Harrison v Commissioner for Housing [2003] ACTSC 22

The oppression and, in some areas of the continent, the obliteration or near obliteration of the Aborigines, were the inevitable consequences of their being dispossessed of their traditional lands.

3. Mr Harrison suffers from a serious and life threatening medical condition, and he also has sincere grievances in relation to long-standing issues relating to the provision of health services to Aboriginal people. The Court does not question Mr Harrison's sincerely held views concerning long-term and systemic discrimination over generations in the provision of services to Aboriginal Australians. The task of the Court in this appeal, however, is to determine only the question of the specific complaints of discrimination that were referred by the Discrimination Commissioner to the Discrimination Tribunal and determined by the Deputy President.

4. I should make the observation that the ACT Government Solicitor's Office, which has represented the respondent, has recognised the difficulties Mr Harrison faces as a litigant in person, and has provided assistance to him in preparing this matter for appeal, including taking on the task of preparing the Appeal Book. This reflects the long-standing model litigant policy adopted by the ACT Government Solicitor.

5. Mr Harrison lodged a complaint with the Discrimination Commissioner on 30 October 2000. The complaint was constituted by a form issued by the Commissioner and filled in by Mr Harrison, and accompanying documentation. This material was before the Tribunal (Exhibit 3) and was contained in the Appeal Book at 157-199. The Discrimination Commissioner referred the complaint to the Tribunal pursuant to s 87 of the Discrimination Act, and on 27 July 2001 the Tribunal made orders, which required Mr Harrison to further identify the nature of his complaints. An attempt seems to have been made to have the matter resolved by the Commissioner, but this was unsuccessful, and the matter came on for hearing before the Deputy President on 29 and 30 April 2002.

6. The Deputy President made the point in his reasons that it is necessary before a complaint can be properly dealt with that the nature of the complaint be specified with sufficient particularity. He referred to the decision of Crispin J in De Domenico v Marshall [2001] ACTSC 52; (2001) 146 ACTR 30, where his Honour said at [7]:

... it is generally desirable for the allegations forming the substance of the complaint to be stated with due clarity and for a distinction to be made between the allegations so stated and the evidence relating to any such allegations.

7. Mr Harrison has provided extensive documentation to the Tribunal, and the Deputy President felt it necessary in his reasons to clarify the nature of the complaints. He said at [7]:

... After having reviewed the material filed with the Tribunal by the complainant, as well as the complaint and supporting material lodged with the Discrimination Commissioner the Tribunal identified a number of matters which appeared to constitute the particulars of four complaints of unlawful conduct under the Discrimination Act. The complainant confirmed that they were the following:

(1) that on or about 10 October 2000 the respondent discriminated against the complainant by subjecting the complainant to a detriment, by causing or permitting him to be injured by a syringe, in relation to accommodation occupied by the complainant at Flat 8 Burnie Court, Lyons, contrary to section 21(2)(c) of the Discrimination Act ("the needle stick incident");

(2) that on or about 5 August 2000 the respondent treated the complainant unfavourably in the terms on which he was offered accommodation because of his race, sexuality and an impairment from which he suffered by requiring him to complete a form of registration for public rental housing assistance that required him to disclose his race, contrary to section 21(1)(b) of the Discrimination Act ("the request for information regarding race");

(3) that on or about 24 October 2000 the respondent treated the complainant unfavourably in the terms on which he was offered accommodation because of his race, sexuality and an impairment from which he suffered by offering him accommodation at 19/2 Owen Flats, Lyneham which was unfit for occupation by him, contrary to section 21(1)(b) of the Discrimination Act ("the offer of accommodation incident");

(4) that in around October 2000 the respondent subjected the complainant to a detriment by the conduct alleged in paragraphs (1) and (3) above on the ground that the complainant had reasonably asserted rights that he had under the Discrimination Act contrary to section 68(1)(a) and (e) of the Discrimination Act ("the victimisation allegation").

8. At the hearing of this appeal Mr Harrison confirmed that these four propositions represented his complaints, and having reviewed the material it seems to me that the Deputy President has succinctly stated the four concrete propositions that emerge from the mass of material before him. During the conduct of the appeal Mr Harrison indicated that he no longer wished to proceed with his complaint relating to the needle stick incident.

9. Section 108D(1) of the Discrimination Act provides that:

A party to a tribunal hearing may appeal to the Supreme Court on a question of law from a decision of the tribunal in that hearing.

10. The plain meaning of this section is that appeals from the Tribunal to this Court are limited to appeals on a point of law, and that a general merits review is not available. This intention is confirmed when recourse is had to the second reading speech. Section 108D was introduced to the Act by the Discrimination Amendment Act 1996 (No 67 of 1996), and in the ACT Legislative Assembly the then Attorney General, Mr G Humphries, said:

Consistent with the provisions applying to other Tribunal hearings in the ACT, the only appeal from a decision of the Tribunal will be on a question of law, to the Supreme Court.

It should be remembered that the amendment was repealing an earlier regime whereby an appeal on the merits lay from the Discrimination Commissioner to the Administrative Appeals Tribunal, and then on a point of law to this Court.

11. It seems clear to me that the legislative intent here is that appeals from the Discrimination Tribunal to this Court are to be limited to appeals on a point of law, as is common practice throughout Australia. This would normally be the end of the matter, but the question in the Australian Capital Territory has become, needlessly it seems to me, complicated by certain remarks of Wilcox J in the ex tempore reasons for decision in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101. The question there was whether the Supreme Court had jurisdiction to review a decision of a magistrate in relation to a costs order. His Honour there said at 104:

During the course of argument reference was made to s 20 of the Supreme Court Act. That section is as follows:

"Jurisdiction and powers of the Supreme Court

(1) The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory

(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal."

The words of par (a) of subs (1) are extremely broad. They include all appellate jurisdiction that is necessary to administer justice in the Territory.

The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory.

12. The Full Court held that an appeal did lie on the question of costs due to the effect of s 20 of the Supreme Court Act 1933 (the Supreme Court Act). Wilcox J considered the grant of appeal power from the Magistrates Court to this Court in s 219B of the Magistrates Court Act 1930 (the Magistrates Court Act), but expressed some doubt on whether the conferral of jurisdiction to appeal from the dismissal of an information included the ability to appeal on the costs order accompanying such a dismissal, even though pursuant to s 244(c) of the Magistrates Court Act any order for costs is part of the order for dismissal. This would have provided a conventional basis for a holding that the Supreme Court had jurisdiction to consider the appeal.

13. The potential effect of this construction has been noted with concern by a number of members of this Court. In Rose v Snape [2000] ACTSC 115 Higgins J, as he then was, said at [47-48]:

It now seems that, if Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice.

Is leave no longer necessary for Small Claims Appeals? May appeals from the Administrative Appeals Tribunal be brought on the merits? Should this Court now regard itself as having jurisdiction to try summary offences? If so, by Judge alone or by Jury?

14. In FAI Properties Pty Limited v Nationwide Travel Canberra Pty Limited [2000] ACTSC 82, Crispin J was considering the nature of an appeal from the Tenancy Tribunal. Section 58 of the Tenancy Tribunal Act 1994 (the Tenancy Tribunal Act) provides that an appeal may lie to this Court on a "question of law from a decision of the Tribunal in that hearing". His Honour held at [15] that:

there can be little doubt that the express reference to a right to appeal on a question of law impliedly excludes an appeal on any other ground.

15. His Honour distinguished Kelly v Apps on the basis that the section of the Magistrates Court there in question did not expressly limit appeals to a point of law.

16. In FAI Properties Pty Limited v Apostolopoulos [2002] ACTSC 58 Spender J also gave effect to s 58 of the Tenancy Tribunal Act which limits appeals from the Tenancy Tribunal to this Court to appeals on a point of law. His Honour also distinguished and declined to extend the doctrine of Kelly v Apps. He expressed the view at [14] that s 20 of the Supreme Court Act:

should be regarded as confirming the width of the power of the Supreme Court in respect of jurisdiction it possesses, but not as an express grant of power to rectify any wrong that might occur in the administration of justice by any court in the Australian Capital Territory.

Rights of appeal can only be conferred by statute, and the extent of those rights is to be determined by the terms of the enactment conferring those rights. The Tenancy Tribunal Act confers a right of appeal on questions of law. The orthodox and ordinary construction of that express conferral of power in a particular and defined circumstance involves the conclusion that, in cases where a right of appeal is not granted, as in this case, in respect of questions of fact or questions of mixed fact and law, an appeal does not lie in respect of those matters. Such an approach is a manifestation of the well-known expressio unius principle.

18. It seems to me with respect that his Honour is making a very important point here, particularly in respect of rights of appeal from Tribunals. The Australian Capital Territory is a self-governing body politic within the Australian Commonwealth (Australian Capital Territory (Self Government) Act 1988 (Cth)), and the Legislative Assembly has broad powers to make laws for the peace, order and good government of the Territory, subject always to the overriding powers of the Commonwealth Parliament consistent with the status of a Territory. The Legislative Assembly over the years of self-government has created, modified and abolished various Tribunals and methods of appeal from Tribunals to this Court. This is entirely appropriate and is a matter for the legislature as the elected representative of the community. It seems to me to be an inappropriate assertion of judicial power to construe s 20 of the Supreme Court Act in such a broad and expansive way as to deny to the Legislative Assembly the power exercised by other legislatures to create and modify tribunals or inferior courts, and to determine the basis on which appeals from such bodies may lie to this Court.

19. The New South Wales Supreme Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales" (s 23, Supreme Court Act 1970 (NSW)), but this does not limit the ability of Parliament to provide for particular appeal provisions from specialist Tribunals.

20. It seems to me that the broad doctrine of Kelly v Apps has not been applied in subsequent decisions of this Court. The sole exception may be De Dominico v Marshall, where Crispin J seems to have formed the view that the expanded doctrine could apply, although these views are strictly dicta as his Honour had found the decision under review to be bad in law.

21. I am of the view that an appeal from the Discrimination Tribunal to this Court is limited, as laid down in s 108D(1), to an appeal on a point of law. It seems to me that the Deputy President in his reasons properly and correctly set out the law that he had to apply in considering Mr Harrison's complaint [32-37], and then applied that law appropriately to the facts as he had found them to be [38-53]. I can see no error in law, and it follows that the appeal should be dismissed.

22. I should add that, even if I be wrong about the nature of the appellate jurisdiction, it seems to me that the appellant has also failed to show any error of fact, or error of mixed fact and law which would have satisfied me that the decision of the Tribunal should be set aside. The Deputy President set out his findings of fact in relation to each of the complaints, and the material now before me does not seem to put these in any doubt. In respect of the needle stick incident, which Mr Harrison said he now abandons, the Deputy President found that there was evidence that the flat had been cleaned before it had been allocated, and so there was no evidence to find that the respondent was responsible for any injury that may have occurred due to a needle being left in the premises. During the appeal, the only issue that Mr Harrison raised in relation to this ground was his general disapproval of needle exchange programmes.

23. In respect of the request for information concerning race, the learned Deputy President found that the request for information was contained in the registration form that the complainant filled in on 5 August 2000. This included question 18 which said; "Are you or any of the people named above of Aboriginal or Torres Strait Islander origin? This question is optional - it will only be used for statistical purposes." The Deputy President found that this was included in the form in order for the respondent to better understand the need for housing assistance for persons of Aboriginal origin. He found that, although this potentially treated a person of Aboriginal or Torres Strait Islander background differently (even though the question is clearly stated to be optional), there was no evidence that as a result of this different treatment such a person is treated less favourably, and indeed, the purpose of the question was to provide special and additional assistance. There was nothing put before me to challenge this finding.

24. In respect of the offer of accommodation incident, the Deputy President found that the original offer of accommodation was unsuitable and inappropriate, even though it is clear from the evidence before both the Tribunal and the Court that at the time of his application Mr Harrison was significantly in arrears to the respondent in respect of unpaid rent arising from previous tenancies, and it would have been open to the respondent to decline to provide him with housing assistance due to this debt. The Deputy President, after reviewing all the evidence, found that there was no objective evidence upon which to base a finding that Mr Harrison was treated unfavourably due to relevant attributes of race or sexuality. He found that Mr Harrison was offered certain properties which were unsuitable, and then found a suitable property. There has been no evidence in this appeal to challenge these findings.

25. Similarly, the Tribunal found that there was no evidence of victimisation.

26. The appeal should be dismissed. The respondent did not seek costs, and no order for costs is made.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the respondent: ACT Government Solicitor