HEARING DATE/S: 1 April 2019; written submissions filed 16 April 2019 and 8 May 2019

Human Rights - Jurisdiction and Procedure - Tasmania - Anti-Discrimination Tribunal - Claim of discrimination made against Coronial Division of Magistrates Court - Tribunal dismissed complaint due to immunity provisions and lack of jurisdiction - Application of immunity provisions when the complaint is brought against an organisation - Whether court an "organisation" - Nature of organisational liability -- Whether application of an immunity provision involving exception of 'bad faith' should have been determined at inquiry stage rather than as a preliminary issue - Tribunal assumed facts established - No suggestion of 'bad faith' - Procedural fairness - Whether reasons exposed error in relation to onus of proof.

Coroners Act 1995 (Tas), s 67.

Magistrates Court Act 1987 (Tas), s 10A.

Anti-Discrimination Act 1998 (Tas), ss 3, 4, 14, 17(1), 101, 104.

Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104, 169 FCR; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, 135 FCR 105, referred to.

Courts and Judges - Judges - Immunity from proceedings - Complaint of discrimination brought against Coronial Division of Magistrates Court - Whether immunity provisions apply to forestall the proceedings - Proceedings against a court or a division of a court are in effect brought against its judicial officers - Construing immunity clauses - Immunity protecting magistrates applies to a coroner who was appointed as a temporary magistrate but exercising powers of coroner - Immunity clause for magistrates not inconsistent with immunity clause for coroners and both may have application.

Coroners Act 1995 (Tas), ss 13(3), 67.

Magistrates Court Act 1987 (Tas), ss 3, 10A.

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (1995) 223 CLR 1; Re East; Ex Parte Nguyen [1998] HCA 73; (1998) 196 CLR 354; Rajski v Powell (1987) 11 NSWLR 522; Forge v ASIC [2006] HCA 44, 228 CLR 45; Fingleton v The Queen [2005] HCA 34, 227 CLR 166; Krakowski v Eurolynx Properties Pty Ltd (1995) 183 CLR 563; Winters v Fogarty [2017] FCA 51; Commissioner of Police for NSW v Eaton [2013] HCA 2, 252 CLR 1; Ferdinands v Commissioner of Public Employment [2006] HCA 5, 225 CLR 130, considered.

Attorney-General as Intervenor: J Rudolf and D Osz

Attorney-General as Intervenor: Office of the Solicitor General

Judgment Number: [2021] TASSC 10

BENJAMIN JAGO v ANTI-DISCRIMINATION TRIBUNAL, MAGISTRATES COURT OF TASMANIA (CORONIAL DIVISION) AND ATTORNEY-GENERAL OF TASMANIA

1. This appeal is against an order by the Chairperson of the Anti-Discrimination Tribunal, Mr R. Webster dismissing a complaint against the Magistrates Court of Tasmania (Coronial Division) on the basis that the Tribunal did not have jurisdiction to determine the complaint. The complaint was made by the appellant in these proceedings, Benjamin Jago and arose from the death of his partner, Mr Nathan Lunson, who took his own life on 11 January 2015. At the time of Mr Lunson's death, Mr Jago and Mr Lunson had been together in a relationship for five years. The complaint named the Coroner's Office as one of two respondents. The aspect of the complaint against the Coroner's Office concerned the responses of the Office to his situation in the days following his late partner's death.
2. Mr Jago alleges he contacted the Coronial Division on Monday, 12 January 2015. During phone calls on that day he was advised he would not be recognised as Mr Lunson's next of kin. He was also advised that the only way his and Mr Lunson's relationship could be recognised was if it was registered with the Office of Births, Deaths and Marriages. Mr Jago contacted that Office and was informed the relationship could only be registered if both parties agreed. Mr Jago also alleges the Coronial Division advised he would be able to view Mr Lunson's body, as Mr Lunson's mother had given permission for this to occur. However, Mr Lunson's body was released before this could take place. Mr Jago did not receive notification about the release of Mr Lunson's body. He sought to obtain the cause of death report from the Coronial Division, but this was unsuccessful despite communicating with them in writing, and despite a "freedom of information request." He states in his complaint that he believed he was treated in this way because he and Mr Lunson were in a homosexual relationship.
3. The Chairperson of the Tribunal dismissed the complaint due to the application of two immunity provisions: s 67 of the Coroners Act 1995 and s 10A of the Magistrates Court Act 1987 which resulted in the conclusion that the Tribunal did not have jurisdiction to determine the complaint.

The Commissioner's investigation and referral to the Tribunal

1. The complaint was made to the Anti-Discrimination Commissioner on 22 June 2015 and was investigated by the Commissioner. Facts alleged by the appellant were disputed by the Attorney-General and information was provided to the Commissioner in response to the complaint. The investigation was completed on 30 November 2016 and the decision was made to refer the complaint to the Anti-Discrimination Tribunal for inquiry pursuant to s 78 of the Anti-Discrimination Act 1998 (the AD Act). The Commissioner determined under s 71(1)(c) of the AD Act that the complaint should proceed to an inquiry because the complaint raised possible breaches of that Act, and the Commissioner believed that the complaint could not be resolved by conciliation. The Commissioner provided a referral report dated 12 December 2016 which set out that the following allegations gave rise to possible breaches of that Act:
   • the appellant was not recognised as "senior next of kin" despite being in a personal relationship as defined in the Relationships Act 2003;
   • he was provided with incorrect information about registering his relationship with Mr Lunson, he was told to contact Births, Deaths and Marriages and to register the relationship saying it was the only way he could be Mr Lunson's next of kin; and
   • he was not able to view Mr Lunson's body before it was released by the Coroner to Mr Lunson's mother.
2. The coroner referred to is Coroner Mr Carey, and evidently he signed the "certificate of burial/cremation", releasing the body of the deceased. The officer of the Coronial Division said to be responsible for information provided to the appellant on behalf of the Coronial Division is Sergeant Smith, the Coroner's Associate. The complaint had named the respondent (regarding this aspect of the complaint) as the "Coroner's Office". The Commissioner identified the respondent as being the Magistrates Court of Tasmania (Coronial Division). The Commissioner identified that the complaint potentially raised breaches of the Act in terms of direct discrimination (s 14 of the Act) and prohibited conduct (s 17(1)) being conduct that was offensive, humiliating, intimidating, insulting and/or ridiculing, on the basis of sexual orientation, lawful sexual activity and relationship status in the administration of any law of the State.
3. The Commissioner noted in the referral report that the Coronial Division may be liable under s 104 of the Act for the alleged conduct of their members, officers, employees and agents. Section 67 of the Coroners Act 1995 was referred to as providing immunity to a coroner and people acting under an authority given under the Coroners Act, unless it was an act done in bad faith. It was noted that there was no evidence of bad faith.
4. 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. In this case, the parties do not take issue with the Commissioner's identification of the sections of the AD Act which may have been contravened if the allegations in the complaint were substantiated at an inquiry.

1. In the proceedings before the Tribunal, the Attorney-General was given leave to intervene. The Attorney-General challenged the Tribunal's jurisdiction to determine the complaint against the respondent. It was agreed by counsel for the appellant and counsel for the Attorney-General that this challenge would be dealt with as a preliminary issue by way of written submissions. It was argued for the Attorney-General that, as a consequence of immunity provisions in the Coroners Act and the Magistrates Court Act, the Tribunal did not have jurisdiction.
2. The Chairperson of the Tribunal determined the preliminary issue and found that the immunity in s 67 of the Coroners Act applied in this case. That immunity is subject to an exception of bad faith. The Chairperson noted there was no allegation or suggestion of bad faith. Further, he considered the immunity in s 10A of the Magistrates Court Act and whether that section may apply to coroners exercising the function, powers and jurisdiction of the office of coroner under the Coroners Act. It was submitted that, as Coroner Carey was a coroner, not a magistrate, and was exercising the jurisdiction of the Coroners Act as a coroner, not as a magistrate, the immunity cannot apply to him. The Chairperson concluded that while Coroner Carey was a coroner for the period in question, his Honour was a temporary magistrate. It was determined that in the performance of his office as a temporary magistrate he was protected by the immunity set out in s 10A.
3. The Chairperson considered whether the immunity in s 10A of the Magistrates Court Act may apply when redress was not sought against a magistrate personally, but sought against the Coroners' Office, renamed the Magistrates Court of Tasmania (Coronial Division). Relevant to the application of this immunity, the learned Chairperson stated as follows:

"60 The complainant does not seek redress against Sergeant Smith or Coroner Carey personally, but he seeks redress against the Coroner's Office which the ADC renamed the Magistrates Court of Tasmania (Coronial Division). That entity, if it is liable, can only be liable via s104 of the Act. The Magistrates Court, of which the Coronial Division is a division, is not a legal entity like, for example, a corporation, a local council[30] or a Government Business Enterprise.[31] It consists of individuals, namely the Chief Magistrate, the Deputy Chief Magistrate and the magistrates. Accordingly if a person wishes to bring an action against a court, then it must bring that action by naming all the judges, or the magistrates, that make up the court at the relevant time. If the Magistrates Court can be liable as an organisation via s104 of the Act, which I note the intervenor does not admit, then it must be all of the magistrates who are liable. ... Further the enforcement of any order under s90 made against the Magistrates Court, could only be against all the magistrates given s3A(3) of the Magistrates Court Act 1987.

61 The magistrates have an immunity in performing the functions and exercising the powers of the office of magistrate. Accordingly, insofar as any of the magistrates might have responsibility for the conduct which is complained of in this case then such responsibility could only have arisen in the course of any one or more of them performing their functions and accordingly it follows the immunity applies.

1. s 19 of the Local Government Act 1993
2. s6 of the Government Business Enterprises Act 1995"
3. The Chairperson went on to note that if the Magistrates Court (Coronial Division) is the correct respondent, as argued by the appellant, rather than the Magistrates Court of Tasmania, as argued on behalf of the intervenor, the s 10A immunity applies because the governing authority of the Coronial Division is the Chief Magistrate (Coroners Act, s 7).
4. The learned Chairperson determined that the immunity in s 67 of the Coroners Act and the immunity in s 10A of the Magistrates Court Act apply to the circumstances of this case, and that "accordingly the Tribunal does not have jurisdiction to determine this complaint."

1. There is a single ground of appeal asserting that multiple errors were made by the Chairperson of the Tribunal, described as follows:

"1 The ADT erred in law, fell into jurisdictional error, alternatively constructively failed to exercise its jurisdiction by making the Order in respect of the Complaint referred to the ADT for inquiry into conduct of the Coroner's Office pursuant to s 78 of the Anti-Discrimination Act 1998 (the Act):

1. in its construction of s 67 of the Coroners Act 1995 (Tas) (CA) and of s 10A of the Magistrates Court Act 1987 (Tas) (MA);
2. by summarily dismissing the complaint in reliance on s 67 of the CA and s 10A of the CA;

1. by making a finding on the absence of bad faith:
   1. when that issue was dependent on findings on the anterior issue of discrimination which had not been determined;
   2. without affording procedural fairness to the appellant on respect of the issue of bad faith;
   3. without considering or determining whether the conduct complained of was conduct under the Act for the purposes of s 67 of the CA;

1. by failing to find that the immunity under s 67 of the CA was the only relevant immunity;
2. by finding that s 10A of the MA also applied to the Coroner;
3. by declining or failing to make any finding on the jurisdictional error alleged on behalf of the appellant in respect of any decision the subject of the complaint when the matter was an issue to be determined.
4. by failing to be satisfied that as the matters to be determined by the ADT involved matters of law, mixed fact and law and matters of fact, the matter was not one that was proper or appropriate for summary determination."

1. At the hearing of the appeal, the appellant isolated five specific and discrete errors of law arising from the grounds of appeal:

"1 Neither s 67 of the Coroners Act nor s 10A of the Magistrates Court Act apply in their terms or operation to the Magistrate's Court (Coronial Division), which is the organisation against whom there is a legal proceeding as a result of the referral for inquiry of the Appellant's complaint under the Anti-Discrimination Act.[1]

1. If the immunity in s 67 is found to apply to the Magistrates Court (Coronial Division) no finding could properly have been made as to whether the immunity applied in this case until findings were made as to whether the allegedly discriminatory conduct was 'done under the Act' and, if so, whether it was done in bad faith. That did not occur.[2]
2. Section 10A has no application in any event as the immunity it confers is inconsistent with the immunity in s 67, which must prevail having regard to the principles in Commissioner of Police v Eaton. [3]
3. The Tribunal erred in law in determining that the appellant bore the onus of establishing bad faith and that he had failed to discharge that onus. Rather, the Tribunal had to inquire into and determine for itself whether it had jurisdiction in respect of the complaint referred for inquiry and it failed to do so.[4]
4. The question of jurisdiction, having regard to the immunity conferred by s 67, involved difficult and inter related matters of mixed fact and law and the Tribunal denied the appellant procedural fairness in purporting to determine those matters summarily.[5]

1. The written submissions provided by the appellant were structured with reference to the grounds of appeal. At the hearing of the appeal, the oral submissions were structured with reference to the five errors. Noting the five errors and five grounds do not correlate, it has been necessary to undertake the rather considerable task of cross-checking the oral submissions with the written submissions to ensure that all points have been considered in the correct context. I have also considered the written submissions before the Tribunal, relied upon by both parties in this appeal.
2. At the conclusion of the hearing of the appeal, counsel for the Attorney-General was given time to provide a written response to submissions that were not included in the appellant's written submissions. A timeframe was provided for the appellant to reply. Within the timeframe allocated, counsel for the intervenor wrote to the Court and noted that she had identified a constitutional law point, and there was a need for s 78B notices to be sent to Attorneys-General to provide an opportunity to be heard. Notices were issued but other Attorneys-General did not seek to be heard. Counsel for the intervenor included submissions on this point in the written submissions that were filed, and the appellant provided further written submissions in reply.
3. The appeal is considered with reference to the five so-called errors that are relied upon and that fall from the grounds of appeal. One of the grounds of appeal, ground 1(d), is not referenced as a foot note to any of the five errors. It is not evident whether this ground is relied upon. It is covered in the context of the "third error".

1. As can be seen, the errors are said to arise principally from the Chairperson's approach to the immunity provisions. These immunity provisions are as follows.

Section 67 of the Coroners Act provides:

Neither the coroner nor a person acting under an authority given under this Act is liable to any legal proceedings in relation to anything done under this Act, unless it was done in bad faith."

Section 10A of the Magistrates Court Act provides:

A magistrate, in performing any function or exercising any power of the office of magistrate, has the same immunities as a puisne judge of the Supreme Court has under section 6 (1) of the Supreme Court Act 1887."

1. The breadth of the immunity under s 10A was not a matter of argument in this case. There is no question that if it has application it would operate to provide protection with respect to the proceedings under the AD Act. In relation to s 67, there were arguments that it did not have application to this case. However, there is no argument that if the immunity applies, it would not operate to forestall the proceedings under the AD Act.

Error one: The immunity provisions do not operate to provide immunity to an organisation such as a court.

Neither s 67 of the Coroners Act nor s 10A of the Magistrates Court Act apply in their terms or operation to the Magistrates Court (Coronial Division), which is the organisation against whom there is a legal proceeding as a result of the referral for inquiry of the appellant's complaint under the Anti-Discrimination Act.

1. The appellant highlighted that this complaint is against an organisation, and relief is not sought against individuals. It was submitted that the proper construction of the AD Act is that the liability of individuals is separate to the liability of the organisation to which they belong. The Chairperson of the Tribunal wrongly conflated the organisation and the individuals.
2. The appellant argued that the immunity clauses apply to provide immunity in respect of a legal proceeding against an individual. Here the complaint is not against an individual, but against an organisation. It is the organisation that is liable, and if an order is made it will be against the organisation as an organisation.
3. The history of judicial immunity is relied upon as supporting the construction that judicial immunity is personal, not institutional. It covers the functions of judges and officers of a court in the sense of personal liability: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (1995) 223 CLR 1 at [40]- [41]; Re East; Ex Parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [30]; Rajski v Powell (1987) 11 NSWLR 522.
4. The appellant draws on principles of statutory construction. Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104, 169 FCR 85 at [14] and [179] is authority for a liberal construction of the AD Act. Additionally, there is a rule of statutory construction that privative clauses are to be strictly construed and given a narrow construction: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at [72].
5. The appellant argues that the purpose of the AD Act is that it should cover courts and organisations such as the Magistrates Courts, and it was intended that they would be bound by the Act. This is said to be revealed by provisions such as s 4.
6. The appellant contends that the coronial division of the Magistrates Court is a State authority within the definition of "organisation" in the AD Act. The Coroners Act provides for a self-contained jurisdiction intended to be exercised within the division of the court. Section 104 of the AD Act provides for vicarious liability of an organisation for the conduct of its members and agents. The conduct need not be the conduct of one person, it may be the cumulative conduct of a number of individuals which, in combination, amounts to a contravention of the AD Act: Krakowski v Eurolynx Properties Pty Ltd (1995) 183 CLR 563_._
7. The respondents to the appeal, the Anti-Discrimination Tribunal and the Magistrates Court (Coronial Division), submitted to the jurisdiction of the Court. The Attorney-General as the intervenor was represented in the proceedings and was the only contradictor, maintaining the jurisdictional arguments raised before the Tribunal and arguing that the Chairperson's determination was correct. The submissions for the intervenor are that organisational liability under s 104 against the Magistrates Court of Tasmania (Coronial Division) can be defeated by an immunity provision protecting either the person or persons alleged to have discriminated, or the person/s making up the organisation that are responsible for the failure to ensure that discrimination did not happen.
8. It was argued for the intervenor that the appellant misapprehended the way in which it was found that the s 10A immunity would operate to prevent a breach of s 104 of the Act. It was found that the s 10A immunity would prevent a breach of s 104 of the Act being established because such liability would relate to the magistrates or, the Chief Magistrate "not acting as a coroner but as Chief Magistrate". It was argued that it was a misconceived characterisation of the respondent, the Magistrates Court of Tasmania (Coronial Division), to equate it to "the Coroner and officers of the coronial division."
9. There were four submissions made in response to the appellant's contention that the Magistrates Court (Coronial Division) may be an organisation, distinct from its magistrates, and the immunity in s 10A does not apply to the organisation.
10. First, if the contention was correct, the result would render judicial immunity in s 10A nugatory in relation to discrimination. Any person who felt they had been discriminated against by a magistrate or coroner could entirely avoid the immunity by making a claim against the Court or Division. Even if the "Court" was not ultimately found liable under s 104, that could only follow after curial examination of the conduct of the magistrate in question and the conduct or omissions of the "Court" in failing to prevent the alleged discrimination.
11. Second, despite the breadth of the definitions under the AD Act of "person", "organisation" and "State authority", they do not encompass a court or one of its divisions. The legislature went to the trouble of specifically mentioning that an organisation includes a council and a government department, yet did not mention a court. This is significant because a court is a unique type of body. It does not have separate legal personality and has not traditionally been thought of as an organisation, but rather, as a body constituted by its judicial officers. A court requires the presence of its judges to give it existence: In re McClaskey 2 Okla 568 (1984) 574-5 [6] (Scott J). The institution of a court is principally constituted by permanent judicial officers: Forge v ASIC [2006] HCA 44, 228 CLR 45 at 79 [73].
12. The Tribunal is not a "court of the State" and does not form part of the integrated national court system: Commonwealth v Anti-Discrimination Tribunal (Tas) at [236] per Kenny J. If the Tribunal could inquire into the conduct of and make orders in respect of the Magistrates Court, that would interfere with the institutional integrity of that court, contrary to the principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. An interpretation which might bring about such a result should be avoided.
13. Third, reading the AD Act as a whole, organisational liability can only be found in relation to an organisation that is identifiable and distinct from other organisations. The Magistrates Court of Tasmania (Coronial Division) is not distinct from the Magistrates Court of Tasmania. The Magistrates Court of Tasmania consists of the magistrates (Magistrates Court Act, s 3A). If the Magistrates Court of Tasmania (Coronial Division) is a separate organisation, its members are not readily identifiable. The Coronial Division of the Magistrates Court merely describes an administrative designation established for the purposes of organising and conducting the Court's business. Within the Coronial Division, the Court conducts its business for the purposes, and in the exercise, of the jurisdiction conferred upon it by the Coroners Act.
14. Fourth, even if the Magistrates Court, or the Coronial Division, was an organisation within the meaning of the AD Act, that would not endow it with a separate legal personality, or make it a separate entity. The Magistrates Court has no independent legal existence from the magistrates that together constitute it; it is not a separate entity. In reality, a complaint against the Magistrates Court is a complaint against all the people who make up the Magistrates Court, the magistrates. The magistrates who constitute the Court may still individually claim the immunity in s 10A.
15. Submissions were made that s 67 of the Coroners Act has application to organisational liability. If the coroner's conduct is covered by the immunity, then it should not be examined by the Tribunal to determine whether or not he has contravened the AD Act: Winters v Fogarty [2017] FCA 51.
16. These submissions and the submissions made at first instance before the Tribunal have been carefully considered. It transpires that not all of them require determination.

1. The complaint is against an organisation, not individuals. The organisation is identified as the Coronial Division of the Magistrates Court of Tasmania. Arguably, it may be correct to characterise it as the Magistrates Court. For the time being I will describe the organisation as the Court, but both characterisations will be considered. The basis of liability of the Court or the Division of the Court asserted by the appellant before the Tribunal, and maintained on appeal, is s 104 which has a heading "Obligation of organisations" and provides:

(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.

(2) 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.

(3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents."

1. It can be seen that under this section 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. Subsection (3) provides that an organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents.
2. The case against the Coronial Division is that it breached its obligation to take reasonable steps to ensure that no member engaged in discrimination or prohibited conduct, and that there was a contravention of this Act by a member or members of the Court. Both matters are essential to the liability of the organisation under subs (3).
3. The term "organisation" is defined in s 3 of the AD Act:

"organisation includes a council, a Government department within the meaning of the State Service Act 2000 or a State authority."

"State authority means any body or authority, whether incorporated or not, that is established or constituted under a written law or under the Royal prerogative, which is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority."

1. It can be seen that the definition of organisation is inclusive and provides examples_._ It can be seen from the examples that an organisation is not limited to entities which have "legal personality and capacity": Commonwealth v Anti-Discrimination Tribunal (Tas) at [152] per Weinberg J. Weinberg J went on to note that instead, the ordinary meaning of "organisation" extends to all sorts of bodies, including unincorporated associations, clubs or government departments_._ Kenny J at [182] referred to current English usage and the definition of "organisation" in the Oxford English Dictionary: "4. A. An organised body of people with a particular purpose, as a business, government department, charity, etc." Plainly the mere fact that a court or a division of a court is not a legal entity does not put it out of the reach of the AD Act.
2. It was argued for the respondent that organisational liability can only be found in relation to an organisation that is an identifiable and distinct body.
3. This much can be discerned from the definition which reflects the ordinary and natural meaning of the word "organisation". It can also be discerned from the examples provided within the definition. A council and a government department within the meaning of the State Service Act 2000 or a State authority are bodies that are not legal entities but they have a statutory existence and therefore have definition. They are distinct bodies that can be identified with reference to legislation. They can be distinguished from other bodies.
4. Furthermore, the scheme of the AD Act would support this interpretation of an organisation as being an identifiable and distinct body. The Act allows for redress against an organisation. If the Tribunal finds after an inquiry that a complaint is substantiated, it may make orders pursuant to s 89 such as an order that the respondent must redress any loss, injury or humiliation suffered by the complainant and caused by the respondent's discrimination or prohibited conduct, an order that the respondent must re-employ the complainant, and an order that the respondent must pay to the complainant compensation for loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct. Unless an organisation is an identifiable and distinct body, these remedies could not be enforced and the AD Act would be ineffectual.
5. While an organisation may be liable pursuant to s 104 of the AD Act, this is not the only basis upon which an organisation may be liable under the Act. The obligations cast by s 104 on organisations are additional to obligations of an organisation as a "person" who has breached the Act and is directly liable, and also additional to accessorial liability as a "person", provided for in s 21 of the Act. The definition of "person" in the AD Act includes an organisation: s 3. There are plentiful examples of the application of antidiscrimination legislation to organisations as respondents directly liable and responsible for discrimination or prohibited conduct: Commonwealth Bank v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78; Cain v The Australian Red Cross Society [2009] TASADT 3; Commonwealth v Anti-Discrimination Tribunal (Tas) (above) in which it was considered that the complaint should be characterised as a complaint about Centrelink, rather than about the staff through which it necessarily acted; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR_; Waters v Public Transport Corporation_ (1991) 173 CLR; and IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1.
6. As a practical consideration, it is important for the effective operation of the Act, that in every case the respondent organisation be a distinct body and able to be identified and, if it is not a legal entity, for there to be clarity about the persons who constitute it. This is essential for pursuing proceedings under the Act and for the fundamental objective of holding respondents accountable for their actions, and also for the purpose of enforcing a remedy under the Act. Ultimately, an order can only be enforced against individuals or an entity with legal capacity. As noted, if the respondent is amorphous and cannot be identified, an order under the Act is unenforceable and provides no remedy at all.
7. If the correct characterisation of the respondent is the Magistrates Court (Coronial Division), then the following is pertinent. The Coronial Division of the Magistrates Court, is constituted by a single magistrate or a single coroner: s 6 of the Coroners Act. The Chief Magistrate is responsible for the operation and administration of the State coronial system: s 7 of the Coroners Act. By virtue of the Coroners Act, the Chief Magistrate has responsibility for that organisation. Effectively, this would mean that the Chief Magistrate would be standing in the shoes of the organisation in terms of liability under the AD Act.
8. As noted, the Magistrates Court, of which the Coronial Division is a division, is not a legal entity. The Magistrates Court consists of the Chief Magistrate, the Deputy Chief Magistrate and the magistrates: s 3A of the Magistrates Court Act. If legal proceedings are brought against the Magistrates Court, then it is apparent from s 3A of the Magistrates Court Act that the proceedings in effect are brought against the magistrates who make up the court at the relevant time. The Magistrates Court of Tasmania has definition, and resort to the Magistrates Court Act reveals that it consists of the magistrates as mentioned. If an order is made under s 90 of the AD Act that is enforceable then it would, except for any immunity provisions, be enforceable against the magistrates.
9. Regardless of how it is characterised, the Court, as a non-legal entity, has definition by statute. The statutory provisions I have referred to provide clarity about how the body is constituted and the individual/s that govern it. It is worth observing that because of this defined identity and in light of the definition of "organisation", it would seem that there is nothing about the wording of the definition of "organisation" that precludes a court or a division of a court from qualifying as an organisation.
10. As noted above, the intervenor submits that the Magistrates Court generally or the Coronial Division of the Court is not an organisation. Rather, a court is a unique type of body. Traditionally it has not been thought of as an organisation, but instead, as a body constituted by its judicial officers. A court requires the presence of its judges to give it existence: In re McClaskey (above). The institution of a court is principally constituted by permanent judicial officers: Forge v ASIC (above) at 79 [73].
11. In relation to the named respondent, the Magistrates Court of Tasmania (Coronial Division), it is argued that that is not a body that is distinct from, and rather, it is merely part of, the Magistrates Court of Tasmania. The Magistrates Court of Tasmania consists of the magistrates (Magistrates Court Act, s 3A). If the Magistrates Court of Tasmania (Coronial Division) were a separate organisation, its members are not readily identifiable. The Coronial Division of the Magistrates Court merely describes an administrative designation established for the purposes of organising and conducting the Court's business. Within the Coronial Division the Court conducts its business for the purposes, and in the exercise, of the jurisdiction conferred upon it by the Coroners Act.
12. Whether a court qualifies as an organisation because of its unique nature, and because as a matter of law it is constituted by its judicial officers, need not be decided.
13. The point that a division of a court is not a distinct organisation from the larger court body seems to have merit given the legislative provisions, but need not be decided. This specific argument, if upheld, could be met by an amendment to the complaint so that the respondent was correctly named.
14. The broader question is whether the AD Act in its terms applies to courts. The appellant's argument is that the purpose of the AD Act is that courts and organisations such as the Magistrates Courts are to be bound by the Act. This is said to be revealed by s 4 that provides:

This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities."

1. This section does not assist in resolving the question of whether the AD Act may extend to a court. The section does not say anything about that. In s 4, the Crown means the Monarch and the Executive: Commonwealth v Anti-Discrimination Tribunal (Tas) per Weinberg J at [121]. It does not mean the judiciary. However, for the reasons below, this does not mean that the application of the Act to courts is uncertain.
2. It was argued that the Coronial Division of the Magistrates Court is a State authority within the definition of organisation in the AD Act. In Commonwealth v Anti-Discrimination Tribunal (Tas), Kenny J at [182] noted that the definition of "State authority" in s 3 would cover virtually every other body besides a department exercising the State's executive power. The reference to executive power would necessarily exclude a court. It is acknowledged that the question of the meaning of "State authority" did not arise in that case. However, the term is not inherently suggestive of a body such as a court. At most, all it could be said is that the definition of "organisation" and "State authority" is silent on this question as to whether they cover courts.
3. To determine whether the AD Act was intended to cover courts would require a consideration of the whole of the Act and its evident purpose and the context. Statutory rules of construction would also require consideration, including the principle of legality. In this context, the intervenor's argument regarding the Kable principle would arise. As noted above at [30], it was argued on behalf of the Attorney-General that as the Tribunal is not a "court of the State" it does not form part of the integrated national court system. If the Tribunal could inquire into the conduct of, and make orders in respect of the Magistrates Court, that would interfere with the institutional integrity of that Court, contrary to the principle in Kable. An interpretation which might bring about such a result should be avoided.
4. The argument is refuted by the appellant on a number of grounds. It is argued that s 104 does not give rise to any legal liability on the part of magistrates, it is not argued that s 104 of the AD Act applies to the Magistrates Court of Tasmania; the judicial immunity conferred by s 10A is to magistrates and not to an organisation; this case is about State jurisdiction and no question of federal jurisdiction arises in this case; and, in any event, the immunities granted by ss 67 and 10A protect the institutional integrity of the court.
5. It is undesirable for this Court to decide the argument concerning application of the Kable doctrine unless it is necessary. It was raised in the context of an appeal which has raised multiple arguments and when this argument was not the primary focus. Indeed, it was first raised in written submissions filed after the hearing. As it transpires, it is unnecessary to decide the question, given the complete answer to the complaint provided by the immunity provisions.
6. The argument for the appellant is that the Chairperson of the Tribunal erroneously applied the immunity clauses in the Coroners Act and the Magistrates Court Act to an organisation, and that such clauses can only apply to protect individuals from legal proceedings**.** These provisions are set out above at [18].
7. I begin my consideration with some general principles that apply to construing immunity clauses.
8. There is a general rationale for confining the interpretation of an immunity provision because of the law's strong disposition against immunities that derogate from an individual's ordinary legal obligations to others, and to the community, on a footing of full equality before the law: D'Orta-Ekenaike at [317]; Fingleton v The Queen [2005] HCA 34, 227 CLR 166 at [168]. In the event of real doubt, the immunity provision would be confined to uphold such equality.
9. Immunities of the kind here are protective of individual judicial officers, but they exist for the wider public benefit. The purpose of the common law protection is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences: Rajski v Powell per Kirby P at 528. Likewise, the purpose of statutory immunities is to forestall, in the cases to which they apply, proceedings involving curial examinations of the exercise of functions and powers and to do so because of important principles of public policy supportive of judicial independence: Fingleton [160], [176].
10. In Re East, the High Court considered an application in the original jurisdiction of the High Court seeking certiorari and declarations. The respondents to the application included judicial officers. The applicant alleged he was a victim of racial discrimination contrary to the Racial Discrimination Act arising from the failure to insist that he have an interpreter in criminal proceedings in the County Court of Victoria involving a charge of armed robbery. He was legally represented and his counsel did not ask for one. The two persons whose acts are alleged to have contravened that Act were the magistrate and the Chief Judge. The plurality judgment noted in parentheses at 365 that "the respondents are their respective courts". The plurality went on to note that there are "fundamental problems" with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of the Racial Discrimination Act. The first is a "well established" immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity.
11. Here, there is no question that the application of the immunity provision in the Coroners Act protected the coroner and someone acting under an authority under the Coroners Act. The appellant acknowledges that the immunity provides that protection, but maintains that the immunity does not extend to the Court or a division of the court. However, to seek redress against the court, however characterised, is in reality to seek redress against the judicial officers who constitute that court or division of the court. That redress cannot be pursued because of the protection afforded by the relevant immunity provision. The immunity provisions have application and operate to forestall the legal proceedings under the AD Act.
12. Furthermore, the redress that is sought against the court, however described, exposes the coroner to curial examination of his exercise of judicial power under the Coroners Act. The outcome of the legal proceedings under the AD Act will turn on that examination and a finding of whether the coroner had contravened the AD Act. The objective of immunity provisions is to protect judicial officers from that examination.
13. The intervenor argued that to pursue the court is to circumnavigate the immunity clause in an impermissible way. Rather, given that it is the magistrates who constitute the court or the Chief Magistrate who is responsible for the coronial division, the proceedings squarely collide with one or both of the immunity provisions and their purpose.
14. The appellant's argument is that the immunity provisions do not apply to these proceedings. The proceedings are against an organisation pursuant to s 104. The simple answer to that question is that, as demonstrated above, it was not impermissible to conflate the organisation, ie the Coronial Division of the Magistrates Court or the Magistrates Court of Tasmania, and the Chief Magistrate or all of the magistrates. Judicial officers are in effect the court or the division of the court. By bringing legal proceedings against the organisation, the appellant is bringing proceedings against a judicial officer or officers who have immunity.
15. It will be remembered that the appellant argues that organisational liability is not contingent on the liability of a judicial officer. The liability under s 104 is a kind of vicarious liability that need not be the conduct of one person, it may be the cumulative conduct of a number of individuals which in combination amounts to a contravention of the AD Act: Krakowski v Eurolynx Properties Limited (above). It is pointed out by the appellant that in that situation no question involving the immunities arises. Whether there has been a contravention by an individual would have to be determined at inquiry. The particular behaviour of an individual may not amount to discrimination or a contravention of the Act, rather, the discrimination may be the behaviour of individuals viewed in combination. This demonstrates that the liability of the organisation is not to be equated with the liability of an individual. The respondent may be liable and yet the coroner or his staff may not have individually breached the Act. It was argued that the application of the immunity provision provides protection for personal liability under the Act and necessarily it could not apply if the liability of the organisation in a particular case relies on combined liability.
16. Whether liability of an organisation pursuant to s 104 may be based on the conduct of various employees or agents when the conduct of each individual viewed in isolation would not amount to a contravention of the Act, is a question of statutory construction.
17. The appellant's construction is not supported by the text of the AD Act. Liability of the organisation depends on the necessary precondition in s 104 that there has been a "contravention of this Act committed by any of its members, officers, employees and agents". The section does not introduce the notion of a composite contravention. In my view liability of an organisation under this section turns on the contravention of the Act by conduct of an employee or servant whose individual conduct amounts to a contravention.
18. Krakowski v Eurolynx Properties Limited was a case involving proceedings against Eurolynx Properties Ltd alleging misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1985 (Vic). It involved a contract of sale and a false representation by the vendor, Eurolynx Properties Limited, regarding the rent that a property would yield. The question was the knowledge of the corporation and whether it had been fraudulent in its misrepresentation. The plurality judgment at 582 quoted from Bright J in Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279:

"Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company. This process is often necessary in cases in which companies are charged with offences such as conspiracy to defraud."

1. The plurality went on to state that a division of function among officers of a corporation responsible for different aspects of the one transaction did not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.
2. Krakowski v Eurolynx Properties Limited does not establish the point the appellant seeks to make. It was not a case involving a form of vicarious liability by an organisation for the conduct of an employee. It was a case concerning whether the corporation itself had been fraudulent, and concerning its state of mind. A corporation's state of mind is necessarily the knowledge of a person or persons who are regarded as the mind and will of the corporation. This principle would have application to scenarios where a corporation was said to have carried out discrimination or prohibited conduct contrary to the AD Act, as a "person" who carried out the conduct with a state of mind. By contrast, the questions pursuant to s 104 are, once a member, officer, employee or agent of an organisation engages in or repeats or continues discrimination or prohibited conduct under the AD Act, whether the organisation breached its obligations in s 104(1) or (2).
3. The liability of the respondent pursuant to s 104 depends on a contravention of the AD Act by Coroner Carey or Sgt Smith. It could not arise unless either or both, individually, breached the Act. It would be a different matter if the respondent was alleged to be the "person" who carried out discrimination or prohibited conduct. Krakowski v Eurolynx Properties Limited would then have application.
4. There were specific submissions that related to the Coroners Act. An organisation does not fall within the natural meaning of the words in s 67: "...a person acting under an authority given under the Act..." The complaint is not a legal proceeding against the coroner or any person acting under an authority given under the Act. Even if you allow for the extended definition of "person" in the Acts Interpretation Act 1931, s 41(1), the organisation does not fit within the terms of s 67. Only individuals, coroners and officers, have authority to act under the Coroners Act.
5. The Attorney-General argued that s 67 is cast in wide terms which provide that the coroner is not liable to any legal proceedings. It is not simply a question of whether the coroner is to be personally liable to punishment or civil liability. It was argued that if the coroner's conduct is covered by the immunity, then it should not be examined by the Tribunal to determine whether or not he has contravened the AD Act.
6. As noted above, this contention is consistent with the purpose of the immunity which is to avoid curial examination of judicial officers. As stated by Bromberg J in Winters v Fogarty at [133], the rationale for the judicial immunity strongly supports the proposition that the judicial immunity extends to prohibiting the curial examination of the conduct of a judge exercising judicial functions for the purpose of determining whether that conduct constituted civil unlawfulness.
7. The boundaries of the particular statutory immunity provided are to be found in the language of the section: Fingleton, per Gleeson CJ at [41].
8. Section 67 refers to "liable to any legal proceedings". It is argued for the appellant that s 67 does not immunise an inquiry in respect of a member's conduct. It just says you cannot have a legal proceeding "against" a coroner or a person acting under an authority given under this Act. The immunity provisions are concerned with personal liability. In my view, it is clear that these words are not focussed on liability that may arise from legal proceedings. The word "liable" may mean "subject, exposed, or open to something possible or likely" or "under legal obligation, responsible or answerable": Macquarie Dictionary, 8th ed (2020) Vol 2 at 884, "liable". The context here strongly indicates the word is being used in the broad sense of "subject to." It makes sense to speak of "subject to legal proceedings" rather than, "under legal obligation or responsible to legal proceedings". The section is not requiring that the immunity would only apply in the narrow sense of the legal proceedings giving rise to liability.
9. I do not consider there is any doubt as to the meaning of the phrase "liable to any legal proceedings" in this context. However, if there was, the purpose underlying judicial immunity would weigh in favour of a broad meaning. I would, in the case of doubt, follow the approach of Bromberg J in Winters v Fogarty at [137]. While taking into account the principle referred to by Kirby J in Fingleton at [168] that immunities that "derogate from an individual's ordinary legal obligations to others, and to the community, on a footing of full equality before the law" should, where possible, be confined, I would consider this principle to be outweighed by the countervailing principle and policy underlying the immunity provision.
10. However, as I have said, I do not think that there is any doubt about the words of s 67 of the Coroners Act. The complaint against the Coroners Division of the Magistrates Court, as an organisation, hinges on an allegation that Coroner Carey and Sgt Smith carried out discrimination or prohibited conduct. The focus of the proceedings would be whether they had contravened the AD Act. To pursue this complaint against the organisation would subject them to scrutiny as to whether they had breached the AD Act and hence they would be subject to legal proceedings. Therefore, s 67 of the Coroners Act is squarely enlivened. Coroner Carey may also have the protection afforded by s 10A of the Magistrates Court Act, if he is "performing a function or exercising any power of the office of magistrate", a question which falls for consideration later in these reasons. Either of these immunities would forestall proceedings which subjected his conduct to scrutiny as a breach of the AD Act.
11. Furthermore, because the Chief Magistrate is responsible for the Coronial Division as previously discussed, the bringing of proceedings against the Division would expose her to legal liability. She is standing in the shoes of the Coronial Division as an organisation and in jeopardy of being pursued for a legal remedy in the event of a finding that the complaint was substantiated. Whether the respondent is characterised as the Magistrates Court, or of a division of the Court, it is not a legal entity. Section 10A of the Magistrates Court _Ac_t would provide her with immunity forestalling the legal proceedings against the Coronial Division of the Court.
12. If the complaint is correctly characterised as relating to the Magistrates Court, and if it was determined by the Tribunal that the Court had breached the Act, then it is the Chief Magistrate and the magistrates who constitute the court, and proceedings against the Court would render them all "liable to legal proceedings." They would be regarded as the Court for the purpose of any remedy under the AD Act and in jeopardy of being pursued in the event the complaint was substantiated. Section 10A of the Magistrates Court Act would provide them with immunity forestalling the legal proceedings against the Magistrates Court.
13. In conclusion, there was no error in holding that the immunity provisions may be enlivened when the legal proceedings were brought against an organisation, rather than individuals. As to the specifics of which immunity provision may have application, that was the subject of argument in the context of other asserted errors.

Error 2: The application of the immunity in s 67 required findings of fact to be made

If the immunity in s 67 is found to apply to the Magistrates Court (Coronial Division), no finding could be made regarding s 67 immunity until findings were made as to whether the alleged "discriminatory conduct" was "done under the Act" and if so, whether it was done in bad faith. That did not occur.

1. The second error that is identified relates to the Chairperson's determination that the immunity under s 67 of the Coroners Act had application and the Chairperson's approach of summarily dismissing the complaint without an inquiry. It was submitted on appeal that the issue of bad faith, as a matter of mixed fact and law, was required to be determined in the context of, and not prior to, the Tribunal's findings in respect of the discriminatory conduct complained of at the substantive hearing in relation to the conduct. Section 67 also required consideration of whether the impugned conduct was "done under the Act", because if not, the immunity was not available.
2. The question of bad faith attracted specific consideration in the submissions. Before the Tribunal the parties had filed written submissions in relation to jurisdictional issues, and one of the issues concerned the application of the immunity provisions. The Attorney-General submitted that there was no allegation or material to suggest that the alleged conduct was done in bad faith. It was contended that in this case, bad faith was not alleged, or suggested by any material before the Commissioner.
3. The appellant argued in comprehensive written submissions that a finding of discrimination, if made, is tantamount to a finding of bad faith, or at least a substantial indicator of bad faith by the decision-maker. It was noted that the authorities indicate that bad faith is a subjective indictment of the state of mind of the decision-maker, involving a wilful or reckless misuse of power: SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377; Forsyth v Blundell [1973] HCA 20; (1973) 129 CLR 477. It was argued that an inquiry into discrimination arguably informs, and is a precursor to, a finding of mala fides as it evidences both a subjective intention to misuse power and the basis of the improper exercise itself.
4. The Chairperson considered the question of the application of s 67 of the Coroners Act. As to what amounts to bad faith, he accepted the following submissions of the appellant:

"What is bad faith is interrelated to what amounts to good faith.[1]

The authorities indicate that bad faith is a subjective indictment on the state of mind of the decision maker[2], involving a wilful or reckless[3] misuse of power.[4]

That may be indicated by the decision maker making a "determination on the premise of facts or circumstances which it knew to be untrue, or alternatively, for example, by making no real attempt to address the applicable statutory criteria.[5] "

It may also be implied by the circumstances and outcome of the decision, where it is so blatant that the decision-maker has not honestly attempted to exercise the relevant statutory power.[6]

[1] "An allegation that a decision-maker did not act in good faith is, in substance and effect, an allegation that the decision-maker acted in bad faith": NAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730, 199 ALR 412.

[2] Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 and in particular "The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith", at [8].

[3] SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, 194 ALR 749 at 755-756.

[4] SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377; Forsyth v Blundell [1973] HCA 20, 129 CLR 477.

[5] NCAL v Refugee Review Tribunal [2002] FCA 643 per Conti J at [21].

[6] SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 at [30]- [33] and the cases referred to therein."

1. The learned Chairperson went on to deal with the implications of a finding of discrimination at [43]:

"While some discriminatory acts could well amount to bad faith there is no doubt many such acts occur because of the ignorance, beliefs or attitudes of the respondent in circumstances where there is no intention on the respondent's behalf to harm the complainant. A discriminatory act could also occur because the respondent is genuinely mistaken about a certain state of affairs. I therefore do not accept the complainant's submission that a finding of discrimination of itself suggests there has been bad faith shown by a respondent."

1. Later, at [45] the Chairperson considered the complaint and the material which formed the Commissioner's investigation:

"...I cannot find any allegation of bad faith in those materials. The complaint suggests the complainant was subjected to the conduct he was subjected to because he believed that because he and Mr Lunson were in a homosexual relationship 'and that officials involved either did not know the laws they were enforcing or felt that I was not entitled to legal protection due to my sexual orientation'. No basis for this belief is set out. A belief does not amount to evidence of bad faith. No facts have therefore been alleged which suggest bad faith. For the purposes of considering whether or not the immunity in s67 applies I determine there was no bad faith [28]. As there is no allegation or suggestion of bad faith in the materials before the ADC, it is not necessary for me to hear evidence about that in order to determine whether or not the immunity in s67 applies.

[46] Accordingly I am of the view the immunity in s67 of the Coroners Act 1995 applies in this case." [Emphasis added.]

1. On appeal it was argued that bad faith was required to be determined in the context of the discrimination alleged, and therefore, the summary dismissal of the complaint without investigation of those matters was premature and in error. The appellant relied upon a decision of the Tribunal in Delaney v Liberal Party of Australia (Tas) [2008] TASADT 2. In that case, the Tribunal was required to consider the dismissal of the complaint by the Anti-Discrimination Commissioner on the basis that the offending pamphlet was published in good faith or in the public interest. The Tribunal stated at [37]-[38]:

"37 Finally, noting all of the above, the critical observation is made that it seems impossible for this Tribunal to draw a conclusion that this complaint is hopeless because of the application of an exception without making findings of fact that cannot and should not be made in this case at this stage. In this case and in many other cases findings about 'true purpose' should be made at Inquiry stage when a complainant has had the opportunity to present his or her case in the ordinary way and the Respondent has had the opportunity to establish his true purpose. There is material that gives rise to a question about the Respondent's true reason for publishing the document. The Commissioner has correctly concluded that the language used in the pamphlet could incite hatred. It is not moderate language and it could be argued that it is in excess of that required for the occasion and so the evidence of the contents of the pamphlet could give rise to an inference of lack of good faith and improper purpose: Deen v Lamb at page 7_._ Whether or not the Tribunal draws that inference, regards any such inference as countered by evidence from the Respondent and accepts the Respondent's evidence of purpose are all matters for the Tribunal at Inquiry.

38 In essence, the Tribunal concludes that the application of the exception in this case and specifically the questions of whether the Respondent acted in good faith and whether the ostensible legitimate purpose was the Respondent's genuine and only purpose is properly a question for the Tribunal at Inquiry. Consideration of the question involves an assessment of evidence and weighing and evaluating assertions made that have been tested by cross-examination and assessing that evidence in light of the circumstances that existed at the time. It is concluded that this is not a case where the application of the exception is so clear that the complaint is hopeless."

1. Here, as can be seen above at [91], the Chairperson concluded that there was no "allegation" of bad faith and that no facts have been alleged which suggest bad faith. However, whether or not an "allegation" of bad faith was made by a complainant in a complaint is really not to the point. A complainant would not be expected to know about immunities, and even more significantly, could not be expected to allege the state of mind of other individuals, or their motive or purpose. This is not a jurisdiction that requires pleadings. The written complaint is not to be treated as a formal document of pleading: Flanagan v Humana Pty Ltd [2017] TASSC 50 at [42]- [45]. Indeed, even in the case of a jurisdiction requiring pleadings, a pleading as to bad faith would not be required: Murphy v Victoria [2014] VSCA 238; (2014) 45 VR 119 at 129 [35].
2. Generally, bad faith is a matter of inference to be drawn from the conduct of the individual and the circumstances of the case. Here, matters bearing on whether this inference should be drawn are the nature of the alleged conduct, what did the coroner and the officer do, and does that conduct suggest mala fides. As noted, the Chairperson considered the alleged facts and concluded that they did not suggest bad faith.
3. The Chairperson's appraisal of the allegations and the material gathered during the investigation has not been impugned. It is not suggested that the Chairperson overlooked any evidence or failed to pay regard to any circumstance. At the hearing of this appeal, the appellant did not point to one aspect of the circumstances or any factual allegation or allegations of conduct which, if accepted, should have been regarded as supporting a finding of bad faith.
4. The appellant highlighted the passage in the Chairperson's reasons for decision at [45] in which it was said:

"No facts have therefore been alleged which suggest bad faith. For the purposes of considering whether or not the immunity in s 67 applies I determine there was no bad faith. As there was no allegation or suggestion of bad faith in the materials before the ADC, it is not necessary for me to hear evidence about that in order to determine whether or not the immunity in s 67 applies."

1. Taken out of context, the statement, "I determine there was no bad faith", may suggest a factual finding was made in the absence of evidence. It was submitted that this approach was erroneous. Clearly, though this was a reference to the factual foundation on which the Chairperson was proceeding, given there was no evidence or suggestion of bad faith.
2. The Chairperson's observation that some allegations of discrimination may suggest bad faith and, some may not, is undoubtedly correct. This case is factually very different to Delaney which involved allegations of the distribution of a pamphlet by the Liberal Party of Tasmania to households throughout Tasmania which stated that the Tasmanian Greens' policy of "full access to marriage laws for same sex couples in Tasmania" is "socially destructive change". The question was whether the pamphlet was capable of inciting hatred and, more particularly, whether the exception of good faith and in the public interest may apply. In Delaney, the Tribunal at [31] referred to Deen v Lamb which noted that lack of good faith is usually to be inferred from other facts proved, and then stated: "For this reason it is common, in defamation actions, to scrutinise a defendant's conduct for evidence from which an improper purpose might be inferred. In addition, the terms of the publication, where they are in excess of that required for the occasion, might be evidence from which lack of good faith is to be inferred." In Delaney, the Tribunal concluded that there was material that gives rise to a question about the respondent's true reason for publishing the document. At [37] the Tribunal noted: "it is not moderate language and it could be argued that it is in excess of that required for the occasion and so the evidence of the contents of the pamphlet could give rise to an inference of lack of good faith and improper purpose: Deen v Lamb at page 7".
3. By contrast, the allegations of the conduct in this case are not the kind of allegations that are suggestive of bad faith. As can be seen from above at [4], the core allegation relates to a failure to recognise the appellant as Mr Lunson's senior next of kin. There are related allegations that Sgt Smith provided incorrect information that the appellant would not be recognised as next of kin, and that the appellant was not able to view Mr Lunson's body. The allegations, if accepted, suggest inadequacy in the processes and procedures of the Coronial Division to recognise and accommodate same sex relationships. If accepted in full and viewed in the most favourable light from the appellant's perspective, they do not suggest bad faith.
4. There is always a possibility that something unexpected may fall from an inquiry. However, the scheme of the AD Act is that essentially the inquiry is the hearing of the complaint, involving consideration of evidence pertaining to the factual allegations and the narrative set out in the complaint, including the evidence gathered by the Commissioner during the investigation. The Tribunal has power to require any person to provide and produce specified information and documents, and require any person to appear before it to give evidence: the AD Act, ss 80 and 87. However, the existence of these powers does not suggest it would be appropriate for the Tribunal to conduct a fishing exercise just in a case some new evidence came to light suggestive of bad faith.
5. In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19], Heerey, Moore and Kiefel JJ expressed the view that bad faith by a decision-maker should not be raised unless there are proper grounds for doing so:

"An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107]- [108]."

1. It was argued for the appellant that bad faith has a broader meaning in a public law context. It does not impute moral obliquity and can mean a failure to act for legitimate reasons: SZFDE v Minister of Immigration and Citizenship [2007] HCA 35, 232 CLR 189 at [12]- [13]. The meaning of the phrase does not need to be determined, there is no error of law asserted in relation to the Chairperson's construction of s 67, and the meaning of bad faith, as set out above, involving blatant conduct such as a wilful or reckless misuse of power and a failure to honestly attempt to exercise the relevant power. I do observe, though, that the meaning attributed to the term by the Chairperson in the context of s 67 seems sound. We are concerned with the context of an immunity clause where the erosion of judicial independence is at stake.
2. It is entirely undesirable that faint references to "bad faith", not suggested by the factual allegations the subject of a complaint, should be enough to trigger an inquiry, rendering the immunity provision nugatory.
3. The appellant refers to the contents of the Commissioner's referral report as giving real force to the proposition that the question of bad faith was a moot point in this case:

"As discussed above, it is possible the Coroner may have erred in considering whether Mr Jago and Mr Lunson were in a significant relationship at the time of Mr Lunson's death. If it is established the Coroner did misapply the provision, it would need to be considered why. It may have simply been a mistake or due to ignorance, or it may have been (or could be inferred to have been) for a malicious reason."

This is no more than the proposition that motive or purpose will be a question of inference.

1. Later, the Commissioner noted that the application of the immunity is properly a matter for the Anti-Discrimination Tribunal to determine after hearing evidence of the parties at inquiry. This commentary from the Commissioner about the approach that the Tribunal ought to take is not binding on the Tribunal, and it is rather an explanation for the Commissioner not determining the jurisdictional issue. Her characterisation of the evidence of the issues arising may be useful in terms of highlighting matters for the Tribunal's consideration but does not add anything beyond the complaint and the documents forwarded to the Tribunal. Her characterisation begs the question, is there any evidence to suggest mala fides in this case? The conduct is not suggestive of it.
2. There was no error in the Chairperson's conclusion that there was no allegation or suggestion of bad faith in the materials before the Anti-Discrimination Commissioner. The submission that the Chairperson erred in dismissing the complaint without an inquiry falls away when it is borne in mind that the Chairperson considered the complaint and all the materials, and concluded that the facts do not suggest bad faith. Further, he did not err in concluding that it was not necessary for him to hear evidence in order to determine whether or not the immunity in s 67 applies.
3. The submissions regarding this second error about premature determination went further. It was contended that there was error in the Tribunal not first considering whether the Coroner was acting "under an authority" given under the Coroners Act prior to making the determination with respect to bad faith. In essence, the argument was that an inquiry may reveal that s 67 did not have application because the discriminatory nature of the conduct meant that the Coroner was not acting under the Coroners Act. The short point for the appellant was that there is nothing in the Coroners Act that authorises discriminatory conduct. Moreover, it could not be determined whether the conduct falls within s 67 until there had been an inquiry. The Tribunal would have to satisfy itself of this jurisdictional fact, and this required a determination of the facts: Plaintiff S157/2002. There was jurisdictional error by the coroner which related to the act of the respondent in issuing a certificate permitting disposal of the deceased's body which was wrong in law, and the coroner failed to afford procedural fairness and give the appellant an opportunity to respond. If at inquiry these facts were found, this would mean there had been jurisdictional error by the Coroner, and it was argued that the implication of a finding of jurisdictional error was that s 67 would not apply. The appellant emphasised his point that there had been jurisdictional error by the Coroner by highlighting that subsequently, in response to submissions from the appellant's solicitor and others, Coroner McTaggart made a determination that the appellant and Mr Lunson were in a "significant relationship" at the time of his death.
4. On this appeal, it was made clear that the error lies in the Tribunal determining the issues of jurisdictional error and the application of s 67 of the Coroners Act before the inquiry was held. The appellant made clear in his submissions that he was not asking this Court to decide whether there was an error of law by the Chairperson of the Tribunal in the determination regarding the application of s 67, and whether the alleged conduct was done under the Coroners Act, or whether there was an error that vitiated jurisdiction_._ It can be seen that these determinations do not fall within one of the five errors identified. The error is rather, that they were issues that had to be determined at a hearing_._ Essentially, the making of a determination as to jurisdiction in advance of the inquiry was where the case derailed.
5. The appellant relied on a passage from a judgment of Gibbs J in R v Federal Court of Australia; Ex p WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190. The question was whether prohibition lies to the Federal Court. The case involved a football club, and the jurisdiction of the Federal Court depended on whether the Trade Practices Act 1974 (Cth) applied and, more particularly, whether the club was a trading corporation. In a passage relied upon by the appellant at 215, Gibbs J explained that if the application for prohibition had not interrupted the proceedings before the Federal Court, that court would have been obliged to decide that question for the purpose of determining whether it had jurisdiction. Gibbs J stated this was clearly explained by Devlin J in R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1 at 10, and quoted the following passage:

"When, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to their jurisdiction, the tribunal have to make up their minds whether they will act or not, and for that purpose to arrive at some decision on whether they have jurisdiction or not. If their jurisdiction depends upon the existence of a state of facts, they must inform themselves about them, and if the facts are in dispute reach some conclusion on the merits of the dispute. If they reach a wrong conclusion, the rights of the parties against each other are not affected. For, if the tribunal wrongly assume jurisdiction, the party who apparently obtains an order from it in reality takes nothing. The whole proceeding is, in the phrase used in the old reports, coram non judice."

It is accepted that these are well-established principles.

1. The appellant argues that the judgment of Gibbs J is instructive about what should have happened here, but did not. It is contended that "the Tribunal made no inquiry into the facts which were mixed questions of fact and law on whether the immunity under s 67 applied".
2. It is necessary to consider what transpired before the Tribunal, and the issues raised and arguments presented before the Tribunal. The parties made comprehensive submissions. It was argued for the appellant that "if Coroner Carey was found to have made an error of law on discriminatory grounds then he must necessarily have made an error outside of jurisdiction. Section 67 should not be interpreted to immunise such acts". After referring to definitions of "error of jurisdiction", the appellant's written submissions continued:

"In other words, the discrimination must necessarily have occurred outside of the law (or as it was formerly known ultra vires), and thereby outside of the legislative framework which directs that decision. Indeed, section 67 explicitly states that it only extends to powers exercised 'under an authority given under this Act.' The Act does not give a power to unlawfully release a body to the wrong person, nor does it authorise the coroner to discriminate in the undertaking of her or his functions. Section 67 does not apply to a decision which is not part of the coroner's lawful functions and duties."

1. A summary of the appellant's contentions as to the application of s 67 were summarised by the Chairperson in his reasons for decision:

"1 A certificate made under section 32 of the Coroners Act is issued pursuant to an administrative decision under enactment containing express and implied duties to dispose of the body to the senior next of kin.

1. The determination as to whether the purported exercise of power by Coroner Carey under s 32 was discriminatory is a determination of jurisdictional error.
2. Section 676 only extends to civil and criminal suits, not review for jurisdictional error.
3. Errors of jurisdiction are not authorised by the Act.
4. If section 67 does in fact purport to immunise the Coroner from review from jurisdictional error it is invalid under the principle set down in Kirk.
5. Regardless, section 67 cannot ouster jurisdiction until a finding of discrimination is made, as such a finding indicates or is determinative of bad faith by a decision maker."
6. The Attorney-General argued before the Tribunal that the appellant's submissions appear to confuse legal proceedings before this Tribunal with a manner of quasi-judicial review. "The Tribunal is not tasked with jurisdictional supervision of the Respondent, and the Complainant's submission to this effect are untenable ...". It was submitted the immunity would apply regardless of legal error: Rajski v Powell at 534. The conduct had to simply be "done" under the Coroners Act and the immunity would apply. In any case, it was argued that there was no jurisdictional error in relation to the issue of the s 32 certificate.
7. On the question of the application of s 67, the Chairperson of the Tribunal determined as follows:

"... Sergeant Smith, by virtue of his office as a police officer, is a coroner's officer and such an officer's duties include assisting a coroner in carrying out the coroner's duties under the Act and carrying out all reasonable directions of a coroner. He was therefore acting as authorised by the Act when he provided information to the complaint (sic).

Accordingly Sergeant Smith's conduct in providing incorrect information to the complainant and Coroner Carey in failing to recognise the complainant as Mr Lunson's senior next of kin and issuing the s32 certificate are things done under the Act. The provision of information to a person about an investigation must be a thing done under the Act, even if the information is inaccurate, and further the failure to recognise the complainant as Mr Lunson's senior next of kin is an act which is probably best described as an omission to do something under the Act; ie the 'failure' to identify the complainant as Mr Lunson's senior next of kin was a 'thing' done under the Act. The issuing of the s32 certificate is clearly a task required of a coroner who is investigating a death and therefore, in my view, amounts to something 'done under this Act ...'."

The learned Chairperson went on to also accept the arguments for the Attorney-General that the question of jurisdictional error did not arise and that the appellant's submissions appeared to confuse the task of the Tribunal with proceedings dealing with quasi-judicial review.

1. A consideration of the submissions presented before the Tribunal makes it clear that the parties fully argued the application of s 67 and the related questions of jurisdictional error. The submissions were made on the assumption that the facts in the complaint, and the supporting documentation provided by the Commissioner to the Tribunal, were true. The questions of law that were considered on that hypothetical factual basis were whether s 67 provided immunity in the case of the conduct that was alleged. Essentially, the Tribunal was concerned with questions of statutory interpretation and the construction of s 67. The Tribunal had the benefit of full argument on these questions of law. The Tribunal then determined the questions of law and whether s 67 would apply on the basis of the appellant's factual assertions. It would have been a different matter if the Tribunal had proceeded to decide findings of fact without evidence, or if the Tribunal had questioned the truth of the facts provided. I detect no error in considering this preliminary question of jurisdiction in this way. It was the type of issue that lent itself to that kind of hypothetical consideration and it was an efficient way to proceed. If, on the facts favourable to the appellant, the immunity would necessarily apply to foreclose proceedings, there could be no point in proceeding further. I can see no error in the Tribunal considering the question at stake regarding s 67 and the application of the immunity on that hypothetical basis. I add that the course taken by the Tribunal is also consistent with the principle that the court or tribunal should decide whether it has jurisdiction to proceed, and, if their jurisdiction depends upon the existence of facts, resolve those facts. It need not decide disputed facts if, assuming those facts are true, being the approach most favourable to the party arguing the court has jurisdiction, a condition of jurisdiction has not been satisfied.
2. While the appellant has disavowed a challenge to the Tribunal's conclusions regarding s 67, the contentions in some respects appeared to challenge the conclusions reached by the Tribunal. Naturally, the appellant was concerned to emphasis the validity of the arguments regarding the law and the complexity of the legal arguments that arose before the Tribunal, and that point is taken. The intervenor was drawn into arguments and defended the conclusions reached by the Tribunal. However, the arguments, insofar as they challenge the Tribunal's conclusions, do not fall for consideration. The conclusion regarding the construction of s 67, and that the alleged conduct of the coroner and the coroner's associate fell within s 67, is unassailed on this appeal.
3. However, I do refer to a discrete aspect of the appellant's arguments regarding the construction of s 67. At par 25(e) of the written submissions with a footnote to ground 1(c)(iii) it is said:

"(e) the Tribunal Member erred in not first considering or determining whether the Coroner was 'acting under an authority given under this Act', prior to making the determination of 'bad faith'. Section 67 provides a clear requirement for the Tribunal Member to determine whether the alleged discriminatory conduct is conduct by a person 'acting under an authority' under the CA, prior to any assessment of 'bad faith'. As a consequence, the Tribunal Member's misapprehension as to the operation of s 67 of the CA constituted a constructive failure to exercise the Tribunal's jurisdiction in the manner required by both the Act and the CA."

Even at a superficial glance it can been seen that s 67 is concerned with providing immunity with respect to "anything done under this Act" by the coroner or a "person acting under an authority given under this Act", and that the phrase "authority given under this Act" are not qualifying words relating to a coroner.

1. It is convenient to turn to the fifth error at this stage as it is closely related to the second.

The question of jurisdiction, having regard to the immunity conferred by s 67, involved difficult and inter-related matters of mixed fact and law, and the Tribunal denied the appellant procedural fairness in purporting to determine those matters summarily.

1. The fifth identified error challenges the procedure adopted by the Tribunal in determining its jurisdiction as a preliminary issue. It is convenient to begin with a consideration of the approach taken by the Tribunal. The key steps in the course taken by the Tribunal, and the position advanced by the parties at each step are:
   • After the complaint was referred to the Tribunal for inquiry, a telephone conference was convened with the legal representatives for the appellant and the Attorney-General as intervenor. They requested that the question of jurisdiction be decided as a preliminary matter and by way of written submissions. The facts were not admitted but it was accepted that the Tribunal should consider jurisdiction on the basis of the alleged conduct.
   • In written submissions, the Attorney-General raised a number of jurisdictional issues. These concerned whether s 22(1)(f) regarding the area of activity involving "activity in connection with administration of a law of the State" had application to the complaint, and the application of the immunity in s 67 of the Coroners Act and s 10A of the Magistrates Court Act.
   • In written submissions the appellant's legal representative presented legal argument on these jurisdictional issues in response to the Attorney-General's submissions. The appellant argued that determination of the issue of bad faith pursuant to s 67 of the Coroners Act should await the inquiry. It was contended that bad faith was inherent in the discriminatory conduct if established at inquiry.
   • After the written submissions were exchanged, a conference was convened and it was confirmed on behalf of the parties that they requested that the Tribunal deal with the questions raised on the basis of the written submissions.
   • The Tribunal considered the allegations of discriminatory conduct on the hypothetical basis they were established. In this way the Tribunal determined whether the asserted facts, if proved, suggested bad faith.
2. It is worth considering some aspects of what transpired in a little more detail. As mentioned, the Attorney-General's submissions raised the immunity under s 67 as a bar to the Tribunal's jurisdiction. The submissions for the Attorney-General on bad faith were as follows:

"Finally, there was no allegation or material to suggest that the alleged conduct was done in bad faith. The intention and effect of s 67 of the Coroners Act is to create a general immunity, with an exception: it does not apply to acts done in bad faith. Accordingly, the presence of bad faith is a matter to be proved by a person alleging it. In this case, bad faith was not alleged or suggested by any material before the Commissioner. In those circumstances, it was clear that there was no bad faith and hence it was an error of law for the Commissioner not to determine that, and it would also be an error of law for the Tribunal to fail to determine that there was no bad faith (for the purpose of considering whether or not the immunity in s 67 applies as part of the preliminary consideration of jurisdictional issues)." [Footnotes omitted.]

1. The appellant argued in his written submissions that a bad faith finding could not be made by the Tribunal before an inquiry was held. The appellant made clear his position that the question of whether s 67 precluded the Tribunal's jurisdiction necessarily occurs at the inquiry (not investigative) stage of proceedings.
2. The appellant's written submissions to the Tribunal on the question of bad faith provided:

"6 Regardless, section 67 cannot ouster jurisdiction until a finding of discrimination is made, as such a finding indicates or it determinative of bad faith by a decision maker.

[75] In any event, if section 67 is to apply the existence of good or bad faith is not something that is left to either party to conclusively determine it is for the Tribunal to decide as part of these proceedings. Indeed, it is the Complainants submission that the Tribunals function is to determine whether there was bad faith in respect of a decision under enactment. That is, a finding of discrimination is tantamount to a finding of bad faith. Or, at the very least, it is a substantial indicator of bad faith by the decision maker.

[76] There is no clarification about what amounts to bad faith in the Coroners Act. It was also not discussed in the second readings speech or committees relating to the passage of the bill through parliament. There is also very little common law direction about the test for bad faith, although slightly more about 'good faith' and the two questions are largely interrelated. In short, the authorities indicate that bad faith is a subjective indictment on the state of mind of the decision maker, involving a wilful or reckless misuse of power. That may be indicated by the decision maker making a 'determination on the premise of facts or circumstances which it knew to be untrue, or by making no real attempt to address the applicable statutory criteria'. It may also be implied by the circumstances and outcome of the decision, where it is, is so 'blatant' that the decision-maker has not honestly attempted to exercise the relevant statutory power.

[77] Hence, a finding of discrimination strongly suggests or exhibits bad faith on behalf of the decision maker. Discrimination involves a conscious act. In the case of administrative discrimination, it involves a decision maker exercising their power because of the race, sexual preference, and so on of a person subject to the exercise of their power. If the exercise of power is not permitted by law, or is contrary to the duties of the decision maker, then it would indicate that the decision maker intentionally exercised power based on facts 'which it knew to be untrue, or by making no real attempt to address the applicable statutory criteria [emphasis added]'. In other words an inquiry into discrimination arguably informs, and is a precursor to a finding of mala fides as it evidences both a subjective intention to misuse power and the basis of the improper exercise itself."

1. It can be seen from the appellant's written submissions that he contended that the issue of bad faith had to be determined at inquiry, not as a preliminary issue, because the discrimination or prohibited conduct may in itself reveal or amount to bad faith. Counsel on his behalf presented full argument that bad faith may be disclosed by the fact of discrimination or prohibited conduct. The assertion of bad faith rested on the prospect of a finding that the allegations that had been made by the appellant about the conduct of Coroner Carey and Sgt Smith would be established. Those allegations were examined by the Chairperson of the Tribunal, on the assumption they were true, and found not to "suggest" bad faith. Now on this appeal, the appellant does not contend that the Chairperson's conclusion that there was no suggestion of bad faith is in error.
2. The appellant contended before the Tribunal that discriminatory or prohibited conduct would inform a finding of mala fides. He relied upon the allegations of discrimination or prohibited conduct, not some new evidence that may have been revealed by the exercise of the Tribunal's investigative powers. Indeed, the appellant did not then point to any investigative avenue such as a requirement to a person to provide and produce specified information or documents to the Tribunal (s 80 of the AD Act) as a step that that might have revealed evidence of bad faith.
3. The appellant requested that the Tribunal not make a bad faith "finding" before the inquiry was held. No such finding was made, as I have explained. While, as previously noted, the Chairperson of the Tribunal spoke in terms of making a determination that there was no bad faith, the balance of the Chairperson's reasons at [45] makes it clear that there was no need for evidence as there was "no allegation or suggestion of bad faith".
4. At the hearing of the appeal, the appellant made the following submissions. The appellant argued that s 67 cannot ouster jurisdiction until a finding of discrimination is made, as such a finding indicates or is determinative of bad faith by a decision-maker. It was pointed out by the appellant that the Tribunal had not commenced to assess all potentially relevant evidence as to whether bad faith was present. The Tribunal had investigative powers under the Act and could have inquired whether there was bad faith. It was submitted that in determining bad faith as a preliminary issue "there was in truth a constructive failure to exercise the power." It was submitted that "the Tribunal Member's finding demonstrated a misapprehension of his powers and functions under the Act and constituted a failure to exercise the Tribunal's jurisdiction in the manner required by law." There was reliance on Murphy v State of Victoria (above) as acknowledgment that some issues, particularly when the documents needed to prove them are within the respondent's exclusive possession or power, should not be determined on the pleadings. Furthermore, in that case, given the issue involved a question of fact and degree which turns on all the relevant facts which were not yet before the court, the result of what had occurred denied the appellant a fair hearing. Here, it was pointed out that the Commissioner's information requests of the respondent had not been complied with. The Tribunal had not commenced to assess all potentially relevant evidence as to whether bad faith was present.
5. Now, on this appeal, the appellant argues that there were investigative steps available to the Tribunal that should have been undertaken before an inquiry was held. By way of example of why the summary dismissal was premature, the appellant pointed to a s 97 notice issued by the Commissioner seeking information from the respondent and that that had not been answered.
6. The Attorney-General now submits on this appeal that the appellant and the Attorney-General had both requested that the jurisdictional issues be decided on a preliminary basis, by way of written submissions, and that those submissions addressed the application of the immunity under the Coroners Act, s 67. In written submissions, the appellant had made extensive submissions in relation to the immunity, and argued that bad faith was suggested by the allegation of discrimination itself. The appellant clearly contemplated and desired a determination in relation to the issue of bad faith.
7. Further to that point it was submitted that while the appellant claims that he has not been afforded procedural fairness, he has made no attempt to demonstrate that the outcome on the issue of bad faith would have been different if it had been dealt with at an inquiry, rather than on the basis of the written submissions. The appellant referred to the unanswered s 97 notice and argued it was unlikely to yield any information bearing on the issue of bad faith.
8. Relevantly, the Chairperson of the Tribunal made reference to the unanswered s 97 notice. Evidently, it was the subject of an application by the Office of the Solicitor-General to the Supreme Court for judicial review, and at the time of the proceedings before the Tribunal had been adjourned sine die. At least at that time, it seemed that the notice was not being pressed by the appellant. Even now, on this appeal, it is not suggested that there is any more than a possibility that answers to the s 97 notice would have advanced the appellant's case.
9. In these circumstances, there was not a denial of procedural fairness. The appellant was on notice that the question of the application of s 67 and of bad faith was to be considered by the Tribunal as a preliminary issue, and provided written submissions as to why the question of bad faith should not be dealt with in that way. He did not put all his eggs in this basket. He argued that bad faith may be disclosed by proof of the alleged discrimination or prohibited conduct. Indeed this was integral to his argument as to why bad faith needed to be determined at an inquiry. Those allegations were considered by the Chairperson on the assumption that they would be established at an inquiry. They were regarded by the Chairperson as not raising any suggestion of bad faith. The Chairperson considered all the allegations made. This is not a case where the Tribunal confined itself to those facts that were admitted or agreed by the respondent to the complaint. Knowing bad faith was being considered by the Tribunal as a preliminary issue and likely to be determined on that basis, the appellant did not press for any particular investigative steps to be taken by the Tribunal or a particular issue to be first explored. There is no more than a mere possibility that something might have emerged from an investigation by the Tribunal. If a suggestion of bad faith was not there, it is not the Tribunal's role to go looking elsewhere for a suggestion of such a serious allegation. There has been no denial of procedural fairness, particularly given that bad faith was said to arise from factual allegations that were before the Chairperson, and considered on the assumption that they would be established.
10. Of course, if s 10A of the Magistrates Court Act has application to oust the Tribunal's jurisdiction, there is no need to consider the issue of "bad faith", as it does not arise under this provision.

Error 3 - The statutory immunities are inconsistent

Section 10A has no application in any event as the immunity it confers is inconsistent with the immunity in s 67, which must prevail having regard to the principles in Commissioner of Police v Eaton.

1. The Chairperson concluded that the immunity in s 67 of the Coroners Act applied to protect Coroner Carey and, in the performance of his office as a temporary magistrate, he was also protected by the immunity set out in s 10A of the Magistrates Court Act. Coroner Carey was appointed a temporary magistrate under s 4 of the Magistrates Court Act for the period in question. The definition of "coroner" under s 3 of the Coroners Act includes a person appointed as a coroner under that Act and includes a magistrate. The jurisdiction conferred on him by the Coroners Act was conferred on him by virtue of his position as a magistrate, not as a person appointed as a coroner.
2. The appellant contends that the Chairperson of the Tribunal, in applying both s 67 of the CA as well as s 10 of the Magistrates Court Act, failed to address or consider the inconsistency between the two provisions.
3. The appellant's submissions were as follows:

"[13] That finding was contrary to rules of statutory construction that where a specific power or provision applies, a more general power or provision will not apply, at least to the extent of any inconsistency: see 'specialia generalibus derogant' (special words derogate from general ones) and 'expressum facit cessare tecitum' (when there is express mention of certain things, then anything not mentioned is excluded). The general immunity in s 10A is inconsistent with the more limited immunity in s 67. The appellant contends that the more specific and limited provision in s 67 relating to the Second Respondent (in the present context, the Coroner and officers of the Coronial Division) applied and that s 10A of the MCS did not apply." [Footnotes omitted.]

1. For this contention the appellant relied on Commissioner of Police for NSW v Eaton [2013] HCA 2, 252 CLR 1 at [21], [40]-[48], [72]-[78], [90]-[92] and [100]. The appellant's submissions went on to quote from Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, per Gavan Duffy CJ and Dixon J:

"Where the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instruction which might otherwise have been relied upon for the same power."

1. The question of the relationship between two statutes is one of legislative intention. In Eaton there was consideration given to the application of various statutory principles. In a passage from the judgment of Crennan, Kiefel and Bell JJ at [45], relied upon by the appellant, there was a quote from Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553. Lord Wilberforce considered the circumstances where the later statute does not expressly repeal or override the earlier, and pointed to several possible interpretations:

"The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?"

1. As noted by Crennan, Kiefel and Bell JJ in Eaton, Lord Wilberforce went on to observe that discussion of these matters commonly involves consideration of the rule of construction (expressed in the maxim "generalia specialibus non derogant") which presumes that a later, general enactment is not intended to interfere with an earlier, special provision unless it manifests that intention very clearly. It is noted that in this case the general provision in the Magistrates Court Act is the earlier provision, resulting from an amendment to the Act in 1992, and the Coroners Act commenced in 1995.
2. The plurality judgment in Eaton referred to Ferdinands v Commissioner of Public Employment [2006] HCA 5, 225 CLR 130 and statements regarding statutory construction. In the joint judgment of Gummow and Hayne JJ, it was pointed out that inconsistency was at the root of the principle of "implied repeal". Here the argument for the appellant hinges on inconsistency. In the same judgment in Ferdinands, their Honours observed at [49] that "the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced". Again, in Ferdinands, Gummow and Hayne JJ at [18] stated that deciding whether the two statutes could not "stand or live together" in the relevant respect "requires the construction, of and close attention to, the particular provisions in question." In Eaton, Crennan, Kiefel and Bell JJ at [78], referred to the principle of consistency as informing the construction of two statutes. The statutes should be construed in a way which best achieves a harmonious result: see also Gageler J at [95]-[100].
3. Here, the later Act was the Coroners Act which contains the more specific provision. I understand the argument to be that the provisions are inconsistent in their application to the case here, leading to different results and the specific provision should prevail. The question arises as to whether the two enactments are "so inconsistent or repugnant that they cannot stand together": Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 per Barton J. The presumption that two statutes do not contradict one another, referred to in Ferdinands, is a strong presumption. In Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276, Fullager J said "that there is a strong presumption that the legislature does not intend to contradict itself but in fact intends both Acts to operate within their given sphere". As noted by Pearce in Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed 2019) 284 [7.12]: "It may well be that provisions of Acts that appear to conflict are in fact intended to operate, as it were, in parallel."
4. Here, the sections in the two Acts in question are capable of independent existence and, to some extent overlap. The immunity in s 10A of the Magistrates Court Act applies to a magistrate in performing any function or exercising any power of the office of magistrate. It is a comprehensive immunity providing the same immunities as a puisne judge of the Supreme Court under s 6(1) of the Supreme Court Act 1887. The provision in the Coroners Act relates to the coroner and a person acting under an authority given under the Coroners Act. It protects them from being liable to any legal proceeding in relation to anything done under the Act unless it was done in bad faith.
5. The appellant presented an argument that, as a matter of statutory construction, s 10A did not apply to magistrates acting as coroners, and I will deal with that below. For the purpose of considering the inconsistency argument, and "error three", I assume s 10A has application and the issue is the co-application of s 10A and s 67. The immunity in s 10A of the Magistrates Court Act would apply where a magistrate performs, as Coroner Carey did, the role of a coroner under the Coroners Act. Magistrates are invested with the jurisdiction to perform the duties of a coroner under the Coroners Act, by virtue of the fact that they are magistrates: Magistrates Court Act, s 13(3). When a magistrate is called upon to act as coroner, he or she is performing duties of his or her office as magistrate.
6. These provisions have independent fields of operation. As stated, they overlap to an extent, but in that area of overlap, they can operate harmoniously. A coroner who is also a magistrate may, in carrying out an authority given under the Coroners Act, have parallel immunities. There is no contradiction in this. In a case where the immunities both operate in the same sphere, they provide a double layer of protection. There is no anomaly, the coroner as a magistrate would have a general comprehensive immunity that all magistrates would have, and immunity as a coroner would not add to or detract from this. It would not have any work to do in that precise factual situation, but that does not point to contrariness. The presumption that statutes do not contradict one another has not been displaced.
7. A judicial officer may invoke two immunity clauses if they both have application. He or she is no more protected than they are by the most comprehensive of the two. This would mean a magistrate performing the functions of a coroner would have the same protection as a magistrate performing other duties. There is no statutory indication to the contrary.
8. I turn to another argument, concerning s 10A of the Magistrates Court Act which is additional to the point about inconsistency, and which, strictly speaking, falls outside "error three". It is that s 10A of the Magistrates Court Act does not apply to magistrates authorised to exercise jurisdiction under the Coroners Act. The words of s 10A were highlighted "A magistrate, in performing any function or exercising any power of the office of magistrate, ...". The appellant argued that here Coroner Carey was not exercising powers or functions of a magistrate under the Magistrates Court Act. Rather, he was exercising powers under a different Act, the Coroners Act. The appellant relied upon Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 and the judgment of Toohey J at 136 which considers the meaning of the word "power":

"Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred': Parsons v Martin[23]; see also Jackson v Sterling Industries Ltd[24].

[23] [1984] FCA 408; (1984) 5 FCR 235, at p 241

[24] [1987] HCA 23; (1987) 162 CLR 612, at pp, 630-631"

1. The point is made that a coroner does not exercise any jurisdiction under the Magistrates Court Act. Their functions are solely confined within the Coroners Act. When considering whether a magistrate is performing any function or exercising any power of the office of magistrate, it is necessary to have regard to s 13(1) and (3) of the Magistrates Court Act:

(1) A magistrate has jurisdiction as a magistrate throughout the State.

(3) A magistrate may exercise and perform, throughout the State, all the jurisdiction, powers, and functions conferred and imposed on magistrates by or under any law of the State."

1. It is argued that the Coroners Act is not such a law as it does not confer jurisdiction, powers or functions "on Magistrates". Rather, it provides in s 10 for the appointment of "coroners" who are defined in s 3 as including a magistrate.
2. I do not accept this argument. As a magistrate, Coroner Carey could exercise and perform the powers and functions conferred and imposed on magistrates by or under any law of the State: s 13(3) of the Magistrates Court Act. The power and function need not be in the Magistrates Court Act. As a magistrate, he had the powers and functions conferred on him under the Coroners Act when performing duties as a coroner. As a magistrate, he is a coroner: Coroners Act, s 3. When a magistrate is acting as a coroner he or she is performing a function or exercising a power of the office of magistrate for the purpose of s 10A of the Magistrates Court Act. As a magistrate when acting as a coroner he has conferred upon him the functions and powers under the Coroners Act. As a consequence of legislation and logic, in performing those functions and powers he has immunity under s 10A of the Magistrates Court Act. For the reasons I have expressed above, there is no inconsistency with the immunity Coroner Carey had as a coroner.
3. Evidently, this additional argument and the argument regarding "error three", addresses ground 1(d) that the Tribunal erred by failing to find that the immunity under s 67 was the only relevant immunity. Both the error and ground 1(d) are not made out. I add that even if "error three", had been established, there is a question about whether that would translate into success for this appeal. There would remain the protection afforded by s 10A to the Chief Magistrate as responsible for the Coronial Division and protecting the magistrates if the respondent is correctly characterised as the Magistrates Court, see [82]-[84].

Error 4 - Appellant did not bear onus of proving bad faith

The Tribunal erred in law in determining that the appellant bore the onus of establishing bad faith and that he had failed to discharge that onus. Rather, the Tribunal had to inquire into and determine for itself whether it had jurisdiction in respect of the complaint referred for inquiry, and it failed to do so.

1. "Error four" lies in the Chairperson's determination that the appellant (as the complainant) "had an onus to discharge with respect to 'bad faith'." The Chairperson stated as follows:

"[44] The intervenor submits, given the construction of s67 of the Coroners Act 1995 and in particular the use of the word 'unless', it is implied that the presence of bad faith is a matter to be proved by the person alleging that fact. This is consistent with the legal burden of proof that exists in common law countries that 'he who asserts must prove.' That is it is up to the complainant to establish there has been bad faith, not for the respondent to deny it. In addition it would be unduly burdensome for a coroner to have to prove the absence of bad faith before being permitted to rely on the immunity. For a discussion of such provisions see Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at [7] to [9], [27]. In particular the Court said at [8]:

'But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.'

[45] In this case s67 creates a general immunity but goes on to deny that immunity in a case of bad faith; i.e. by reason of additional or special facts. Accordingly the burden of proof in establishing the immunity does not apply is on the complainant ..."

1. It is argued for the appellant that there is no onus on a jurisdictional issue. It is for the court or tribunal to satisfy itself whether it does or it does not have jurisdiction. Indeed, it was argued for the appellant that the Tribunal was in error in regarding complainants as generally having an onus of proof with respect to complaints under the AD Act. The Tribunal's approach that there is an onus of proof upon complainants to establish their claims of discrimination or prohibited conduct is apparent from the reasons at [36]:

"In practice an inquiry is conducted in an adversarial manner but with less formality than in a court. The onus of proof is on the complainant on the balance of probabilities and applying the approach established in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362." [Footnote omitted.]

1. There was reliance by the appellant on a decision of McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357-358, 365-366, 368-369 and Minister for Immigration v Li [2013] HCA 18, 249 CLR 332. In McDonald, a decision of the Full Court of the Federal Court, observations were made that there is no evidential onus of proof in proceedings before the Administrative Appeals Tribunal when the role of the Tribunal is to review a decision of a delegate of the Director-General of Social Security under the Social Security Act 1947 (Cth) to cancel a pension. To be qualified for the particular pension the person had to be permanently incapacitated for work. The Tribunal was required to put itself in the position of the administrator and to determine the review on the basis of the material before the Tribunal.
2. The High Court decision of Minister for Immigration v Li considered the function and powers of the Migration Review Tribunal. It was noted that there were similarities to the kind of review provided by the Administrative Appeals Tribunal. It was noted that, as for the Administrative Appeals Tribunal, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings.
3. In the alternative, it was argued for the appellant that if there is an onus of proof on the question of "bad faith", it lies on the respondent to the complaint to establish that it was not acting in bad faith. Where the matter in issue lies solely within the knowledge of one party, that is strong ground for saying the onus is on that party to establish that fact: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 258-259; Waters v Mercedes Holdings [2012] FCAFC 80, 203 FCR 218 [16]-[19].
4. The only provision in the AD Act concerning the onus of proof relates to exceptions under the Act:

A person who relies on an exception referred to in Part 5 as a defence to a complaint is to prove that exception on the balance of probabilities."

Part 5 defences concern exceptions to the application of the AD Act involving charities, actions required by law, disadvantaged groups and special needs, and promoting equal opportunity for those groups.

1. I turn first to consider the appellant's argument that under the AD Act there is no onus of proof to be discharged by a complainant. The question of whether a party has an onus of proof is a matter of construction and is to be determined with respect to the statutory provisions regarding the functions and powers of the particular tribunal and the nature of the proceedings. It is necessary to be cautious in considering authorities concerned with different statutory schemes. Unlike the Migration Review Tribunal and the Administrative Appeals Tribunal, the Anti-Discrimination Tribunal is concerned with proceedings where issues are joined and there is a contradictor. Further, the observations by French CJ at [10] in Minister for Immigration v Li note that reviews undertaken by the Migration Review Tribunal are non-adversarial and that they involve no contradictor nor the joining of any issue.
2. Contrary to the submissions of the appellant, the Tribunal's approach that complainants bear an onus of proving their complaints is uncontroversial and does not need to be revisited. It is well established that in the context of anti-discrimination legislation involving statutory schemes similar to the AD Act, a complainant has the onus of proving the essential elements amounting to a breach of the particular section in question, and that the onus of proof is on the balance of probabilities: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 per McHugh J at 411; Sharma v Legal Aid (Qld) [2002] FCAFC 196, 115 IR 91 at [40]; C Ronalds, Discrimination Law and Practice, 3rd ed pp 201-204. The onus is upon the appellant to prove his claims on the balance of probabilities and applying the approach established by Briginshaw v Briginshaw [1938] HCA 34, 1939 60 CLR 336 at 362.
3. Once an act falls within the terms of a section, it is for the respondent to show that it is exempted: Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, 135 FCR 105 at [74] applying Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519. The passage from Vines at 519 is that quoted by the learned Chairperson of the Tribunal:

"But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter ...".

The point made in Bropho at [77] that inferences concerning reasonableness and good faith may not be so readily compatible with the notion of the burden of proof is readily acknowledged. Certainly, resolution of these questions is likely to resolve as a question of judgment and also by a consideration of whether the inference is soundly based on the foundational facts. However, this is not to deny the existence of an onus of proof.

1. The uncontroversial principle that the onus is on respondents with respect to exceptions and exemptions, is consistent with the provision that is made for exemptions in s 101 of the AD Act. This provision tends to support the proposition that otherwise, the onus is on complainants.
2. The "fourth error" is characterised as the determination that the appellant bore the onus of establishing bad faith and that he had failed to discharge that onus. Essentially, this is said to be an incorrect approach in the context of a preliminary jurisdictional issue. This characterisation of error suggests that the Chairperson concluded that the complaint should be dismissed because the onus had not been discharged. However, this is an incorrect characterisation of the approach taken by the Chairperson. The Chairperson was concerned with a preliminary argument and, as yet, the establishment of facts did not yet arise. The Chairperson considered the materials and assertions of fact, regarded them as if they were substantiated, and considered whether there was any suggestion of bad faith. I reiterate what I have said about the somewhat confusing remarks at [45] of the Chairperson's reasons, "I determine that there was no bad faith". As I have explained, they should be read in context and can be put to one side as not demonstrative of the approach taken by the Chairperson.
3. The question for the Tribunal was whether there was evidence that could establish certain facts. The conclusion was reached that there was no suggestion of bad faith. As noted in relation to the "third error", the Chairperson determined that there was no such suggestion. The Chairperson did not need to decide who bore the onus of establishing bad faith. It is not a case where the onus had any role to play. The question of who bore the onus was superfluous. The question for the Tribunal was what inferences might be drawn from the allegations regarding the conduct of Coroner Carey and Sgt Smith if that conduct was established. Having determined that there was no suggestion of bad faith, the immunity in s 67 of the Coroners Act applied to foreclose proceedings.
4. The approach of the Chairperson of the Tribunal that the onus of proof was on the appellant to establish his claim of discrimination and prohibited conduct is in accordance with well-established principle. The question of whether the Chairperson was correct in its determination that, in relation to the immunity, the appellant would need to prove "bad faith" at an inquiry does not need to be decided by me. I note the question of the onus in the context of an immunity clause received limited attention in the appellant's submissions which focussed on the onus of proof generally with respect to an inquiry under the AD Act. There are important matters of principle at stake in the context of immunity clauses and their purpose: Fingleton at [36]-[37]. It is perhaps worth mentioning the respondent's reference to authority that, in the context of an immunity with an exception of "bad faith", an absence of any evidence of "bad faith" would mean the immunity would apply: Lina Obieta v Human Rights and Equal Opportunity Commission [2007] FCA 85, 94 ALD 117 at [52]- [59] and [80]-[82].
5. In any event, in this case, the question of the onus of proof was immaterial to the approach taken by the Chairperson of the Tribunal, and had no role to play in his determination that there was no jurisdiction. The Chairperson was looking for a suggestion of "bad faith", on the assumption, favourable to the appellant, that the factual allegations would be established, and there was no such suggestion. The question of whether the onus had been discharged did not arise. If there was error as to the Chairperson's determination as to who bore the onus to establish "bad faith", it was immaterial. This "fourth error" is not established.

1. The "five errors" attributed to the learned Chairperson are not established. The appellant's submissions regarding the "errors" and the grounds of appeal do not demonstrate the learned Chairperson erred in his determination of jurisdiction in this case or in the procedure he adopted. The appeal will be dismissed.