APPEALED FROM: Kentish Council v Wood [2010] TASSC 43

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 - Finding of discrimination and order for payment of compensation.

Judgment Number: [2011] TASFC 3

H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

1 I agree with the reasons of a Blow J and would also dismiss the appeal

H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

2 During 2005 one of the respondents to this appeal, Sandra Taylor, made a complaint under the Anti-Discrimination Act 1998 ("the AD Act"), s60, alleging discrimination on the part of the appellant, the Kentish Council ("the council"). She was confined to a wheelchair. She alleged that discrimination by the council prevented her from having wheelchair access to various places in Sheffield. Pursuant to the AD Act, s78, the Anti-Discrimination Commissioner referred the complaint to the Anti-Discrimination Tribunal for an inquiry. The tribunal held an inquiry, found that the complaint was substantiated, and ordered the council to pay Mrs Taylor $10,000 by way of compensation. The council was aggrieved by the tribunal's decision. The AD Act, s100(1), permits a person to appeal to the Supreme Court against such a compensation order. The council did not appeal under that section, but instead made an application for the review of the tribunal's decision under the Judicial Review Act 2000 ("the JR Act"). On the hearing of that application, Tennent J held that the JR Act did not permit an application to be made for the review of such a decision: Kentish Council v Wood [2010] TASSC 43. This is an appeal by the council from her Honour's decision. The council contends that it was entitled to make an application under the JR Act.

3 The council has joined as respondents to this appeal the three individuals who constituted the tribunal for the inquiry into Mrs Taylor's complaint (collectively called "the first respondents"), and Mrs Taylor. Mrs Taylor was represented by counsel on the hearing of the appeal, but the other respondents, the decision-makers, took no part in the proceedings.

"(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

'decision to which this Act applies' means 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 The critical question in this appeal is therefore whether the tribunal made "a decision of an administrative character" within the meaning of s4(1). In order to answer that question, it is necessary to consider, amongst other things, the scheme put in place by the AD Act for dealing with complaints as to discrimination and prohibited conduct. The relevant provisions of that Act can be summarised as follows:

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Section 16 prohibits discrimination by one person against another on any of various grounds that are listed in the section. Those grounds include "disability": s16(k).

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Sections 17 - 21 prohibit other forms of conduct including, amongst others, sexual harassment, victimisation, and inciting hatred: ss17(2), 18(1), and 19 respectively.

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Section 60(1) permits complaints to be made to the Anti-Discrimination Commissioner about discrimination or prohibited conduct in certain circumstances. Under s60(1)(a), a complaint may be made by a person against whom alleged discrimination was directed.

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Under s64(1), the Commissioner may reject a complaint if it is trivial, vexatious, misconceived, or lacking in substance, or if it does not relate to discrimination or prohibited conduct, or, in certain situations, if other remedies are or have been available.

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Under s69(1), the Commissioner may investigate a complaint.

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Under s71(1), on the completion of an investigation, the Commissioner must either dismiss the complaint, refer it for conciliation, or refer it to the tribunal for an inquiry.

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When the tribunal holds an inquiry, it may, amongst other things, amend a complaint, permit a person to be represented or accompanied, require a person to attend a preliminary hearing, make an order as to security for costs, take evidence on oath or affirmation, require any person to appear before it to give evidence, and make an order for costs: ss84(1), 85(2), 86(2), 86A(1), 87(1), 87(2), 99A. It is required to observe the rules of natural justice: s87(4)(a). However the tribunal is required to conduct the inquiry with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before it permit, is not bound by the rules of evidence, and may inform itself on any matter as it thinks fit: ss86(1), 87(4).

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There is no express requirement that the tribunal is to decide whether a complaint is substantiated or unsubstantiated.

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Under s89(1), if the tribunal finds after an inquiry that a complaint is substantiated, it may make various types of orders including, amongst others, an injunction under s89(1)(a), an order for re-employment under s89(1)(c), a compensation order under s89(1)(d), an order for the payment of a fine under s89(1)(e), or an order under s89(1)(g) that it is inappropriate for any further action to be taken in the matter.

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If the tribunal finds after an inquiry that a complaint is unsubstantiated, it may dismiss the complaint: s99(1).

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The tribunal has no powers to compel the enforcement of its orders but, under s90, a certified copy of an order made by it may be filed in the Supreme Court and may then be enforced as if it were an order of the Supreme Court.

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Apart from its role in conducting inquiries, the tribunal has a second role - that of reviewing decisions of the Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: ss13(b), 59, 65(2), 68, 71(3), 72.

7 The JR Act was modelled on the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Many of the provisions in the two Acts are identical or substantially similar. By virtue of the definition of "decision to which this Act applies" in the ADJR Act, s3(1), that Act only applies to "a decision of an administrative character" in one of a number of listed categories. Plainly the words, "a decision of an administrative character", should be given the same meaning for the purposes of both Acts.

8 When the ADJR Act was new, Fox ACJ considered the scope of the jurisdiction that it conferred in Evans v Friemann [1981] FCA 85; (1981) 35 ALR 428. At 433 - 434, his Honour said the following:

"There has long existed, at least as far back as the days of Montesquieu and of Locke a concept of the division of the powers of government into the legislative, the judicial and the executive, or the administrative. The Constitution recognises this concept by its separate consideration of them, particularly in sections 1, 51, 61 and 71, and to a large extent adopts the distinction.

...

It has in fact proved very difficult, virtually impossible, to arrive at criteria which will distinguish in all cases the three concepts I have mentioned. They at times overlap: 'The borderland in which judicial and administrative functions overlap is a wide one, and the boundary is the more difficult to define in the case of a body such as the appellant board, the greater part of whose functions are beyond doubt in the administrative sphere' (per Lord Simonds, speaking for the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Limited [1949] AC 134, 148). Sometimes the category into which an act or function will be placed will be decided in part on historical considerations or on the source of power or the nature of the body to which it is given. In the judicial sphere, there are many incidental functions, essentially of an administrative nature, and even of a legislative nature which are regarded as being within the judicial power of the Commonwealth, because they are incidental to, or incidents of, the exercise of judicial power. Many administrative tribunals are, to a greater or less extent, required to act judicially. Parliament has a power to try and punish for contempt of the Parliament.

In the present Act characterisation of the activity remains necessary. There can be little doubt that the trichotomy to which I have referred is intended to be maintained (cf Glenister v Dillon [1976] VicRp 57; [1976] VR 550, and see de Smith, Judicial Review of Administrative Action, 4th ed 68) and that decisions properly to be regarded as of a legislative or judicial nature are excluded. This means that there can be no judicial review under the Act of subordinate legislation, or of judicial decisions, and that other procedures, such as the prerogative writs, will have to be resorted to for that purpose.

The Act refers to decisions of an administrative character. It is the character of the particular decision which is to be examined. Often this will present no difficulty. On the other hand, the words used do suggest an analytical approach, and this may present serious difficulties, and, on one view, a major restriction on the ambit of the Act. The trouble, already noted in the constitutional cases, is that the concept of the 'administrative' is not by itself clear and distinctive, and cannot in practice be treated as if it is. It is necessary to have a reasonably clear idea of the other concepts with which it is to be contrasted. There will be difficulties in this regard even if there is adherence to the three-fold basic division already mentioned."

9 The preservation of the traditional trichotomy, and the difficulties of categorisation that it creates, were referred to by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 in the following passage at par[63] (footnotes omitted):

"The second element of the definition to which attention is given by the case law is the expression 'of an administrative character'. The evident purpose here is the exclusion of decisions of a 'legislative' or 'judicial' character. The instability of the distinctions which the statute thus preserves may be appreciated by regard to two Federal Court decisions. In Queensland Medical Laboratory v Blewett, a ministerial decision which took effect by substituting a new table of fees for the table set out in a Schedule to the Health Insurance Act 1973 (Cth) was held to have a legislative rather than an administrative character. Thereafter, in Federal Airports Corporation v Aerolineas Argentinas, a determination by the Corporation in exercise of power conferred by the Federal Airports Corporation Act 1986 (Cth) to make determinations fixing aeronautical charges and specifying those by whom, and the times at which, the charges were due and payable was held to have an administrative rather than legislative character."

10 Medical Council of Tasmania v Medical Complaints Tribunal [2005] TASSC 24 is a good example of the overlapping of judicial and administrative powers. That case concerned a decision by a statutory tribunal, in the course of professional disciplinary proceedings, prohibiting the reporting or other disclosure of the proceedings. The tribunal proceedings had many of the characteristics of judicial proceedings. At par[14], Evans J concluded that the decision in question could properly be characterised as administrative for the purposes of the JR Act, but commented that it might also be judicial.

11 In order to determine whether a decision is one of an administrative character, it is necessary to examine closely the relevant legislative provisions and the relevant circumstances: Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723; (1997) 147 ALR 649 at 657 (Lehane J, with whom Beaumont and Whitlam JJ agreed).

12 The status of a decision as to the payment of damages under Commonwealth anti-discrimination legislation was considered by the High Court in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245. The Racial Discrimination Act 1975 (Cth) made certain types of conduct, amounting to racial discrimination, unlawful, and provided for the lodging of written complaints with the respondent Commission. The Commission was obliged to hold an inquiry. After holding an inquiry into a complaint, the Commission found the complaint substantiated and declared, amongst other things, that damages should be paid. By virtue of the Racial Discrimination Act, s25Z(2), the Commission's findings and determinations were not binding or conclusive between any of the parties to the determination. However there were other statutory provisions that required the Commission to lodge its determination in a registry of the Federal Court, required the registrar to register the determination, and provided that thereafter the determination was to have effect as if it were an order made by that court, subject to certain rights of review. The High Court held that the registration, enforcement and review provisions were not valid laws of the Commonwealth because they purported to vest judicial power in the Commission, contrary to ChIII of the Commonwealth Constitution.

13 It was not held that the legislative provisions as to the conducting of inquiries, the making of findings as to whether complaints were substantiated, and the making of determinations as to the payment of damages and other matters were constitutionally invalid. It follows that, at least for the purposes of Commonwealth constitutional law, such decisions do not involve the exercise of judicial power when they are not binding or conclusive.

14 The nature of the decisions made by the tribunal under the AD Act was discussed in the Full Court of the Federal Court in Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85. That case concerned a complaint made to the Anti-Discrimination Commissioner under the AD Act against Centrelink, which is part of the executive government of the Commonwealth. The Commissioner referred the complaint to the tribunal for an inquiry. The Commonwealth applied to the Federal Court for declarations that the AD Act did not apply to it, and that the tribunal had no jurisdiction, and for an injunction restraining the tribunal from conducting an inquiry. The original jurisdiction of the Federal Court was exercised by the Full Court. The majority held that the AD Act did not apply to the Commonwealth, and that the tribunal therefore had no jurisdiction. Only one member of the court, Kenny J, dealt with the question whether the tribunal exercised judicial power. After considering the provisions of the AD Act and the High Court's decision in Brandy, her Honour concluded, at par[207], that the tribunal did exercise judicial power, saying this:

"Whilst there are differences between the Anti-Discrimination Act's enforcement regime and the regime in Brandy 183 CLR 245, 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 [1995] HCA 10; 183 CLR 245. 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 197 CLR 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 [2006] NSWCA 349; 236 ALR 385 (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 ...)".

Her Honour went on to conclude that, if the tribunal were to exercise jurisdiction in respect of Centrelink, an exercise of the judicial power of the Commonwealth would be involved.

15 The learned primary judge relied on the judgment of Kenny J in that case as the basis for her conclusion that the tribunal had not made a decision of an administrative character. Her Honour referred to and distinguished three single-judge decisions concerning the rejection and dismissal of complaints without the holding of inquiries: 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. Those decisions all related to decisions that could very readily be characterised as administrative in character, such as decisions not to investigate a complaint, and a decision after an investigation not to refer a complaint for conciliation or an inquiry. They are of no real assistance in the present case.

16 The comments of Kenny J in Commonwealth v Anti-Discrimination Tribunal (Tasmania) (above) are relevant to the question now before the Court, but it is important to remember that her Honour was considering a question of Commonwealth constitutional law. It may be that a decision made in the exercise of judicial power could properly be categorised as a decision of an administrative character for the purposes of the JR Act. Also, it is important to bear in mind that the tribunal made two decisions, not one. It first decided that the complaint was substantiated, and then went on to order the payment of compensation. Those decisions must be regarded as two separate decisions for administrative law purposes because of the High Court's decision in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

17 That case concerned the Broadcasting Act 1942 (Cth), s88(2). Under that subsection, if the Australian Broadcasting Tribunal was satisfied that a licensee was no longer a fit and proper person to hold the licence in question, it was empowered to suspend or revoke that licence. The High Court held that the decision that a licensee was no longer a fit and proper person to hold the relevant licence was a substantive decision rather than a procedural determination, and therefore constituted a decision of an administrative character that was reviewable under the ADJR Act. Because of the similar structure of the AD Act, s89(1), the tribunal's finding that the complaint was substantiated must be treated as the first of two substantive decisions when deciding whether the JR Act applies. Counsel for the council made a submission to the effect that, if the order for the payment of compensation was to be regarded as a decision of a judicial character in the light of Brandy's case, it was still appropriate to regard the decision that the complaint was substantiated as a decision of an administrative character reviewable under the JR Act.

18 Although the cases relating to ChIII of the Australian Constitution provide useful insights into the question that this Court has to consider, the proper approach requires consideration of the tribunal's decisions with reference to the relevant legislative provisions and the relevant circumstances: Evans v Friemann (above); Federal Airports Corporation v Aerolineas Argentinas (above). In my view the following matters all weigh in favour of categorising both the decision that the complaint was substantiated and the decision to order the payment of compensation as decisions of a judicial character, not decisions of an administrative character:

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The AD Act, s16(k), prohibited discrimination on the ground of disability.

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Mrs Taylor, a person with a disability, lodged a complaint alleging that the council had discriminated against people with disabilities.

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In that complaint she said that she would like "to be compensated for loss of Human Rights to myself and my family".

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The tribunal, constituted by a magistrate and two legal practitioners, conducted an inquiry during which evidence was presented and submissions were made by the complainant and by counsel for the council. (One of the two practitioners also became a magistrate whilst the tribunal's decision was reserved.)

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The tribunal delivered a written decision in which it made findings of fact, applied the law to the facts, concluded that the AD Act had been contravened, and therefore found that the complaint was "proved and substantiated".

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The tribunal concluded that it was inappropriate to order the council to undertake any rectification work or to apologise, but that it was appropriate to award $10,000 to compensate Mrs Taylor for the injury to her feelings. It ordered the council to pay that amount within 30 days of its decision.

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Mrs Taylor was able to enforce that order as if it were an order of the Supreme Court under the AD Act, s90. That was her legal right.

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The order was subject to a right of appeal to the Supreme Court under the AD Act, s100. Such an appeal would be an appeal by way of "rehearing" in the technical sense, requiring the demonstration of error: AD Act, s100(4); Supreme Court Rules 2000, Pt27, Div4. A finding that a complaint has been substantiated could be impugned in such an appeal, but Parliament made no provision for a full merits review of the tribunal's decisions.

19 Counsel for the council drew attention to the following matters which, he submitted, weighed in favour of categorising the decisions, or at least the decision that the complaint was substantiated, as administrative:

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The tribunal is not a court.

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Although its chairperson was a magistrate, she was not sitting in her capacity as a magistrate.

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The parties do not initiate proceedings before the tribunal. It was the Commissioner who chose to refer the complaint for inquiry.

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An inquiry is not an inter partes hearing, but an inquisitorial procedure.

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The tribunal is not bound by the rules of evidence.

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The tribunal may inform itself in any manner that it thinks fit, provided it observes the rules of natural justice (ie procedural fairness).

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The tribunal's function is to determine whether or not a complaint is substantiated, not to determine issues between disputing litigants.

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A complaint may be made by a person who does not claim to have been discriminated against: s60.

20 The matters weighing in favour of treating the tribunal's decisions as administrative largely concern procedural aspects of the tribunal's jurisdiction. If one looks at what, in substance, the tribunal did in this case, there are excellent reasons for regarding its two decisions as judicial in nature. It conducted a hearing in relation to a complaint by an individual who alleged that the council had broken the law, and who sought compensation. It concluded that the council had broken the law, and made a binding and enforceable order for the payment of compensation to her for the consequences of that breach as suffered by her. Hearing and determining a case about an alleged breach of the law, and assessing and awarding compensation for consequences of that breach, are activities routinely undertaken by civil courts, and are essentially judicial in nature. It follows, in my view, that neither the finding that Mrs Taylor's complaint was substantiated nor the consequent compensation order should be regarded as a decision of an administrative character.

21 It is true that the JR Act was remedial legislation, designed to replace cumbersome and complicated procedures, and to provide simple and accessible remedies. When difficulties of interpretation arise, it is therefore often appropriate to give provisions in the JR Act a wide interpretation. Doing so would tend to promote the purpose or object of that Act: Acts Interpretation Act 1931, s8A. However this is a case that, in my view, has to be resolved by reference to the ordinary literal meaning of the words used in s4(1) - "a decision of an administrative character". See, for example, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 161 - 162; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at par[78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at par[47]. In my view there is no basis for giving the words in question an extended meaning that would result in decisions that are essentially judicial in nature being treated as administrative.

22 For these reasons, I consider that the learned primary judge was correct to conclude that the tribunal did not make a decision of an administrative character that was reviewable under the JR Act. I would therefore dismiss the appeal.

H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

23 I agree with the reasons for judgment of Blow J. The appeal should be dismissed.