Kowalski v Domestic Violence Crisis Service Inc.

Factual background 3 This matter has an unfortunate and protracted history in the Commission. The applicant's complaint to the Commission had its genesis in events occurring 11 years ago. Following some discord between the applicant and his wife, two offers from the DVCS attended at the applicant's home on 6 February 1990 and spoke to the applicant briefly, but principally to his wife. The applicant then telephoned the DVCS for assistance on 7 February 1990. The applicant alleges that the officers treated him less favourably on both occasions than they would have treated a person of the opposite sex in similar circumstances. On 22 February 1994, the applicant made a complaint to the Commission under the Sex Discrimination Act 1984 (Cth) ("the SD Act"), as then operative, against the DVCS. This complaint was referred by the Sex Discrimination Commissioner to the Commission for inquiry pursuant to s 57(1) of the SD Act. 4 When the matter came before the Commission, constituted by Commissioner Dodson, issue was taken by the DVCS as to the Commission's jurisdiction. Commissioner Dodson determined that the Commission had jurisdiction to hear the complaint, pursuant to s 9(7) of the SD Act prior to its amendment by the Law and Justice Legislation Amendment Act 1990 (Cth). This decision was affirmed by Finn J on 2 May 1997, and his Honour remitted the matter back to the Commission for further hearing: see ACT Domestic Violence Crisis Service Inc v Stan Lech Kowalski & Anor [1997] FCA 337. The matter was further heard by the Commission and on 20 January 1998 the Commission dismissed the complaint made by the applicant under s 81(1)(a) of the SD Act, essentially because the Commissioner took the view that "whilst [the applicant] was treated less favourably by the DVCS, he was not so treated because of his gender or marital status". 5 The applicant sought judicial review of the Commission's decision under the ADJR Act. On 16 June 1999, Finn J held that the Commission had "improperly exercised its power in that it failed to take into account a consideration which in the circumstances, it was obliged to consider". Accordingly his Honour allowed the application, set aside the decision of the Commission and remitted the matter back to the Commission for further consideration: see K v Domestic Violence Crisis Service Inc [1999] FCA 794.

6 By the time the matter was thus remitted to the Commission, Commissioner Dodson was no longer a member of the Commission. The matter was further considered by the Commission constituted by Commissioner Innes. Between November 1999 and March 2000 the Commissioner made various directions to bring the matter on for hearing. 7 On 4 April 2000, the applicant's legal aid representative wrote to the Commission concerning the application of the HRLA Act and challenging the Commission's jurisdiction to hear the matter that had been remitted by this Court. This challenge arose from the commencement of operation of the relevant provisions in the HRLA Act on 13 April 2000 (6 months after the HRLA Act received the royal assent, pursuant to s 2(3) of that Act). Essentially, that Act removed the Commission's hearing function and conferred it on this Court and the Federal Magistrates Court. On 26 July 2000, Commissioner Innes, in a preliminary decision, dismissed the applicant's application that the matter should be taken to be terminated pursuant to s 12(2) of the HRLA Act, and directed that a directions hearing be arranged to bring the matter on for rehearing. It is this decision that the applicant seeks to have reviewed.

Relevant legislation 8 The relevant sections of the Human Rights and Equal Opportunity Commission Act 1996 (Cth) ("the HREOCA") are: "46PH(1) The President may terminate a complaint on any of the following grounds: … (e) the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person; (f) in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the President is satisfied that the subject matter of the complaint has been adequately dealt with; (g) the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority; (h) the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court;

(i) the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (2) If the President decided to terminate a complaint, the President must notify the complainants in writing of that decision and of the reasons for that decision. … 46PO(1) If: (a) a complaint has been terminated by the President under s 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practice that were the subject of the terminated complaint." 9 The HRLA Act commenced on 13 April 2000. Sections 11-13 provided: "11(1) A complaint is treated in the way set out in subsection (2) if (a) before the starting day, the President made a decision in relation to the complaint under: (i) section 101 of the old DDA; or (ii) section 24AA of the old RDA; or (iii) section 52A of the old SDA; and (b) on or after the starting day, the Court makes an order under the Administrative Decisions (Judicial Review) Act 1977 to refer the matter to which the decision relates to the Commission for further consideration. (2) On the day the order is made, the President is taken to have terminated the complaint under s 46PH of the new HREOCA. Note:The President is required to give a notice of termination of the complaint under section 14 of this Act. 12 (1) A complaint is treated in the way set out in subsection (2) if, before the starting day: (a) the appropriate Commissioner referred the complaint to the Commission; and (b) a holding of an inquiry into the complaint had not started under the old DDA, old RDA or old SDA; and (c) the complaint had not been withdrawn under whichever of the following sections is applicable: (i) section 79 of the old DDA; (ii) section 25A of the old RDA; (iii) section 59 of the old SDA. (2) On the starting day, the President is taken to have terminated the complaint under s 46PH of the new HREOCA. Note: The President is required to give a notice of termination of the complaint under section 14 of this Act. s.13 (1) A complaint is treated in the way set out in subsection (2) if, before the starting day: (a) a holding of an inquiry into the complaint had started under the old DDA, old RDA or old SDA; and (b) the complaint had not been withdrawn under whichever of the following sections is applicable: (i) section 79 of the old DDA; (ii) section 25A of the old RDA; (iii) section 59 of the old SDA. (2) The amendments made by Schedule 1 to this Act do not apply in relation to the complaint." 10 Section 8 of the Acts Interpretation Act 1901 (Cth) ("the AI Act") provides: "Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or (d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." 11 The paragraphs of s 5 of the ADJR Act that the applicant relies on in his application are: "(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

… (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; … (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: … (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;"

Commissioner Innes' decision 12 In his reasons for decision dated 26 July 2000 Commissioner Innes reasoned: "…the complainant relies upon the operation of sections 12 and 13 of HRLAA to support the application that the complaint should be terminated and a notice of termination issued. This is no doubt the result of there being no specific transitional provision that relates to the situation where a complaint that was the subject of a public inquiry has been remitted to the Commission by the Federal Court either before or after 13 April 2000.… Section 11 [of the HRLAA] provides certainty as to the status of matters that were the subject of a decision by the President that are remitted to the Commission on or after 13 April 2000. There are, however, no equivalent transitional provisions in relation to the remittal by the Federal Court of matters before or after 13 April 2000 that have been the subject of public inquiry or the remittal by the Federal Court of matters before 13 April 2000 that have been the subject of a decision by the President. I am of the view that the absence of any reference in ss 12 and 13 to circumstances where there is remittal by the Federal Court under the ADJR Act results in it not being possible to read those provisions as addressing the situation of remitter. The absence of such specific transitional provision leads me to the conclusion that s 8 of the Acts Interpretation Act 1901 (Cth) is the relevant provision to be applied in these circumstances. …

The SDA, unamended by HRLAA, conferred on a complainant a right to the hearing and determination of a complaint referred to the Commission for that purpose and a right to a determination of discrimination conditional upon a finding by the Commission that the complaint was substantiated. Proceedings under the ADJR Act challenging a determination or related decision of the Commission are proceedings "in respect of" such a right and any remedy resulting from those proceedings may be "enforced…as if the repealing Act had not been passed". It follows that the effect of s 8 of the Acts Interpretation Act is that the Commission must hear [Mr Kowalski's] complaint as remitted to it by Justice Finn on 16 June 1999 in accordance with the SDA in its unamended form. I can find nothing in the transitional provisions of HRLAA that manifests a contrary intention to this outcome. I should state, however, that I am not unsympathetic to the sentiments expressed by the representative for the complainant that if the rehearing of the matter results in a determination in favour of the complainant then that determination is unenforceable and it can only be enforced by a hearing de novo in the Federal Court. This is the very situation that transfer of the Commission's hearing jurisdiction under HRLAA to the Federal Court is designed to remedy. I believe that it is an unsatisfactory outcome that the lack of appropriate transitional provisions will result in parties to matters remitted to the Commission by the Federal Court (other than those provided for in ss 6 and 11 of HRLAA) will find themselves involved in a jurisdiction where an unenforceable determination may be the outcome and the President is powerless to terminate the matter so as to permit the complainant to enter the parallel enforceable jurisdiction that now exists in the Federal Court." (emphasis added)

The parties' submissions 13 In his application for review, filed on his behalf by his then solicitor, the applicant relied on four legal assertions: · Firstly, the Commissioner erred in his finding that the absence in s 12 of the HRLA Act of references to a particular remittal by this Court prevented the Commission from terminating the matter before it; further, in reaching his decision the Commissioner failed to give adequate consideration to the objects and purposes of the HRLA Act contrary to s 15AA(1) of the AI Act; · Secondly, the Commissioner erred by his incorrect interpretation and/or application of s 8 of the AI Act;

· Thirdly, the Commissioner's decision involved an error of law because it was based upon an incorrect understanding of the application and effect of the orders made by Finn J remitting the applicant's complaint back to the Commission for rehearing. As to this ground, the application stated that Finn J's orders affected the status of the applicant's complaint to the Commission under ss 12(1) and 13(1) of the HRLA Act in relation to the "holding of an inquiry" and/or Finn J's orders affected the status of the referring body under s 12(1)(a) of the HRLA Act; and · Finally, the Commisson's refusal of the applicant's request for the President of the Commission to issue a terminating certificate under s 46PH of the HREOCA upon the grounds provided for by s 46PH(1) was: - so unreasonable in the circumstances that no reasonable body would have exercised the power in that way; and/or - a decision made without sufficient regard to the merits of the case; and/or - involved an error of law as to the entitlement of the President of the Commission to issue the certificate under that section. 14 The DVCS relied upon the submissions of the Commission filed pursuant to directions made by Finn J on 26 October 2000. The respondents submitted that s 11 of the HRLA Act specifies the procedure to be followed for matters that were the subject of a decision by the President and are remitted to the Commission on or after 13 April 2000. By contrast, the absence of any such transitional provision in relation to the remittal by this Court of matters before or after 13 April 2000 that have been the subject of public inquiry or the remittal by this Court of matters before 13 April 2000 that have been determined by the President indicates that the HRLA Act does not deal with remittal in these situations. The absence of any reference in ss 12 and 13 to circumstances where there is a remittal by this Court pursuant to the provisions of the ADJR Act suggests that it is not possible to read those provisions as addressing the situation of remitter. Accordingly, it was submitted that s 8 of the AI Act needed to be applied and was correctly applied by the Commissioner. 15 This interpretation, it was submitted, is confirmed by the enactment of the Human Rights Legislation (Transitional) Regulations 2000 ("the Regulations"), which commenced on 16 November 2000. The Regulations address the issue of what is to happen where a decision of the Commission is remitted back to the Commission by the Court under the ADJR Act and apply prospectively. Regulation 4 provides that such complaints are taken to be terminated by the President under s 46PH of the HREOCA, allowing an application to be brought to this Court. It was submitted that the Regulations, in providing for the deemed termination of complaints remitted under the ADJR Act, confirm that neither s 12 or any other section in the HRLA Act dealt with that situation. 16 The effect of the application of s 8 of the AI Act, according to the respondents, is that the Commission is obliged to hear the applicant's complaint as remitted to it by Finn J in accordance with the SD Act in it unamended form. The respondent's submissions were based on the fact that a public inquiry had been commenced and the remittal by Finn J did not alter that fact.

Had a public inquiry commenced? 17 There is no doubt that the proceedings before Commissioner Dodson constituted a public inquiry into the applicant's complaint. However, the applicant successfully sought judicial review of that decision. In upholding the applicant's application for review Finn J stated: "I would allow the application, set aside the decision of the second respondent, and remit the matter to the [Commission] for further consideration" (emphasis added) Had the matter, upon remission, gone back to Commissioner Dodson, then in my opinion, the application would be found to fail: the applicant's complaint would be caught by s 13. Although the decision of Commissioner Dodson was set aside by Finn J, his Honour's decision could not be said to have invalidated the entire inquiry and Commissioner Dodson could have simply continued it and delivered a new set of reasons according to law. 18 However, upon remission, the matter did not go back to Commissioner Dodson, due to his departure from the Commission, instead being allocated to Commissioner Innes. Commissioner Innes made a number of directions in order to bring the matter on for hearing on 9 November 1999 and 16 March 2000. The directions of 16 March 2000 included the following: "1. The Commission notes that the remission from the Federal Court is on a small point and intendsto only consider evidence relevant to the issue which has been been remitted.

2. The Complainant is to file with the Commission and serve on the Respondent the Statement of Facts and Contentions on or before Friday, 14 April 2000. 3. The Respondent is to file with the Commission and serve on the Complainant the Statement of Facts and Contentions in reply on or before Friday, 12 May 2000. … 2. The transcript of evidence in respect of that witness [which the parties intend to call] in the earlier proceedings shall constitute the evidence in chief of that witness." (emphasis added) 19 A number of things can be drawn from these directions. Firstly, although Commissioner Innes intended to limit his inquiry to the narrow issue, which Finn J found had not been lawfully dealt with by Commissioner Dodson, this was merely the expression of an intention that did not bind Commissioner Innes in any way and did not foreclose the possibility of his considering the applicant's complaint more broadly. Secondly, the direction that parties file respective Statements of Facts and Contentions, in my opinion, supports the view that the holding of an inquiry had not commenced: there can hardly be an inquiry before the issues to be inquired into are defined. The direction that the transcript of evidence in respect of witnesses that had previously given evidence would be used as their evidence in chief was, with respect, a sensible time and cost-saving procedure but carries no implication that, in giving it, Commissioner Innes had commenced the inquiry itself. It may be tested this way: nothing Commissioner Innes had done would have prevented the re-assignment of the complaint, for administrative reasons, to another Commissioner. However, if a particular Commissioner had commenced an inquiry and was ready and available to continue it, the part heard inquiry could not be assigned to another Commissioner. 20 In my opinion, Commissioner Innes was in the process of preparing for a new inquiry into the applicant's complaint, but he had not commenced that inquiry. Although there already had been an inquiry by Commissioner Dodson, his departure and Finn J's setting aside of the determination meant that that inquiry could never issue in a determination. As of 13 April 2000 the position was, therefore, that an inquiry needed to be commenced, notwithstanding that there had been an earlier inquiry which had come to nothing and that Commissioner Innes had given certain preliminary directions.

21 In my opinion, therefore, there was a matter in which an inquiry, in the sense of an inquiry which was capable of issuing in its statutorily intended result, a determination, was yet to begin. It is with such a situation that s 12(1)(a) of the HRLA Act is concerned. The fact that there was an earlier inquiry, aborted in the peculiar circumstances of this case, does not put the matter outside the purview of s 12(1)(a). Accordingly, as at the time that the HRLA Act came into force, the complaint should have been treated as terminated by the

President, allowing the parties to come to this Court to obtain an enforceable determination of the complaint. 22 This approach is, in my opinion, supported by the broader purpose of the legislation, which is to be taken into account pursuant to s 15AA of the AI Act. Section 15AA provides: "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object". 23 Such a purposive approach is required whether or not the words of a statute appear unambiguous, because examination of the purpose or object of an Act allows a court to determine if in fact the legislature's words have more than one meaning: see Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J. In Re Application of the News Corp Ltd (1987) 15 FCR 224, Bowen CJ had said of s 15AA of the Act: "In the end the task of the court is to ascertain and to enforce the actual commands of the legislature: Scott v Cawsey (1907) 5 CLR 132 at 155. This will be best achieved by studying the words and the context and the purpose or object underlying the Act". (emphasis added) 24 A purposive approach to statutory interpretation was examined by McHugh JA in Berringham v Corrective Services Commn of NSW (1988) 15 NSWLR 292 at 302: "it is not only when Parliament has used words inadvertent that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved."

McHugh JA then set out the pre-conditions for a court reading words into a statute: "First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." 25 The course of later judicial authority does not diminish the force and weight of this approach: see Leah v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 86 FCR 230 at 234-235, Transport Action Group Against Motorways Inc v Road and Traffic Authority & Anor (1999) 46 NSWLR 598 per Mason P at 627 and Pyramid Building Society (In Liq) v Terry (1997) 189 CLR 176 per McHugh J at 195-196. 26 The HRLA Act and specifically the transitional provisions were introduced as a result of the decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, which held that the enforcement provisions of the Racial Discrimination Act 1975 (Cth) were unconstitutional because the Commission, as an administrative body, could not make a final determination of parties rights. The ratio of that decision applied to the SD Act, Disability Discrimination Act 1992 (Cth) and the Privacy Act 1988 (Cth). 27 The first of the conditions set out by McHugh JA, the purpose of the HRLA Act, is ascertainable from the parliamentary second reading speech on the Human Rights Legislation Amendment Bill (No.1) 1999, which took place on 22 March 1999: "The first major reform introduced by this bill is the Government's response to the High Court's decision in Brandy v The Human Rights and Equal Opportunity Commission (1995) 127 ALR 1. … The bill therefore proposes to maintain the Commission's conciliation role, but to provide the parties with direct access to the Federal Court should conciliation prove unsuccessful. This will enable the parties to obtain a timely and enforceable determination of their respective rights." (emphasis added) The general purpose of the legislature included enabling the parties to complaints of discrimination to have their rights enforcably determined, something that the Commission was constitutionally unable to do. The exception to this policy, implicit in s 12 and made express by s 13 was, in my opinion, based on considerations of efficiency: if an inquiry into a complaint had already begun, then it would not be efficient to have wasted the time and resources of the Commission by not concluding it. Even an unenforceable determination may impact on the way in which the parties deal with each other. McHugh JA's second and third conditions are also satisfied. I have little doubt that those who framed the legislation failed to advert to the possibility that the Federal Court would remit a matter for further hearing by a Commissioner who became unavailable to conclude the inquiry. I feel quite certain that, had Parliament considered this prospect, it would have included words that would plainly have put such a case within the purview of s 12. 28 In that circumstance, the justification for keeping that complaint within the Commission's jurisdiction, rather than having it terminated so as to allow the parties to come to this Court, is not present. 29 Accordingly, for these reasons Commissioner Innes erred and an error of law has been established under s 5(1)(d) of the ADJR Act. This finding makes it unnecessary to consider the applicant's alternate grounds for review.

Discretionary factors 30 The applicant gave the Court an undertaking, the effect of which would minimise waste of the resources of the Commission and of the court (as well as those of the parties), to allow the transcript of evidence taken by Commissioner Dodson to be used in any new proceedings in this Court as the evidence-in-chief of the relevant witnesses.

Disposition 31 An inquiry not having commenced, pursuant to s 12(2) the applicant's complaint should be regarded as terminated by the President. The application will be allowed and the decision of Commissioner Innes set aside. The parties are bound to regard the complaint as terminated pursuant to s 12 of the HRLA Act with effect from 13 April 2000. I will direct that the President of the Commission issue a notice of termination pursuant to s 14 of the HRLA Act. Pursuant to s 46PO(2) the applicant is, upon his aforesaid undertaking, allowed 28 days from the date of these orders to make any application he may wish to make to this Court or the Federal Magistrates Court alleging unlawful discrimination by the first respondent.

32 As to the matter of costs, although the usual rule is that costs follow the event, in my opinion I should exercise the Court's discretion to depart from that rule. The Commission has not sought actively to defend its decision in these proceedings. It filed submissions pursuant to the orders of Finn J merely to assist the Court. Similarly, the DVCS has not sought to defend the Commission's decision, but simply sought to protect itself from the expense of a completely new hearing in this Court, if the applicant should be successful. Accordingly, in my opinion, each party should bear his/its own costs of these proceedings. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the 1st Respondent: Gary Robb & Associates

Solicitor for the 2nd Respondent J Wheeler, Solicitor, Human Rights and Equal Opportunity Commission

Date of Hearing: 15 February 2001