Administrative Law - Judicial review - Reviewable decisions and conduct - Decisions to which judicial review legislation applies - Decisions of an administrative character - Decision of Anti-Discrimination Tribunal after an inquiry - Whether decision one of an administrative character.

Anti-Discrimination Act 1998 (Tas), ss12, 64(2), 65, 85, 89(1), 100.

Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309; Mazukov v Anti-Discrimination Tribunal [2004] TASSC 68; State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48; Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104, considered.

Judgment Number: [2010] TASSC 43

KENTISH COUNCIL v H M WOOD, M BARTLETT, M BRETT

1 On 1 September 2005, Mrs Sandra Taylor, then a resident of Sheffield, forwarded a complaint against the Kentish Council ("the Council") to the Anti-Discrimination Commission. She claimed that she had been discriminated against by the Council in various ways. The complaints generally related to access to various places. Mrs Taylor was confined to a wheelchair. Pursuant to the Anti-Discrimination Act 1998 ("the Act"), s64(2), the Anti-Discrimination Commissioner had a period of 42 days from the receipt of the complaint to either accept or reject it. Approximately one month after the complaint was lodged, Mrs Taylor advised the Commission that she had sold her Sheffield home because she could no longer live in Sheffield without the access she had complained about. She moved to live in Victoria. The Commission subsequently accepted the complaint for investigation and commenced an investigation.

2 Pursuant to the Act, s78, the Commissioner had the power to refer the complaint to a tribunal to conduct an inquiry into it. The tribunal to which any complaint might be referred was a tribunal established pursuant to the Act, s12. The Act did not give the tribunal a name. It has however, since its creation, been known as the Anti-Discrimination Tribunal ("the Tribunal"). Mrs Taylor's complaint was referred to that tribunal in August 2006 for an inquiry. Both the Council and Mrs Taylor were advised of this and were sent a document entitled "Referral Report" signed by the Commissioner. That report indicated that the parties had been unable to resolve their dispute despite attending conciliation.

3 The matter proceeded to a hearing before the Tribunal, and its members delivered a decision on 3 November 2009. The Tribunal found that the complaint had been made out and ordered the Council to pay the sum of $10,000 by way of compensation to Mrs Taylor. On 25 November 2009, the Council filed an application in this Court pursuant to which it sought a review of the Tribunal's decision pursuant to the Judicial Review Act 2000 ("the JR Act").

4 In the Council's application, the parties referred to as "the Respondents" were the members of the tribunal which made the decision complained of. Those members have submitted to any decision of the Court. The respondent, for the purpose of the hearing, was Mrs Taylor. Counsel for Mrs Taylor raised a preliminary issue by reference to the JR Act, s12(b). Given however that he was travelling from Victoria for the hearing, it was agreed that that preliminary issue would be argued at the same time as the substantive review application. At the hearing, counsel for the respondent raised a further matter by way of a preliminary issue. He submitted that the decision sought to be reviewed was not a decision of an administrative character as required by the JR Act, s4(1), and hence the Court had no power to entertain an application under the JR Act at all.

Preliminary issue - nature of the decision made by the Tribunal sought to be reviewed

5 Although this issue did not appear to be the principal argument of counsel for the respondent, it should perhaps be dealt with first because, if the challenge is successful, it will not be necessary to go further. The JR Act, s17, permits a person to make an application to review "a decision to which this Act applies". A "decision to which this Act applies" is defined in the JR Act as "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)."

6 Counsel for the respondent submitted that the decision of the Tribunal was not a decision of an administrative character. He submitted that, when the members of the Tribunal were conducting the inquiry which resulted in their decision, they were exercising judicial power. A number of characteristics of the process which led to the making of the decision were identified. These were:

•

The respondent's complaint was referred to the Tribunal for an inquiry to be held pursuant to the Act, s85;

•

The Tribunal heard evidence from witnesses;

•

The Tribunal assessed witnesses and made findings of fact based on their evidence;

•

The Tribunal applied legal principles to the facts as found;

•

The Tribunal handed down a decision which determined the matter of controversy between the parties.

7 Other characteristics of the Tribunal's process which are able to be identified by reference to the Act are:

• The Tribunal is to conduct an inquiry with as little formality as possible;

• The Tribunal may order a party to an inquiry to pay security for the costs of the other party;

• Evidence before the Tribunal may be given on oath or affirmation;

• The Tribunal may compel a witness to attend to give evidence;

• The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice;

• Orders of the Tribunal may be enforced;

• The Tribunal may order a party to an inquiry to pay the costs of another party;

• The decision of the Tribunal in this case, being one pursuant to the Act, s89(1), is capable of being appealed under the Act on a question of law or fact.

8 The nature of various decisions made under the Act, that is whether they were of an administrative character and thus susceptible to review under the JR Act, has been considered a number of times in this State. Counsel for the respondent drew a distinction between those cases and this one, that distinction being the nature of the function out of which any impugned decision arose. Counsel for the Council made reference to these cases in his submissions but, with respect, was somewhat loose in his characterization of the findings made. It is therefore necessary to review some of those decisions.

9 Dealing firstly with Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309, Blow J did not determine that the JR Act applied to all decisions of the Tribunal, nor did he specifically reject a submission that the Tribunal exercises judicial power, as asserted by counsel for the Council. In that case, a person made a complaint of discrimination to the Anti-Discrimination Commissioner. Pursuant to the Act, s64(2), the Commissioner had 42 days to either accept or reject the complaint. The Commissioner rejected the complaint. The complainant sought a review of that decision by the Tribunal pursuant to the Act, s65. Under that section, if the Tribunal is satisfied that the Commissioner has made a correct decision, the complaint lapses. The chairperson of the Tribunal reviewed the decision of the Commissioner and concluded it was correct. The complaint therefore lapsed. It was the chairperson's decision the complainant sought to review.

10 His Honour reviewed how the Tribunal generally was constituted and determined that it was not a court. He then went on to consider the nature of the particular decision sought to be reviewed. He concluded at par[15]:

"A decision by the Commissioner to reject a complaint is no more than a decision not to conduct an investigation. It is an excellent example of a decision of an administrative character. In light of the factors that I have referred to, I see no reason to regard any differently a decision by the Tribunal that it is satisfied that the Commissioner made a correct decision in rejecting a complaint. I therefore reject the submission that the Court lacks jurisdiction. I hold that the Court has jurisdiction to review the respondent's decision pursuant to the Judicial Review Act, s17(1)."

That conclusion was clearly correct having regard to the nature of the decision which was made and sought to be reviewed.

11 The issue arose again in Mazukov v Anti-Discrimination Tribunal [2004] TASSC 68. In that case, the Commissioner had rejected certain complaints. The complainant sought a review of that decision by the Tribunal. The Tribunal concluded the Commissioner's decision was correct. By reference to the Act, s72(1), the complaints then lapsed. The complainant sought to appeal the decision of the Tribunal. Underwood J, (as he then was), followed the decision of Blow J in the Von Stalheim matter, and concluded that the decision of the Tribunal, that the Commissioner's decision was correct, was an administrative one capable of review under the JR Act. Interestingly, his Honour made some comments in par[16] of his reasons about the issue generally. While his comments have no binding effect, his Honour was clearly of the view that decisions of the Tribunal should not be susceptible to review under the JR Act.

12 The issue arose again in State of Tasmania v Anti-Discrimination Tribunal and Others [2009] TASSC 48. In that case, a complaint had been made to the Anti-Discrimination Commissioner. The Commissioner accepted the complaint, investigated it, and then dismissed it. The complainant applied to the Tribunal for a review of the decision of the Commissioner to dismiss the complaint. In the course of its review, the Tribunal determined it had a discretion to receive material additional to that which had been before the Commissioner. What then came to this Court was an application pursuant to the JR Act, s18, to review the conduct of the Tribunal in making that procedural determination. Porter J considered the question of whether the decision the Tribunal made to take into account further material was a decision of an administrative character. It is useful to set out his Honour's reasoning and conclusion which appear at pars[10] - [16] of the decision. They are as follows:

"10 This question is not only relevant to whether judicial review is available, but also to the substantive issue. As will be seen, assuming judicial review is available, the character of the review function is important in assessing to what material the Tribunal is to have regard. As to the question in this context, the 'instability of the distinctions' to be drawn between administrative acts and those of a legislative or judicial nature was noted by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 123 [63]. In Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723; (1996) 76 FCR 582, Lehane J said at 591 that 'General tests will frequently provide no clear answers', and that there is always 'a need to examine closely the particular provisions and the particular circumstances'.

11 In Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309, Blow J held that the decision of the Anti-Discrimination Tribunal upon a review of a rejection by the Commissioner of a complaint, was one of an administrative character within the meaning of the JRA. The complaint alleged unlawful discrimination by a prospective employer. At 313 [12], his Honour expressed the view that there were very few factors that weighed in favour of the decision being regarded as one of a judicial character. At 314 [14] - [15], his Honour said:

'The proceedings before the Tribunal were not proceedings inter partes. They did not involve the review of a decision that directly affected the prospective employer. Under the Anti-Discrimination Act, s16(1) [sic 64(1)], the power to reject a complaint can be exercised by the Commissioner on grounds that have nothing to do with lack of merit, including the availability of similar remedies in a commission, court or tribunal in which proceedings have been commenced; satisfaction that the subject matter of a complaint may be adequately dealt with by such a body; the existence of a more appropriate remedy that is reasonably available; the complaint having already been dealt with by another authority; or an opinion that the complaint may be more effectively or conveniently dealt with by another authority.

A decision by the Commissioner to reject a complaint is no more than a decision not to conduct an investigation. It is an excellent example of a decision of an administrative character. In light of the factors that I have referred to, I see no reason to regard any differently a decision by the Tribunal that it is satisfied that the Commissioner made a correct decision in rejecting a complaint. ...'

12 Should this reasoning be applied to the review of a dismissal of a complaint, as distinct from a rejection? A weighty indicator of administrative, as distinct from judicial, action is that it 'will create new rights and obligations and not simply determine (as a court might do) controversies over past suggested contraventions ...', or will provide a basis for determining what rights and obligations are created in the future; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 per Kirby J at 561 [41] - [42]. This had been the approach taken in Blue Ribbon Meat Products Pty Ltd v Tasmanian Industrial Commission (No 2) [2004] TASSC 28, in which the distinction between orders of a judicial nature and those of an administrative character, had to be examined in the context of the Industrial Relations Act 1984. After reviewing a number of authorities, Blow J treated the essential distinctive factor as being whether the relevant power was one to create new rights and obligations, in which case a decision made pursuant to that power would be one of an administrative character

13 The exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation, or if that is inappropriate for any of the reasons set out in the ADA, s78(1), to be the subject of an inquiry by the Tribunal. A complaint may be rejected at the initial stage for any of the reasons set out in s64(1). Of the matters set out in s64(1)(a), three relate 'to the insufficiency or to the absence of merit of the factual basis', whilst 'misconceived' means 'founded upon a wrong idea as to the facts.'; Langley v Niland (1981) 2 NSWLR 104 at 107. (If a complaint is accepted, s67 requires the Commissioner to notify 'the respondent' of the reasons for accepting the complaint and provide a summary, or with the consent of the complainant, a copy of the complaint. I should note that a respondent to a complaint accepted for investigation has no right to a review of that decision.) On the other hand, it may be that on the face of a complaint the Commissioner is not able to make a proper decision to reject it, and it is accepted for investigation. That investigation may reveal that it is 'trivial, vexatious, misconceived or lacking in substance', or that for one of the other reasons specified in s64(1)(b), (c), (d) or (f), it should be dismissed. (If not dismissed, s71(1) requires that the complaint proceed to conciliation or to an inquiry, that choice to be determined by the Commissioner.)

14 It might be thought that once accepted and investigated, a 'dismissal' would have more to do with the merits than any other consideration, but the ADA makes specific provision for the dismissal of a complaint on grounds that have nothing to do with lack of merit. It follows that an investigation is still part of the screening process, and I see nothing which would make a dismissal by the Commissioner conceptually different from a rejection, so as to make the decision of the Tribunal on a review of a dismissal, one of a judicial character as distinct from one of an administrative character. The Commissioner's decision to dismiss a complaint is a decision that the matter, for one reason or another, is not to be conciliated or made the subject of an inquiry by the Tribunal.

15 Further, I think it is clear that a decision upon a review has the required effect in relation to rights or obligations. Section 60 creates the rights of certain persons and organisations to make a complaint under the ADA. Provision is made in s62 for a formal complaint. That complaint must be assessed by the Commissioner. The result of a review of the Commissioner's decision as to a complaint may be the lapsing of that complaint - s72(1), the investigation of the complaint - s72(2), or the referral of the complaint for inquiry - s72(3). By virtue of s73, a complainant whose complaint has lapsed, is not entitled to make another complaint in relation to the same matter. A complaint may ultimately be the subject of an inquiry by the Tribunal, in which case persons may be required, on pain of penalty for non-compliance, to provide information and give evidence; ss80(2) and 87(2). If the complaint is substantiated, the Tribunal may, by virtue of s89, make a wide range of remedial and punitive orders including compensation, re-employment and fines. I also note that s100 provides for appeals to this Court in respect of certain orders made after an inquiry, but not in respect of a review.

16 It follows that I am satisfied that the decision of the Tribunal on the review of the dismissal of a complaint by the Commissioner, is a decision of an administrative character within the meaning of the JRA."

13 His Honour has at par[15] demonstrated the distinction between proceedings before the Tribunal in the nature of an inquiry which gave rise to rights of appeal and those which did not. He noted that no appeal was permitted in relation to a review, and then drew his conclusion as to the nature of the particular decision under consideration in that case.

14 Another case to which reference was made was that of Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104. It concerned the Act and its scope. A complaint was made under the Act in respect of alleged discrimination by Centrelink and some of its staff. One of the issues raised by the Commonwealth was whether the Act could apply to the Commonwealth. The determination was that it did not. Kenny J, in the course of her reasons, explored the question of whether the Tribunal could be a "court of a State" for the purpose of exercising judicial power of the Commonwealth. She determined that it was not. However, in the course of her reasons, she also examined the question of whether the Tribunal, when conducting an inquiry, was exercising judicial power. She determined that it was. Counsel for the respondent submitted that her Honour's decision was a correct one.

15 Counsel for the Council submitted that her Honour's views should be disregarded. His reasons for that were:

•

her Honour was the only judge of the court who dealt with the point,

•

her Honour did not refer to any of the Tasmanian decisions referred to above,

•

her Honour's conclusion did not form the ratio decidendi of the court's decision,

•

her Honour's conclusion was contrary to the settled position in this State,

•

whether a statutory tribunal impermissibly exercises the judicial power of the Commonwealth is a distinctly different question to whether the Tribunal in this case exercised administrative or judicial power,

•

even if some of the functions of the Tribunal might be described as an exercise of judicial power, it did not automatically follow that the decision was not one of an administrative character. A body which is not a court but is bound to act judicially is not the same thing as a body which exercises judicial and not administrative power.

16 It is useful, notwithstanding the submissions of counsel for the Council, to set out her Honour's reasoning on the issue. It appears at pars[204] - [207] in the following terms:

"204 As appears above, the arguments of counsel were learned, thorough and well-designed. Having considered them carefully, it seems to me that this case admits of a relatively straightforward answer.

The Tribunal exercises judicial power

205 I accept as clear that, under the Anti-Discrimination Act, the Tribunal exercises judicial power. The nature of its functions and the procedures for enforcement of its orders establish that this is the nature of its power. The Tribunal has two principal functions. First, the Tribunal is given a function to review a decision of the Anti-Discrimination Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: see, eg, Anti-Discrimination Act, ss 13, 59, 64, 65, 68, 71 and 72. No aspect of this function is under consideration in the present case. Its second function, which is relevant here, is to conduct an inquiry into a complaint referred to it by the Anti-Discrimination Commissioner - ie, to determine whether a provision of the Anti-Discrimination Act (here, s 16) has been contravened: see Anti-Discrimination Act, ss 13, 78, 85, 86 and 87. The authorities recognise that this is in the nature of an exercise of judicial power: see, eg, Victorian Chamber of Manufactures v Commonwealth [1943] HCA 22; (1943) 67 CLR 413 at 422 per Starke J; R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 per Kitto J; and Brandy at 269 per Deane, Dawson, Gaudron and McHugh JJ. The Tribunal also has a broad power to make various court-like orders if it finds that a complaint is substantiated: cf Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 175 per Isaacs J, quoted in Brandy at 269. These include orders in the nature of injunctions, including mandatory injunctions (s 89(1)(a)-(c)), orders for the payment of compensation (s 89(1)(d)), fines (s 89(1)(e)), orders for the variation or avoidance of 'a contract or agreement' (s 89(1)(f)), discretionary refusal of relief (s 89(1)(g)), and any other order that the Tribunal thinks appropriate (s 89(1)(h)).

206 Furthermore, under the Anti-Discrimination Act, a person may enforce a Tribunal order under s 89 by filing a certified copy of the order in the Supreme Court of Tasmania, together with an affidavit stating the extent to which there has been non-compliance with the order: see s 90(1)(a) and (c). If these documents are filed, 'the order made by the Tribunal ... is enforceable as if it were an order of the Supreme Court': see s 90(2). In Brandy, the High Court held that the inclusion of a provision providing for the registration and enforcement of a HREOC determination as an order of the Federal Court turned an exercise of non-judicial power into an exercise of judicial power: cf Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 ('Breckler') at 110 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. As Deane, Dawson, Gaudron and McHugh JJ explained in Brandy (at 269-270):

'[I]f it were not for the provisions providing for the registration and enforcement of the Commission's determinations, it would be plain that the Commission does not exercise judicial power. That is because, under s 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is, we think, reversed by the registration provisions. Under s 25ZAA registration of a determination is compulsory and under s 25ZAB the automatic effect of registration is, subject to review, to make the determination binding upon the parties and enforceable as an order of the Federal Court. Nothing that the Federal Court does gives a determination the effect of an order. That is done by the legislation operating upon registration.'

See also Brandy at 260, 264 per Mason CJ, Brennan and Toohey JJ.

207 Whilst there are differences between the Anti-Discrimination Act's enforcement regime and the regime in Brandy, the two regimes are sufficiently similar to justify the conclusion that, in combination with the factors already mentioned, an exercise of judicial power is involved. The differences include the fact that there is no provision in the Anti-Discrimination Act equivalent to s 25Z of the Racial Discrimination Act 1975 (Cth) as it stood at the time of Brandy. Nor is it compulsory to file an order made by the Tribunal in the Supreme Court. Section 90(1)(c) indicates that the Parliament contemplated that an order would be filed only in the event of non-compliance. These differences do not, however, detract from the fact that the filing of an order pursuant to s 90 confirms that it is 'binding, authoritative and curially enforceable', to quote the joint judgment in Breckler at 110, referring in turn to Kitto J's observations in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374. (In 2UE (at 398 per Spigelman CJ, 404 per Hodgson JA and 405 per Ipp JA) the New South Wales Court of Appeal reached a similar conclusion when considering the effect of a legislative scheme that gave 'judicial force' to a state tribunal decision upon registration. I discuss 2UE again hereafter.)

An exercise of the judicial power of the Commonwealth would be involved".

17 While I accept that her Honour was the only judge of the court to deal with the issue, her Honour did not refer to the Tasmanian decisions to which I have referred, and her Honour's conclusion was not the ratio decidendi of the court's decision, I do not accept that her views are contrary to what counsel described as the "settled" position in this State. Her Honour was considering the position of the Tribunal when it conducted an inquiry. She was not considering the types of decisions which were the subject of cases canvassed above. I would have to say that I find her Honour's reasoning persuasive.

18 The decision of the Tribunal in this matter followed an inquiry. At that inquiry, evidence was taken, and findings of fact were made after a consideration of that evidence. The Council actively opposed any findings in favour of Mrs Taylor. Its counsel made submissions to that effect, both orally and in writing. The Tribunal ultimately made findings which favoured Mrs Taylor and then, as a consequence, ordered that the Council pay compensation to Mrs Taylor. The proceedings, while not strictly adversarial as between two parties, were, in every practical sense, just that. A dispute between two parties was resolved, as far as it could be, by the Tribunal. The compensation order made by the Tribunal was capable of enforcement. The order was also capable of being appealed pursuant to the Act, s100. Taking all these factors into consideration, and accepting that the Tribunal is not a court, I am satisfied nevertheless that the decision in this case made by the Tribunal after an inquiry was not a decision of an administrative character as required by the JR Act, but was one which involved the exercise of judicial power. In those circumstances, this Court has no jurisdiction to review the Tribunal's decision under the JR Act.

19 The application by the Council for judicial review is therefore dismissed.