Budd v State of New South Wales

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Police Act 1990

Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002) CASES CITED: Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145 IW v City of Perth (1997) 191 CLR 1 Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT J Ford, solicitor

ORDERS: 1. File 051068 Leave is refused; 2. File 051087 Leave is refused.

REASONS FOR DECISION Introduction 1 Ms Budd is asking for the Tribunal's permission to go ahead with two complaints of discrimination. The President of the Anti-Discrimination Board declined the complaints as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (ADA) requires the applicant to obtain the Tribunal's permission before the complaints can go ahead. Ms Budd alleges in both complaints that officers from NSW Police discriminated against her on the ground of her disability. Ms Budd suffers from agoraphobia and social phobia. She rarely leaves her home and apart from her son, is generally unable to speak to people face to face. She conducts all her litigation by facsimile and by phone. 2 The first complaint (File No 051068) was lodged with the President of the Anti-Discrimination Board on 23 September 2004. Some of the incidents about which Ms Budd complained happened before 23 March 2004 and were therefore outside the statutory time limit of six months. The President of the Board did not accept any aspect of the complaint which occurred more than six months before Ms Budd lodged her complaint. Two incidents occurred within the statutory time frame. According to Ms Budd, the first was on 22 August 2004 when police officers knocked on her door. The second was on 1 September 2004 when Ms Budd says that police officers told her that they would break down her door if she did not open it. 3 Police officers admit that they knocked on Ms Budd's door on 21 August (not 22nd August as Ms Budd alleged) and on 1 September 2004, in response to complaints by a neighbour. NSW Police say that Ms Budd and the neighbour have Apprehended Violence Orders (AVOs) against one another and there have been many disputes about the enforcement of those orders. Ms Budd's neighbour complained that Ms Budd was in breach of one of the AVOs. Police say that they spoke to Ms Budd's neighbour and then attempted to speak to Ms Budd to obtain her version of events. Police allege that on 21 August 2004, Ms Budd refused to open her door. In relation to the incident on 1 September 2004, NSW Police say that one of the officers concerned had met with Ms Budd on several occasions prior to that time. They went on to say that, "The officer banged on the door and asked Ms Budd to speak with him. Ms Budd told the officer to go away and to speak with her through the Minister." 4 The second complaint (File No 051087) was lodged with the President of the Anti-Discrimination Board on 23 February 2005 and alleges that a police officer refused to properly re-investigate allegations that Ms Budd's sister had fraudulently deprived her of ownership of a property in 1977. In particular, Ms Budd says that Sergeant Fiddick decided not to proceed with the prosecution of her sister because he formed a view that the Local Court would not accept Ms Budd's evidence, or she would not be able to give oral evidence in Court, because of her disability. 5 With the consent of the parties, the issue of whether the Tribunal should grant leave for the complaints to proceed was determined "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Approach to determining whether to grant leave 6 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [18], the Tribunal set out the approach to be taken to applications for leave under s 96 of the ADA: The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. First complaint 7 Ms Budd's version of events. It is not clear whether Ms Budd is alleging that police officers asked her to open the door on or about 21 August or 1 September, or on both occasions. Whatever the date, Ms Budd says that there are several reasons why police officers should not have demanded that she open her door. They include: -she could not have been in breach of an AVO that her neighbour took out against her because her disability prevents her from leaving her home; -her neighbour wanted to harass her by telling police she had breached the AVO; and -police officers know that her disability prevents her from speaking face to face with them and they should not have demanded that she open her door. 8 Elements of the complaint. Whether or not she was actually in breach of the AVO order is not the point. Neither is the motivation of her neighbour in contacting the police. The only potentially relevant point is that police officers, despite knowing of her disability, demanded that she open the door. If this matter went to a hearing, the onus would be on Ms Budd to establish that NSW Police were in breach of the ADA. Section 49M makes it unlawful for a person who provides services, to discriminate on the ground of disability by refusing to provide a person with those services or by providing the services on certain terms. Section 49M states that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 9 NSW Police left to one side the question of whether they were providing a service to Ms Budd when they knocked on her door on or about 21 August or 1 September 2004. Despite the absence of any submissions on this point, if this matter went to a hearing it would be necessary to define the "services" in question in order to determine whether those services had been refused or provided on certain discriminatory terms. (See IW v City of Perth (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.) Of particular relevance to this question is Sully J's decision in Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745. Although Russell's case concerned the race discrimination provisions of the ADA, the wording in the disability discrimination provisions is virtually identical. Sully J concluded that the Police Service (as it then was) is a public authority as defined in s 4(1)(e) of the ADA. That provision includes in the definition of services "services provided by a . . . public authority". His Honour set out the provisions of s 6 and 7 of the Police Service Act 1990. That Act has since been amended by the Police Service Amendment (NSW Police) Act 2002. The relevant Act is now the Police Act 1990, which establishes NSW Police. The provisions of ss 6 and 7 are in the same terms as the Police Service Act 1990. In particular under s 6(2)(a) of the Police Act 1990, one of the functions of NSW Police is to "provide police services for New South Wales." "Police services" are defined in s 6(3)(a) and (b) to include "(a) services by way of prevention and detection of crime and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . ." 10 Sully J held at [43] and [44] that: It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act. A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows: [1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act. [2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds. [3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way". 11 It is apparent from Sully J's decision, that a police officer will be providing "services by way of prevention and detection of crime" to members of the public when investigating an allegation that a criminal offence has been committed or is about to be committed. But they are not providing services to an individual suspect (in this case Ms Budd) until after that person has been arrested. Although the Supreme Court decision went on appeal to the Court of Appeal, that Court did not deal with the issue of the definition of "services." (Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002)). The Tribunal is bound by decisions of the Supreme Court. 12 Conclusion. In this case, police were investigating an allegation that Ms Budd was in breach of an AVO order. She was the suspect in relation to that investigation. Because officers of NSW Police are not providing services to alleged suspects unless and until that person has been formally arrested, NSW Police were not providing Ms Budd with a service within the meaning of that term in the ADA. If that is correct, then there was no breach of s 49M. Ms Budd has not provided a substantial reason for the Tribunal to grant leave for her complaint to proceed. Indeed, in our view, Ms Budd's complaint of discrimination on the ground of disability has no reasonable prospects of success and leave is refused. Second complaint 13 In relation to the second complaint, Ms Budd would have to prove that Sergeant Fiddick decided not to proceed with a prosecution in relation to alleged fraud by Ms Budd's sister and that the refusal was the refusal of a service to Ms Budd. The Tribunal considered a similar question in Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145 (29 June 2005). The following passage at [21] of that decision is relevant: . . . Consequently, the services in this case can be defined as "services by way of prevention and detection of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . ." However, those services do not include a decision as to whether or not to charge a person with an offence. In Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343, the Supreme Court of Tasmania decided in the context of the Anti-Discrimination Act 1998 (Tas) that when the Director of Public Prosecutions conducts criminal prosecutions, he is not providing services to the victims of crimes. Similarly, when police are determining whether or not to charge a person with a crime, they cannot be said to be providing services to the victims or to the community at large. 14 In Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34 at [4] the issue before the Full Court of the Supreme Court of Tasmania was whether a decision by the Director of Public Prosecutions not to prosecute a person for an alleged offence was the provision of a service under the Tasmanian legislation. The Full Court held at [4] that: The DPP holds office pursuant to the provisions of the Director of Public Prosecutions Act 1973, and is not an officer of any government department. When he conducts criminal prosecutions, he does not thereby provide services, goods or facilities to the victims of crimes. 15 Although NSW Police is a public authority, the Tribunal has previously decided that a decision not to commence a criminal prosecution does not amount to the refusal of a service to the alleged victim of the crime. Although not bound by its own decisions, the Tribunal's previous decision means that this complaint does not have any reasonable prospects of success. Ms Budd has not provided any other substantial reason for leave being granted. Orders 1. File 051068: Leave is refused. 2. File 051087: Leave is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

ANTI-DISCRIMINATION COMMISSIONER v ACTING OMBUDSMAN

1 This appeal concerns the scope of the jurisdiction of the Ombudsman. In August and September 2000, the Director of Public Prosecutions ("the DPP") wrote four letters to the Ombudsman in which he made a series of complaints about the conduct of the Anti-Discrimination Commissioner ("the appellant"). His four letters contained a total of twelve specific complaints. The respondent investigated those complaints. In relation to the first ten, she wrote a draft report and, subsequently, a final report. She made comments critical of the appellant in relation to six of those ten complaints. In relation to the last two complaints, she reached the stage of writing a draft report. In that draft report, she made comments critical of the appellant in relation to both of the relevant complaints. The appellant sued the respondent, seeking declarations to the effect that (i) the Ombudsman did not and does not have jurisdiction or power to investigate the matters that the DPP complained of; (ii) that the Ombudsman did not and does not have jurisdiction to complete or present any report in relation thereto; (iii) that the final report concerning the first ten matters of complaint was not authorised by the Ombudsman Act 1978; and, (iv) that the draft report concerning the other two matters of complaint was not authorised by that Act. At first instance, that application was dismissed. The learned primary judge took the view that the Ombudsman had the jurisdiction and power to investigate all the DPP's complaints and to complete and present draft and final reports in relation to them. On this appeal, the appellant contends that the Ombudsman did not have jurisdiction or power to investigate or report in relation to any of the complaints. The respondent contends that the investigations and reports were within power. The four matters of complaint which did not result in unfavourable comments by the respondent are not of direct relevance, since the appellant is not aggrieved by the outcome of the investigation of those matters of complaint.

2 At first instance, the appellant relied upon the jurisdiction conferred on this Court by the Ombudsman Act, s32(1), which reads as follows:

"32 (1) Where, in the course of, or in contemplation of, an investigation, the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or any interested party may apply to the Supreme Court for a determination of that question, and, on such an application being made, the Court may make such order as it considers appropriate."

No point was taken at first instance, or on this appeal, as to the investigation of the DPP's first ten complaints having been completed. It may be that s32(1) confers no jurisdiction in relation to completed investigations: Alice Springs Town Council v Watts (1982) 18 NTR 1 at 6. If so, the learned primary judge had no jurisdiction to grant any relief in relation to the DPP's first ten complaints, and this appeal cannot succeed in relation to them. However, as the question of the Ombudsman's jurisdiction in relation to those complaints was fully argued, we think it preferable to assume, for the purpose of determining this appeal, that the learned primary judge had jurisdiction in relation to the completed investigation of the first ten complaints, and the final report concerning them.

3 The facts are stated in detail in the judgment of the learned primary judge: Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24. It is not necessary to restate them in such detail now. The first ten matters of complaint related to a decision by the DPP not to proceed with a prosecution in relation to an alleged sexual assault upon a child. The child suffers from disabilities which restrict her ability to communicate information. The child's parents complained to the appellant about the DPP's decision not to proceed with the prosecution. The appellant treated their complaint as one disclosing possible discrimination on the grounds of age and disability, and decided to investigate it. On 11 May 2000, she wrote to the Secretary of the Department of Justice and Industrial Relations, Mr Bingham, saying that the parents "alleged discrimination on the basis of disability and age in the provision of services, goods and facilities", to their daughter by "the Office of the Director of Public Prosecutions". She went on to request Mr Bingham to provide a written response within fourteen days to an investigations officer in her office, Ms Newman.

4 The DPP holds office pursuant to the provisions of the Director of Public Prosecutions Act 1973, and is not an officer of any government department. When he conducts criminal prosecutions, he does not thereby provide services, goods or facilities to the victims of crimes. But Mr Bingham did not write back pointing these things out. He sent the appellant's letter to the DPP, and asked him to act for the Department. On 17 May 2000, the DPP wrote to the appellant advising that he was acting for the Department, and asking for a copy of the original complaint. He went on to say he noted that the complaint had been construed as one against him personally, and enquired whether a response was going to be invited from him. The appellant did not reply to his letter. Instead she wrote to Mr Bingham. She referred him to the Anti-Discrimination Act 1998, s61(1)(b), which relates to respondents to discrimination complaints. It provides that "The Commissioner may authorise a person ... nominated by a respondent to act on behalf of the respondent." She said she had not authorised the DPP to act on behalf of the Department. She said she was unable to say what the outcome would be if she were requested to allow him to act for the Department. She made the point that she had not received a reply from Mr Bingham to her earlier letter to him.

5 Her letter was forwarded to the DPP, who wrote to her again on 27 June 2000. In that letter he complained that the appellant had rudely and improperly communicated directly with Mr Bingham, despite having been told that he was acting for the Department. He put forward the view that the Anti-Discrimination Act, s61, should not be read as if only individuals authorised by the appellant were entitled to act on behalf of a respondent to a complaint of discrimination. He repeated his earlier request for a copy of the original complaint. He also requested particulars of the actions of the Department that were claimed to amount to discrimination or prohibited conduct. Once again, the appellant did not reply to the DPP's letter. On 14 July she again wrote to Mr Bingham. She did not supply the requested particulars. She told Mr Bingham she would not be supplying a copy of the complaint because the complainants had not consented to such a course. She enquired whether the Department would be responding to the complaint. She said that, if she did not hear otherwise from Mr Bingham, she would assume that the Department was content with the facts as stated by the child's parents, and would continue to investigate the complaint on that basis.

6 Although, in our view, he need not have done so, Mr Bingham wrote to the appellant on 20 July asking her to consider allowing the DPP to represent the Department. On 31 July she wrote back authorising him to do so. Her letter revealed that she followed a practice, whenever a respondent to a complaint requested her to authorise representation, of consulting with the complainant to determine whether the complainant had any objection to such a course, and that she had given the complainants in this case written authorisation to be represented by a solicitor without first consulting any respondent to their complaint about their request for her authorisation.

7 On 8 August, the DPP wrote to Ms Newman of the appellant's staff. Part of his letter was concerned with the fact that, in her correspondence with Mr Bingham, the appellant had made a request for a "response" to the complaint by the child's parents, whereas the Anti-Discrimination Act, s97(1), empowers the appellant to require a person "to provide specified information" as distinct from a general response. He told Ms Newman that she was not lawfully entitled to demand a "response" from the Secretary or any other person. Ms Newman wrote back to the DPP on 10 August. Her letter included the following:

"I take it from your letter that you will not be providing a response to the claim [sic]. Accordingly, I will now turn the summary of claim into a set of questions, which I hope will satisfy your urge to receive a request for 'specified information'."

8 The DPP's eleventh and twelfth matters of complaint related to the dismissal of a union official from his employment. That man made a complaint to the appellant, asserting that he had been dismissed as a result of giving evidence before a committee of the Parliament of Tasmania. Surprisingly, the appellant decided to investigate that complaint on the basis that it disclosed possible discrimination by the Parliament of Tasmania on the ground of industrial activity, political belief or affiliation, or political activity. After months of skirmishing with the President of the Legislative Council and the Speaker of the House of Assembly over the extent of her powers, the appellant wrote to them on 25 August 2000, purportedly requiring them to provide specified information, and to produce specified documents, pursuant to the Anti-Discrimination Act, s97. On 6 September 2000, the DPP replied to that letter on behalf of the President and the Speaker. He told her that he was acting for them, and referred to a hearing that had been held before the Anti-Discrimination Tribunal. He asked whether, following a ruling of that tribunal, the appellant was still investigating the dismissed man's complaint. He said that answers to the appellant's letter of 25 August would be considered upon receipt of her response. Once again, the appellant did not reply to the DPP's letter. Instead, she wrote to the President on 13 September, referring him to the Anti-Discrimination Act, s61, and telling him that he would need to apply to her for authorisation if he wished the DPP to act on his behalf during the investigation process.

9 The DPP complained that the appellant had accepted a complaint against him, when the nature of his office was such that it did not involve the "provision of services, goods and facilities" to the child alleged to have been sexually assaulted, or to any other individual. By virtue of s22(1)(c) thereof, the Anti-Discrimination Act applies, subject to certain exceptions and exemptions, to discrimination and prohibited conduct "against a person engaged in, or undertaking any, activity in connection with ... provision of facilities, goods and services". The critical question was not simply whether the DPP was engaged in the provision of facilities, goods or services, but whether the victim of an alleged crime, apparently willing to be a Crown witness, engages in or undertakes activity in connection with the provision of facilities, goods or services by the DPP. The respondent considered the role of the DPP in relation to criminal prosecutions, and concluded that it would be quite artificial to describe a decision not to prosecute as in any way relating to the provision of services, goods or facilities. Accordingly, she concluded that the appellant should not have accepted the complaint against the DPP in relation to his decision not to prosecute and that, in accepting that complaint, she had acted "contrary to law" within in the meaning of the Ombudsman Act, s28(1)(a). Her conclusion has since been vindicated: The Secretary of the Department of Justice and Industrial Relations v The Anti-Discrimination Commissioner [2003] TASSC 27.

10 The DPP complained that the appellant had failed to notify him within ten days of the receipt by her of the child's parents' complaint against him, as required by the Anti-Discrimination Act, s67. In fact, she had not directly notified him of that complaint at all. The respondent concluded that the wording of the complaint made it clear that part of it referred quite specifically to the DPP and that, once the appellant had accepted the complaint, she ought to have notified him within ten days of its acceptance. She concluded that the appellant had therefore acted contrary to law within the meaning of s28(1)(a). This conclusion related to an omission but, by virtue of the Ombudsman Act, s12(2)(a), "taking action" includes a reference to a failure to perform an act.

11 The appellant is not aggrieved by any comments made by the respondent in relation to these complaints. We therefore need not consider them.

12 The DPP complained that the appellant should not have written to Mr Bingham when she knew that he was acting as Mr Bingham's legal practitioner. The respondent took the view that the writing of a response to the DPP's letter not to the DPP, but to his client, involved a breach of etiquette, a lack of basic manners and a lack of observance of basic communication rules. She concluded as follows:

"As a matter of good administrative practice, the Commissioner ought to have replied directly to a person who wrote to her. A correspondent is entitled to a direct reply to a letter and it was discourteous of the Commissioner not to have responded directly to the DPP's letter, particularly as he had asked a question that related to him personally.

I am therefore of the opinion that the action of the Commissioner in not responding to the DPP's letter of 17 May 2000 but rather writing to his client was unreasonable within the meaning of s28(1)(b) of the Ombudsman Act."

13 The DPP complained that the appellant had formed the intention to treat the Anti-Discrimination Act, s61, as entitling her to "disallow" properly qualified legal practitioners from acting for their clients, and had acted on that intention. The respondent took advice as to the meaning of s61, and indicated that she preferred the interpretation favoured by the DPP, but decided it was unnecessary for her to determine the effect of that section. The respondent accepted that the appellant had demonstrated an intention to disallow properly qualified legal practitioners from acting for their clients and that, in doing so, she was acting unreasonably within the meaning of the Ombudsman Act, s28(1)(b).

14 The DPP complained that he had not been given the right to make submissions as to the child's parents being authorised to have legal representation, whereas the appellant had given the parents the opportunity to make submissions in respect of the proposed authorisation of representation for the Department. The respondent concluded that the appellant had been "wrong" - no doubt choosing that word because of the Ombudsman Act, s28(1)(g) - to consult the parents about Mr Bingham's request for representation. She based that conclusion on the premise that the parties to a discrimination complaint were entitled to legal representation. She said she believed it to be unnecessary and undesirable for other parties to be consulted as to that right.

15 The DPP complained that Ms Newman used wording that was offensive and inappropriate in her letter of 10 August 2000. This complaint relates to the sentence, "Accordingly I will now turn the summary of claim into a set of questions, which I hope will satisfy your urge to receive a request for 'specified information'." The respondent made comments critical of the wording of the DPP's letter of 8 August, but concluded that Ms Newman ought not to have responded as she did, and that she acted unreasonably within the meaning of the Ombudsman Act, s28(1)(b) in so responding.

16 The DPP complained that, after he wrote to the appellant on behalf of the President and the Speaker, she did not reply to him, but instead wrote to his clients. In her draft report, the respondent expressed the opinion that writing to the clients was unreasonable within the meaning of the Ombudsman Act, 28(1)(b). She pointed out that Parliament could not correspond on its own behalf, and must be entitled to do so through its chosen agent.

17 The DPP complained that the appellant had advised the President and the Speaker that the Anti-Discrimination Act, s61, had the effect that they needed to apply to her in writing for authorisation if they wished him to act for them. In her draft report, the respondent once again left open the question of the proper interpretation of s61. She concluded that it was unreasonable, within the meaning of the Ombudsman Act, s28(1)(b), for the appellant to attempt to force a body such as Parliament to seek her approval of representation by a legal practitioner.

18 At the conclusion of her report concerning complaints 1 - 10, the respondent made eight recommendations to the appellant. She recommended (i) that the appellant "discontinue" the complaint against the DPP, on the basis that there was no jurisdiction; (ii) that the appellant in future not accept complaints against the DPP relating solely to the exercise of his prosecutorial discretion; (iii) that the appellant strictly comply with the time limitations imposed by the Anti-Discrimination Act, particularly in respect of notification to parties of the acceptance of a complaint; (iv) that the appellant regard as respondents to complaints only those persons or organisations named by the complainant, unless there is no such person or organisation; (v) that the appellant recognise the right of a party to a complaint to be represented by a legal practitioner without requiring that party to seek her approval or provide reasons for being so represented; (vi) that the appellant review the wording of a "procedural note" that she had published in relation to legal representation; (vii) that she conduct correspondence with legal practitioners representing parties wherever practicable; and, (viii) that she ensure that future correspondence emanating from her office or staff be couched in language that is professional and polite.

19 Similarly, the draft report concerning complaints 11 and 12 concluded with recommendations that the appellant conduct correspondence with legal practitioners wherever practicable, and that she recognise the right of a party to a complaint to be represented by a legal practitioner without requiring that party to seek her prior approval or to provide reasons for being so represented.

The Ombudsman Act 1978

20 There is no doubt that the Ombudsman Act applies to the appellant. Schedule 1 thereto lists the government departments and other authorities to which it applies. Item 6 in that Schedule reads "Anti-Discrimination Commissioner appointed under the Anti-Discrimination Act 1998."

21 The provisions of the Ombudsman Act as to the investigation of complaints, and the consequences of such investigation, are as follows. Under s14(1), a complaint may be made in writing to the Ombudsman by an individual aggrieved by "an administrative action". The investigative jurisdiction of the Ombudsman is conferred by s12(1), which reads as follows:

"12 - (1) Subject to this Act, the Ombudsman may investigate any administrative action taken by or on behalf of a public authority."

22 Section 3, which sets out a large number of definitions, begins as follows:

"3 - (1) In this Act, unless the contrary intention appears -

'administrative action' has the meaning assigned to that expression by section 12 ...".

That is apparently a reference to s12(2), which reads as follows:

"(2) A reference in this Act to taking action includes a reference to -

(a) a failure or refusal to perform, or a delay in performing, an act;

(b) the formulation of a proposal or an intention; and

(c) the making of a recommendation (including a recommendation to a Minister) -

and, in this Act, administrative action means action taken in a matter of administration whether there was legal authority for that action or not."

23 On completion of an investigation, s28(2) requires the Ombudsman to "report his opinion and the reasons on which it is based, to the principal officer of the appropriate public authority", and empowers the Ombudsman to "make such recommendation with respect to that report as he thinks fit." Section 28(3) obliges the Ombudsman to send a copy of the report or recommendation to the responsible Minister. Section 28(4) empowers the Ombudsman to request the principal officer of an authority to give notification, within a specified time, of the steps that have been taken, or are proposed to be taken, to give effect to a recommendation in a report, or of the reasons why such steps have not been taken, or are not proposed to be taken. If it appears that no appropriate steps have been taken within a reasonable time after a report or recommendation, the Ombudsman may send the Premier a copy of the report or recommendation with any comments made by or on behalf of the relevant principal officer. Under s28(6), the Ombudsman may then lay a report before each House of Parliament on the relevant matters. Under s30, the Ombudsman is required to lay an annual report before each House of Parliament. Under s31, the Ombudsman may make special reports to the public in certain circumstances.

24 Section 23(6) prohibits the Ombudsman from making a report on an investigation that contains adverse or derogatory comments on a person without first giving that person an opportunity to appear and make representations, orally or in writing, in relation to the matter under investigation. Similarly, s23(7) prohibits the Ombudsman from making a report on an investigation that contains adverse or derogatory comments with respect to a public authority without first giving the principal officer thereof, and the individual principally concerned in the taking of the relevant administrative action, such an opportunity. No doubt the respondent had these provisions in mind when she prepared draft reports in relation to the DPP's complaints.

25 Section 28 contains the following relevant provisions in relation to reports by the Ombudsman:

"28 - (1) Where, as a result of an investigation carried out under this Act, other than an investigation carried out pursuant to a reference made under section 15 or section 16, the Ombudsman is of the opinion that the action to which the investigation relates -

(a) appears to have been taken contrary to law;

(b) was unreasonable, unjust, oppressive, or improperly discriminatory;

(c) was in accordance with a rule of law or a provision of an enactment or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory;

(d) was taken in the exercise of a power or discretion and was so taken for an improper purpose or on irrelevant grounds or on the basis of irrelevant considerations;

(e) was a decision that was made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;

(f) was based wholly or partly on a mistake of law or fact; or

he shall take such action specified in subsection (2) as in the circumstances of the case he thinks fit.

(2) Where, in the case referred to in subsection (1), the Ombudsman is of the opinion -

(b) that action can be, and should be, taken to rectify, or mitigate or alter the effects of, the action to which the investigation relates;

(c) that any practice in accordance with which the action was taken should be varied;

(f) that any other steps should be taken -

the Ombudsman shall report his opinion, and the reasons on which it is based, to the principal officer of the appropriate public authority, and may make such recommendation with respect to that report as he thinks fit."

26 Counsel for the appellant, Mr Maher, contended that s12(2) was ambiguous as to the scope of the activities that amount "administrative action" for the purposes of the Ombudsman Act; that it was appropriate to have regard to extrinsic material in order to establish the intended meaning of that term pursuant to the Acts Interpretation Act 1931, s8B; and that it was apparent from the relevant Minister's second reading speech and that Minister's published notes on clauses of the relevant bill that Parliament did not intend to authorise the Ombudsman to investigate any and all administrative action, but only "mal-administration". Mr Maher submitted that none of the relevant complaints related to "mal-administration". In relation to the complaints that led the respondent to the opinion that the appellant had taken action contrary to law, he submitted that the complaint related to a dispute as to statutory interpretation, and not to "mal-administration". In relation to the complaints which led the respondent to the opinion that actions had been taken that were unreasonable, he submitted that none of the administrative actions in question amounted to "mal-administration", and that the test of unreasonableness was that discussed in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 - 230. That case is authority for the proposition that an unreasonable administrative decision is ultra vires if it is one that no reasonable decision-maker could have made. As to the complaint that led the respondent to the opinion that the appellant had taken action that was wrong, Mr Maher submitted that the word "wrong" did not mean "mistaken", but, consistently with the concept of "mal-administration", referred to administrative action involving impropriety.

27 When the bill for the Ombudsman Act was introduced, it referred not to an Ombudsman but to "the Parliamentary Commissioner". The Minister's second reading speech contained the following in relation to "mal-administration":

"The function of the Parliamentary Commissioner is to investigate complaints about administrative actions of officials. In this respect the legislation of the other States is very similar. The Commissioner is only concerned with what may be termed mal-administration where certain procedures have not been followed, or where procedures are defective, or where there has been a delay or a failure to take into account certain facts before making a decision.

It is important to note that the Commissioner is not empowered to substitute his own decision for the decision of the Government department concerned. He does not act as an administrative appeals tribunal, nor as a court, but is able to record that a decision is wrong and has been arrived at by an incorrect or unfair procedure. The status and independence of the office of Parliamentary Commissioner strengthens and makes highly persuasive his report and recommendations. Because of the authority attached to the office of Parliamentary Commissioner, it would perhaps be an ill-advised Minister who did not give effect to the recommendations contained in the Commissioner's report, where an act of mal-administration has been proved.

Where the Commissioner completes his investigation and finds that there has been mal-administration under the heads set out in clause 28 of the Bill, he reports his findings and reasons to the departmental head or the principal officer of the authority concerned, and at the same time forwards a copy of the report to the responsible Minister."

28 The Minister's clause notes contain the following in relation to the definition of "administrative action":

"'Administrative action' is defined with reference to clause 12 which defines it to mean an action taken in a matter of administration whether there was legal authority for that action or not. The Bill does not define 'matter of administration'. No satisfactory definition has yet been formulated. Experience in the States and the Commonwealth is that it is better not to attempt a definition which might unduly limit the flexibility of the Commissioner. A reference to the taking of an action includes a reference to a failure or refusal to perform or delay in performing an act, the formulation of a proposal or an intention and the making of a recommendation."

29 The clause notes contain the following in relation to the sub-clause that became s28(1):

"This sub-clause lays down the procedure to be followed on completion of the investigation. Paragraphs (a)-(g) set out the circumstances of mal-administration. It attempts to present a complete catalogue of the cases in which an administrative action would be considered defective.

One item calls for specific comment - item (g) - that the administrative action was 'wrong'.

It is not intended to empower the Commissioner to question the merits of a decision where no element of mal-administration has intruded into the making of the decision. Rather it is intended to enable the Commissioner to question the propriety of an action by an official where the impropriety may not fall within one of the other categories specified in the sub-clause."

30 From the clause note in relation to the definition of "administrative action", it is clear that Parliament did not want to limit the flexibility of the Ombudsman. Certainly it was not intended that the Ombudsman would take on a merits review function, as the comment in relation to cl 28(1)(g) makes clear. Subject to that jurisdictional limitation however, we think Parliament intended to confer a very wide jurisdiction on the Ombudsman. It is clear from the reference to "mal-administration" in relation to cl 28(1) that the Minister was using that term as a shorthand way of referring to administrative action tainted by any of the evils listed in that sub-clause. The second reading speech and the clause notes, taken as a whole, do not evince any intention to restrict the Ombudsman's powers to administrative actions involving something called "mal-administration", rather than all administrative actions tainted by, or possibly tainted by, one or more of the evils listed in s28(1).

31 In our view the definition of "administrative action" in s12(2) is clear, unambiguous and wide. There is no reason not to give those words their ordinary, literal, grammatical meaning. The extrinsic material on which the appellant sought to rely confirms the interpretation conveyed by the ordinary meaning of s12(2): Acts Interpretation Act, s8B(1)(c).

32 The Acts Interpretation Act, s8A(1), requires us to prefer an interpretation that promotes the purpose or object of the Ombudsman Act to one that does not promote that purpose or object. As appears from the long title to the Ombudsman Act, one of its main purposes is "to make provision ... for the investigation of complaints with respect to administrative action taken by or on behalf of certain government departments and other authorities". That purpose is facilitated by adopting a wide definition of "administrative action", thereby giving the Ombudsman a wide and flexible jurisdiction.

33 In Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 367 - 368, Kirby P (as he then was), with whom Sheller and Powell JJA agreed, speaking of the powers conferred by the Ombudsman Act 1974 (NSW), said the following:

"Those powers, as the Ombudsman Act reveals, are, as they ought to be, extremely wide. They are not powers which this Court should read down. They are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability ... Sadly, the experience of the past (and not only the past) has been of the occasional misuse and even oppressive use of administrative power. One modern remedy against such wrongs has been the creation by parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may be expected that the Ombudsman will conform to the statute establishing his office, a large power is intended. The words of the Ombudsman Act should be ... given ample meaning."

34 In Victoria, where the Ombudsman Act 1973 (Vic) contains similar provisions to its Tasmanian counterpart, there is a strong line of authority establishing that the words "administrative action" and "a matter of administration" should be interpreted so widely that the Ombudsman has jurisdiction to investigate any subject that arises in the performance of the executive function of government, as opposed to the judicial and legislative functions of government, subject to any statutory exceptions: Booth v Dillon (No 1) [1976] VicRp 23; [1976] VR 291; Glenister v Dillon [1976] VicRp 57; [1976] VR 550; Glenister v Dillon (No 2) [1977] VicRp 17; [1977] VR 151; Booth v Dillon (No 3) [1977] VicRp 16; [1977] VR 143.

35 Parliament recognised that some complaints made to the Ombudsman might be trivial, frivolous, or not appropriate for investigation, and therefore conferred discretions to refuse to entertain a complaint and to refuse to continue an investigation. Those discretions were conferred by s21(1), which reads as follows:

"21 - (1) The Ombudsman may refuse to entertain a complaint, or, having commenced to investigate a matter raised in a complaint, may refuse to continue the investigation, if he is of the opinion -

(a) that the matter raised in the complaint is trivial;

(b) that the complaint is frivolous or vexatious or is not made in good faith;

(c) that the aggrieved person does not have a sufficient interest in the matter raised in the complaint; or

(d) that, having regard to all the circumstances of the case, the investigation, or the continuance of the investigation, of the matter raised in the complaint is unnecessary or unjustifiable."

The Ombudsman plainly has a discretion. If, for example, a complaint is trivial, or not made in good faith, the Ombudsman might still choose to investigate it and write a report. An important point might be raised in a trivial context. A complaint not made in good faith might expose a matter of public importance. It is evident from the discretionary powers conferred by s21(1) that Parliament must not have intended the Ombudsman's jurisdiction to be confined, by implication, to matters considered sufficiently serious to involve something called "mal-administration".

36 Such a jurisdictional restriction would be ridiculous in practice. Until the Ombudsman fully investigates a complaint, it must often be impossible to make any assessment as to the degree of seriousness, impropriety or evil involved in the conduct complained of. For example, a complaint of unreasonableness might need to be fully investigated before it could be established whether the action complained of involved unreasonableness to the degree discussed in Wednesbury. If, as Mr Maher submitted, the jurisdiction of the Ombudsman were limited to matters involving "mal-administration", the Ombudsman would often have to undertake and complete a full-scale investigation, not knowing whether he or she had jurisdiction to investigate the complaint. The result would sometimes be a conclusion that there had been no jurisdiction to commence an investigation in the first place. That is such an absurd result that there is no reason to think Parliament would have intended it.

37 For these reasons, we reject Mr Maher's submissions as to "mal-administration". In our view the Ombudsman has jurisdiction to investigate any subject that arises in the performance of the appellant's performance of functions within the executive function of government, subject to any statutory exceptions.

38 In his written submissions, Mr Maher submitted that the combined effect of s12(1) and s20 was to deprive the Ombudsman of jurisdiction. Although s12(1) empowers the Ombudsman to investigate any administrative action taken by or on behalf of a public authority, it does so "Subject to this Act". Those words must be taken as referring (inter alia) to s20, which reads as follows:

"20 - (1) Where an aggrieved person has exercised, or exercises, a right to cause the action to which a complaint relates to be reviewed by a court or by a tribunal established under an Act, the Ombudsman shall not investigate, or continue to investigate, the action unless he is of the opinion that there are special reasons justifying its investigation or its further investigation.

(2) Where the Ombudsman is of the opinion that an aggrieved person has or had a right to have the action to which a complaint relates reviewed by a court or by a tribunal established under an Act, but has not exercised the right, the Ombudsman shall not investigate, or continue to investigate, the action unless he is of the opinion that, in all the circumstances of the case, the failure to exercise the right is not or was not unreasonable.

(3) Where, in respect of the action to which a complaint relates, the Ombudsman is of opinion that adequate provision is made under an administrative practice for the review of action of that kind, he may refuse to investigate the action, or investigate it further -

(a) if the action has been, is being, or is to be, reviewed in accordance with the practice at the request of the aggrieved person; or

(b) if the Ombudsman is satisfied that the aggrieved person is entitled to have the action reviewed in accordance with that practice and it would be reasonable for the aggrieved person to have it so reviewed."

39 Mr Maher did not mention this point in his oral argument, but said the following in his written outline of submissions:

"Section 20: This is an unambiguous indication that the Parliament was intending to limit the Ombudsman's authority in the sense that if a complainant has an alternative remedy, that remedy should be exhausted. The DPP had alternative remedies (a) under s 64(1) and, ultimately - if the complaint were to be referred to the Tribunal, under the scheme embodied in Part 6, Div 4 of the Anti-Discrimination Act 1998, and (b) by way of judicial review."

40 No support for this submission is provided by s20(1), since the DPP did not institute any proceedings concerning the appellant's administrative action before any court or statutory tribunal. No support for the submission is provided by s20(3) either, since that subsection does not deprive the Ombudsman of jurisdiction, but merely confers a discretion to refuse to investigate an administrative action, or to investigate it further. It is therefore necessary to consider the submission only in relation to s20(2), which relates to unexercised rights.

41 Under the Anti-Discrimination Act, s64(1), the appellant has the power to reject a discrimination complaint in certain listed circumstances. Under s64(1)(a), she may reject such a complaint if in her opinion it is misconceived. Under s64(1)(b), she may reject such a complaint if it does not relate to discrimination or prohibited conduct. Certainly the DPP could have asked the appellant to reject either of the relevant discrimination complaints under s64(1). But Mr Maher's reliance on that subsection is misconceived. The appellant is not a court or a tribunal. The Ombudsman is deprived of jurisdiction by the Ombudsman Act, s20(2) only when there is a right of a review by a court or a tribunal.

42 Under the Anti-Discrimination Act, Pt 6 Div 4, provision is made for the Anti-Discrimination Tribunal to conduct inquiries in relation to complaints made to the appellant. Under s78(1) such inquiries can be initiated only by the appellant or an "authorised person". That term is defined in s3 to mean a person authorised by the appellant. Mr Maher's reference to Pt 6 Div 4 was misconceived. The DPP could not initiate any action before the Anti-Discrimination Tribunal in relation to any of the matters he complained of. Furthermore, the nature of most of his complaints was such that that tribunal would not have jurisdiction. It may only conduct inquiries in relation to the substance of complaints made to the appellant about discrimination or prohibited conduct.

43 Although Mr Maher submitted that the DPP had an alternative remedy "by way of judicial review", the Judicial Review Act 2000 was not proclaimed to commence until 1 December 2001, long after the DPP made his complaints to the Ombudsman. In relation to some of the matters he complained of, the DPP could perhaps have sought a prerogative writ or equitable relief. However, the Ombudsman Act, s20(2) permits the Ombudsman to investigate, or to continue to investigate, administrative action if he or she is of the opinion that, in all the circumstances of the case, the failure to exercise the right to have the action reviewed by a court is not, or was not, unreasonable. The appellant bore the onus of proof in the proceedings at first instance. There was no evidence tending to prove that the Ombudsman lacked the opinion required for an investigation to be instituted or continued if s20(2) applied. Even if one or more of the DPP's complaints was of such a nature that a court had jurisdiction to grant a prerogative writ or some sort of equitable relief, this argument must fail because the appellant made no attempt to discharge her onus of proof.

44 Mr Maher submitted that, under s32(1), the Court has jurisdiction not just to determine whether the Ombudsman had jurisdiction to conduct an investigation, but also to review any opinions of the Ombudsman as to any administrative action being contrary to law, unreasonable, or wrong. We disagree. If Parliament had intended to confer a jurisdiction to review opinions formed by the Ombudsman, which would necessarily involve questions of both fact and law, we think it would have said so in clear language. In Alice Springs Town Council v Watts (supra), O'Leary J considered a similarly worded provision, and concluded that it was "clear from the wording of that section that it is designed solely to determine whether the Ombudsman has jurisdiction to conduct a particular investigation." Further, if Mr Maher's submission were correct, the result would be that the review jurisdiction could only be exercised in litigation in which the Ombudsman's jurisdiction was challenged, and not when the Ombudsman's jurisdiction was unchallenged and undoubted. Such a situation would be absurd. Parliament obviously did not intend it. However, there is a shorter answer to this submission by Mr Maher. In the originating application, his client sought declarations that the respondent lacked jurisdiction, but did not seek any relief by way of review or reversal of the respondent's opinions. The submission relates to a controversy that is not the subject of this litigation. In any event, we are inclined to think that all the opinions expressed by the respondent were correct and reasonable.

45 The respondent has and had the jurisdiction that she claimed to have. For these reasons, the appeal is dismissed.