribunal case to the Supreme Court and makes little practical sense.
3. Furthermore there is nothing in the legislation to support such an approach which would make it especially difficult for litigants in person to obtain the full relief to which they may be entitled. There is nothing in the text of s 104 itself or elsewhere in the legislation that suggests that the Tribunal is not empowered to consider whether the section has been breached.
4. Mr Zeeman did not want to be heard on the Commissioner's ground 4. Mr Jehne's primary submission on this ground was that no substantial wrong was accorded to Mr White even if the construction of s 104 by the Tribunal was wrong. That is not the correct approach to take when considering whether an error of law occurred in the current circumstances as discussed above at [33]. The Tribunal committed an error of law by wrongly concluding that it had no jurisdiction to deal with alleged breaches of s 104 when it did have that jurisdiction.

Consequences flowing from the success of the Commissioner's appeal on all four grounds

1. The four significant errors identified by the Commissioner's appeal show that the Tribunal committed several important errors of law which to a greater or lesser extent had the capacity to affect the outcome of the matter before the Tribunal, especially in relation to its finding concerning direct discrimination on the ground of gender and its failure to make the correct finding about direct discrimination on the ground of age. I now turn to consider the application by the Secretary of the Department for an extension of time within which to file her appeal.

1. Despite the Secretary being out of time to lodge her appeal I consider that an extension of time should be granted because the subject matter of her proposed appeal is the same decision of the Tribunal which is impugned in the Commissioner's appeal. Therefore leave is granted to extend the necessary time within which to commence that appeal.

1. The first ground of appeal raised by the Secretary of the Department concerns the ambit argument which I have rejected in dealing with the Commissioner's appeal. There is no basis for the contention that Mr White was confined to submissions about indirect age discrimination. See the discussion at [34] above.
2. The second ground of appeal correctly mirrored the ground of appeal raised by the Commissioner as to the interpretation of ss 25 and 26 of the Act. For the reasons set out at [40]-[43] above, that ground is established.
3. The third ground of appeal challenges the finding of direct discrimination on the basis of gender. That finding is impugned as a consequence of the Tribunal's misunderstanding of ss 25 and 26 and their proper application. Accordingly it is unnecessary to make any more observations about the treatment of that issue by the Tribunal, given that the matter is to be remitted to the Tribunal.
4. The fourth ground of appeal of the Secretary relates to the award of compensation. As that award will be set aside as a consequence of the orders to be made by the Court there is no utility in dealing with this ground.

1. Having regard to the foregoing the Court will order in 3311/2022 as follows:
   1. The appeal is allowed.
   2. The decision of the Tribunal of 8 November 2022 is quashed.
   3. The matter is remitted to the Tribunal, differently constituted, to hear and determine in accordance with law.
2. In 429/2023, the following orders are made:
   1. The appellant be permitted an extension of time within which to bring her appeal to enable her appeal to be heard with 3311/2022.
   2. The appeal is allowed.
   3. The decision of the Tribunal of 8 November 2022 is quashed.
   4. The matter is remitted to the Tribunal, differently constituted, to hear and determine in accordance with law.