Statutory Interpretation - Consequences of non-compliance - Application of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 - Whether statutory requirements directory or mandatory.

Constitutional Law - Judicial power - Federal jurisdiction - Civil and administrative tribunal - Whether federal jurisdiction genuinely raised - Defences to state-based racial discrimination claim - Colourability.

Administrative Law - Procedural fairness - Whether a right to be heard before referral of complaint - Application of Re Minister for Immigration and Border Protection; Ex parte Lam (2003) 214 CLR 1 - No practical injustice.

Acts Interpretation Act 1931, s 10A;

Anti-Discrimination Act 1998, ss 19, 67, 78, 81;

Constitution (Cth), s 51;

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

Justice Legislation (Miscellaneous Amendments) Act 2000;

Racial Discrimination Act 1975 (Cth), s 6A;

Resource Management and Planning Appeal Tribunal Act 1993, s 16;

Tasmanian Civil and Administrative Tribunal Act 2020, s 131.

Abblitt v Anti-Discrimination Commissioner (2016) 24 Tas R 187; [2016] TASSC 12;

Anti-Discrimination Commissioner v White (2023) 35 Tas R 209; [2023] TASSC 26;

Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43;

Bullard v Anti-Discrimination Tribunal (2020) 31 Tas R 382; [2020] TASSC 15;

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15;

Cawthorn v Parliament Square Property Pty Ltd (No 2) [2025] TASCAT 157;

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16;

Director of Housing v Lefevre [2021] TASSC 33;

Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48;

Forest Practices Authority v Anti-Discrimination Commissioner [2025] TASSC 19;

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1;

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28;

R v Resource Management and Planning Appeal Tribunal; Ex parte Wilson (2000) 9 Tas R 203; [2000] TASSC 101;

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34;

Tasmanian Health Service v Anti-Discrimination Tribunal (2022) 34 Tas R 298; [2022] TASSC 2.

Second to Fifth and Seven to Tenth Respondents: No appearance

Second to Fifth and Seven to Tenth Respondents: Nil

1. This complaint has been referred to the Tribunal for inquiry under the Anti-Discrimination Act 1998 (the ADA). The first respondent (the TAC) applies for it to be dismissed for want of jurisdiction. In the alternative, it says that the complaint should be transferred to the Magistrates Court because federal jurisdiction is raised.
2. I have concluded that the application should be dismissed.

1. The complainant's case may be summarised briefly as follows.

1. The complainant is a Tasmanian Aboriginal artist. He designed an Indigenous-themed jersey featuring dot art for the Tasmanian JackJumpers basketball team. It was commissioned and to be worn by the JackJumpers during an Indigenous round in the National Basketball League's 2023/2024 season. The jersey design was publicised widely.
2. The TAC is a Tasmanian Aboriginal community organisation. The other respondents are employees or associates of the TAC. Using Facebook, they criticised publicly the complainant and the JackJumpers' decision to commission the jersey's design. That criticism may be summarised broadly as:
   • dot art is not part of Tasmanian Aboriginal Culture;
   • the complainant engaged in plagiarism and cultural misappropriation; and
   • the complainant is not of Tasmanian Aboriginal heritage and not part of the Tasmanian Aboriginal community.
3. The respondents "made discriminatory and offensive comments regarding [the complainant's] racial identity", with one labelling him "Whyt Trash Reuben".
4. As a result of the controversy, the JackJumpers publicly disavowed the jersey and the complainant suffered online abuse, financial loss, and damage to his reputation.

1. The complainant alleges unlawful discrimination, prohibited conduct, incitement, and victimisation on the basis of race, in respect of which he made a complaint[1] to the Anti-Discrimination Commissioner (Commissioner). As I will explain, the Commissioner referred to the complaint to the Tribunal for inquiry. At inquiry, the Tribunal's task will be to determine whether the respondents breached the ADA and, if so, what remedies to order.
2. I subsequently granted leave to the complainant to withdraw his complaint against the sixth and eleventh respondents.
3. This decision does not consider whether the complainant has proven his case under the ADA. It does not consider the complainant's case in detail. Nor does it consider the respondents' cases, which they have not yet had an opportunity to outline. Instead, it addresses the TAC's interlocutory application challenging the Tribunal's jurisdiction to hear the complaint.
4. The complainant opposes the TAC's application. No other respondent has made any submissions.

1. The complainant has applied under the ADA, s 81(2) to join Tasmania Basketball Pty Ltd (JackJumpers) to the complaint. The parties agreed that I should determine the TAC's application before determining the application to join. That is what I have done.

1. The TAC submits that the Commissioner's referral of the complaint to the Tribunal was invalid and therefore the Tribunal does not have jurisdiction to hear and determine the complaint at an inquiry. The TAC alleges several failures by the Commissioner which, in combination, "deprive[d] the TAC of procedural fairness".
2. I commence by identifying the alleged failures. I then determine their consequences.

1. Section 67 requires the Commissioner to notify the respondent to a complaint which she has accepted. The provision states:

67. Notification of acceptance of complaints > > If the Commissioner accepts a complaint, the Commissioner, within 10 days of accepting it, is to - > > (a) notify the respondent of that acceptance; and > > (b) provide the respondent with reasons for accepting the complaint; and > > (c) give the respondent a copy of the complaint and a summary of the complaint.

2. From reviewing the referral report and other documents provided by the Commissioner, it is apparent that service on the respondents was somewhat irregular. Some respondents were purportedly served by Facebook Messenger, others by ordinary post, and one by email. I accept the TAC's contention that the Commissioner could not be sure that the letters and Facebook messages were received. However, I am told without demurrer that the Facebook messages were sent to the correct respondent in that the conduct the subject of the complaint was, in each case, sent from the same Facebook account.
3. In any event, the complainant concedes that notification was made 13 days after the Commissioner decided to accept the complaint, which is three days outside of the ten-day period prescribed by s 67.
4. I find that s 67 was not complied with.

78. Referral for inquiry > > (1) The Commissioner or an authorised person is to refer a complaint for inquiry if the Commissioner or authorised person - > > (a) believes the complaint cannot be resolved by conciliation; or > > (b) has attempted to resolve the complaint by conciliation but has not been successful; or > > (c) believes that the nature of the complaint is such that it should be referred for inquiry. > > (2) The Commissioner or an authorised person is to refer a complaint within 6 months after notification under section 67 or within any further period agreed with the complainant, regardless of whether the investigation of the complaint has been completed. > > (3) The Commissioner or an authorised person is to notify the respondent of any further period agreed under subsection (2).

2. The complainant concedes that the complaint was not referred to the Tribunal until six days and six months after it was accepted, which is six days outside the six-month period prescribed by sub-s (2).
3. Before returning to the complainant's concession, it is appropriate to mention two further matters. First, time runs from notification, not acceptance: s 72(2). Second, given my conclusion that the requirement to notify within the prescribed period is directory rather than mandatory, the belated notification must nonetheless be valid such that time would run from it. I proceed on the basis that notification was effective rather than a nullity. However, I have not received submissions on either issue. It is unnecessary to consider them further.
4. Consistent with the parties' agreement, I find that that s 78 was not complied with.
5. The TAC also submits that the Commissioner failed to satisfy herself of the sub-s (1) criteria and failed to hear from the parties as to referral under sub-s (2). I accept that to be the case but, for reasons which I will endeavour to explain, she was not required to do so.

What is the approach to determining the consequences?

1. The complainant submits that the failures do not deprive the Tribunal of jurisdiction to hear the complaint. He contends that the requirements in ss 67 and 78 are directory rather than mandatory. The test was set out by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] (emphasis added):

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

2. The complainant advances several reasons why, having regard to the ADA's text, subject matter and objects, and consequences, invalidity does not result.

Does s 10A of the Acts Interpretation Act 1931 apply?

1. The first reason relates to s 10A(1) of the Acts Interpretation Act 1931. This is misplaced. Section 10A(1) states that the phrase 'is to' must "be construed as directory" rather than mandatory. However, by sub-s (2), it:

[A]pplies only in respect of a provision of the Act if that provision is passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act 2000.

2. The Justice Legislation (Miscellaneous Amendments) Act 2000 commenced on 14 November 2000. Although subsequently amended in immaterial ways, ss 67 and 78 of the ADA was each passed on 18 December 1998. Section 10A(2) is directed, temporally, to when the provision is passed, so I doubt that amendment to different words in each provision re-enlivens s 10A(1). I conclude that s 10A(1) of the Acts Interpretation Act is inapplicable.
3. But that is not the end of the matter. There are other reasons why a failure to comply with the ADA, ss 67 and 78 does not result in invalidity. These commence with the ADA's context and purpose.

1. The ADA is "remedial and beneficial legislation... intended to remedy injustice and inequality and promote equality of opportunity": Abblitt v Anti-Discrimination Commissioner (2016) 24 Tas R 187; [2016] TASSC 12 at [5] (Pearce J). It should, therefore, be given a liberal and beneficial construction: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 (Brennan and McHugh JJ).

1. Although s 10A(1) of the Acts Interpretation Act is inapplicable, Parliament's use of the phrase 'is to' is nonetheless relevant. The text must not be interpreted in a vacuum. It must be interpreted having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ). In Director of Housing v Lefevre [2021] TASSC 33, Wood J said at [48]:

In construing legislation, the prima facie presumption is that permissive or facultative expressions operate according to their natural meaning: Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505. This may be displaced by the construction of the particular statute, whether it be the interpretation of particular provisions, or the purpose gleaned from the general scope and objects of the statute conferring power. It lies on those who assert that the word "may" has a compulsory meaning to show, as a matter of construction of the statute, that the word was intended to have such a meaning. By contrast, the words "is to" are directory and "must" is construed as mandatory.

2. Although Wood J was considering the word 'may' (in the context where the Acts Interpretation Act, s 10A(1) was inapplicable), her Honour's observations as to the interpretive approach and the meaning of 'is to' are instructive.
3. Interpreting s 67 as a mandatory or necessary precondition would leave the complainant without an avenue to address his complaint in circumstances where compliance is the Commissioner's responsibility, not the complainant's. This would be inconsistent with the ADA's remedial and beneficial purpose. In so finding, I do not overlook the serious, potentially penal, consequences for a respondent of a finding of unlawful discrimination.
4. I accept that s 67's purpose is to alert the respondents to the complaint. I repeat that the consequences for the respondent are relevant. While the respondents have rights and obligations at the initial stages before the Commissioner and are entitled to procedural fairness, it is only at the inquiry at which the complaint is determined. As to the first proposition, see Bullard v Anti-Discrimination Tribunal (2020) 31 Tas R 382; [2020] TASSC 15; Tasmanian Health Service v Anti-Discrimination Tribunal (2022) 34 Tas R 298; [2022] TASSC 2; and Forest Practices Authority v Anti-Discrimination Commissioner [2025] TASSC 19. The TAC's reliance on Bullard v Anti-Discrimination Tribunal is of limited assistance. Whether the tribunal in that case engaged in jurisdictional error is different to the question before me, which is whether the Commissioner's referral to this tribunal is valid.
5. The complainant contends that:

Consistent with the object of the provisions, the Tribunal can be satisfied that the method of notification of all [r]espondents was sufficient to bring the [c]omplaints to the attention of the individual [r]espondents.

6. I agree that the ADA does not require personal service and does not prescribe any particular method of notification. I also accept that, in the circumstances as I have described them, notification by Facebook Messenger was likely effective. However, it is unnecessary to reach a conclusion as to whether each respondent was notified. The relevant question is whether the Commissioner's referral to the Tribunal was effective, not whether the respondents were aware, or deemed to be aware, of the complaint before the Commissioner. To the extent that the contention is relevant to the asserted denial of procedural fairness, I address this later.
7. I accept the complainant's submission that a failure to comply with s 67 does not result in invalidity.

Interpreting the ADA, s 78 and the procedural fairness implications

1. Section 78's purpose is to provide a pathway for a complaint to be referred to the Tribunal for inquiry. It is facilitative. It is clear that sub-ss (1) and (2) are disjunctive pathways. Subsection (2) affords the Commissioner six months, or such "further period agreed with the complainant", to investigate a complaint. The provision enables a complainant's right to have their complaint determined by the Tribunal in an inquiry and avoids a complaint remaining under investigation by the Commissioner indefinitely or for an inordinately long time.
2. Sub-section (1) allows the Commissioner to refer a complaint within six months, or such longer period as agreed under sub-s (2), if satisfied of par (a), (b), or (c). I accept the complainant's submission that the Commissioner:

correctly listed the reason for referral as the investigation not being completed within 6 months... [she] was not required to list one of the reasons provided in subsections 78(1)(a)-(c) as they are separate and distinct reasons for referral under the Act.

3. It is clear from the text of subsection (2) that the complainant's permission is required for an extension. It is equally clear that the respondent's permission is not required. I accept the complainant's submission that a respondent does not have a right to be heard as to extending time beyond six months. So much is apparent from the requirement in sub-s (2) to notify the respondent (contrast the complainant's "agree[ment]"). It follows that the respondents were not denied procedural fairness by not being heard before the referral under s 78(2). It also follows that the respondents were not denied procedural fairness by not receiving notification under s 67. While the failure was unfortunate, it did not result in a denial of procedural fairness. That is because the Commissioner was obliged to refer the complaint under s 78(2) by reason of effluxion of time. As I have foreshadowed, it is unnecessary to determine whether the respondents were nonetheless belatedly aware. Even if they were not aware under s 67, they were not denied procedural fairness when the complaint was referred. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38]:

Fairness is not an abstract context. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

4. The Commissioner was obliged to refer the complaint after six months irrespective of the respondents' views.[2] No practical injustice resulted.
5. The TAC also submits that the Commissioner's late referral after six months in circumstances where the complainant did not provide permission (as required by s 78(2)) invalidates the referral. I reject that submission. I adopt without repeating my observations regarding the Act's beneficial purpose and the objects of s 67.
6. An analogy between the ADA, s 78 may be drawn with s 16(1)(f) of the now-repealed Resource Management and Planning Appeal Tribunal Act 1993. That provision required the Resource Management and Planning Appeal Tribunal to hear and determine an appeal within 90 days or within such further period as may be granted. In R v Resource Management and Planning Appeal Tribunal; Ex parte Wilson (2000) 9 Tas R 203; [2000] TASSC 101, Underwood J held that a failure to comply with that provision did not deprive that tribunal of jurisdiction. His Honour's reasons are apposite to a failure to comply with s 78(2) of the ADA.
7. I conclude that s 78 is directory, not mandatory, and a failure to refer within the prescribed period does not deprive the Tribunal of jurisdiction. To hold otherwise would produce an absurd result inconsistent with the ADA's objects and purpose.

1. The Commissioner failed to comply with ss 67 and 78. However, those failures (individually or in combination) did not deny the respondents procedural fairness. For completeness, I repeat that the respondents did not have a right to be heard before the Commissioner in these circumstances.
2. The complaint was validly referred to the Tribunal for inquiry. The TAC's primary argument fails.

Should the matter be transferred to the Magistrates Court?

1. In the alternative, the TAC applies for the complaint to be transferred to the Magistrates Court under s 131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act). I considered that provision recently in Cawthorn v Parliament Square Property Pty Ltd (No 2) [2025] TASCAT 157 at [9]- [17] and adopt that summary without repeating it here.

1. The TAC says that determining the complaint would involve exercising federal jurisdiction because:
   • the TAC, as an Indigenous corporation, is regulated by and exists because of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act);
   • the Racial Discrimination Act 1975 (Cth) addresses racial discrimination and, relying on s 51(xxvi) of the Commonwealth Constitution, covers the field with respect to "race discrimination relating to aboriginals"[3]; and
   • the implied freedom of freedom of political communication under the Constitution is raised.

1. It is uncontroversial that the Tribunal cannot exercise federal jurisdiction: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [49]-[50] and [55]; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta) at [25]-[28] and [46].
2. Section 131(2) of the TASCAT Act relevantly states:

(2) If... the Tribunal considers that - > > (a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and > > (b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application - > > the Tribunal may order that proceedings on the application be transferred to the Magistrates Court.

3. The complainant opposes transfer. He submits that federal jurisdiction is not raised.
4. The threshold for whether federal jurisdiction is raised was set out authoritatively by the High Court in Citta at [35]-[36] (citations omitted):

[35]... [I]t is enough that the claim or defence be genuine in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument. > > [36] That is what should be taken to have been meant by repeated acknowledgments that the assertion of a claim or defence will not give rise to a matter within the description of s 76(i) or s 76(ii) of the Constitution if the claim or defence is "unarguable" or if the claim or defence is "colourable" in that it is made for the purpose of fabricating" jurisdiction.

5. It is clear that I must not examine the prospects of success of the TAC's invocation of federal jurisdiction. Rather, I must determine whether it is "legally coherent": Citta at [37]. A federal defence or claim which is "foredoomed to fail", or "so clearly untenable that it cannot possibly succeed" will not meet that threshold: Citta at [40].

1. With some hesitation, I find that the TAC's invocation of federal jurisdiction is colourable and therefore does not meet the threshold.

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

1. I reject the TAC's submission regarding the CATSI Act. The TAC submits that it is regulated by and exists because of the CATSI Act. However, it does not follow that determining the complaint in an inquiry under the ADA would involve interpreting the CATSI Act. The application of the CATSI Act is no more relevant to this inquiry than the Corporations Act 2000 (Cth) is to an inquiry involving a corporation about whom a complaint has been made under the ADA. That the corporation is incorporated under a federal Act does not mean that determining whether the corporation breached the ADA involves determining a federal issue.

Racial Discrimination Act 1975 (Cth)

1. I reject the TAC's submission regarding the RDA. As the complainant correctly points out, the RDA does not "cover the field in respect to race discrimination relating to aboriginals". So much is apparent from s 6A(1) of the RDA, which provides:

This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.

2. The ADA is an Act that furthers the objects of the Convention referred to in the RDA. So much is apparent from the ADA's text, context, and purpose. It is capable of operating concurrently with the RDA in that the two Acts are not directly inconsistent. The TAC has not raised an issue relating to the RDA's interpretation or application.

1. I reject the submission that the implied freedom of political communication is raised. This issue has caused me some hesitation. The implied freedom arises, by implication, from the Commonwealth Constitution: the Constitution's prescription of a national system of representative and responsible government implies, as a corollary, free communication about governmental and political matters. See generally Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [162]. Interpreting the Constitution involves exercising federal jurisdiction. I accept that, if the implied freedom is genuinely raised, the Tribunal would be without jurisdiction and that the complaint should be transferred to the Magistrates Court.
2. The complainant's case is that the respondents "made discriminatory and offensive comments regarding [his] racial identity". For the purpose this application, I accept that determining or defining who is or is not Aboriginal, or Tasmanian Aboriginal, may enliven the implied freedom of political communication. But that is not what the complaint is about. As the complainant submits, his complaint concerns how the respondents "define aboriginality, and the vilification and harassment of those which they do not accept" [sic].
3. In reaching that conclusion, I am fortified by Brett J's discussion in Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48. At [49], Brett J considered s 19 (incitement, etc) of the ADA to be compatible with the implied freedom of political communication. I do not overlook that Brett J was considering whether s 19 infringed the implied freedom, whereas I am limited to considering whether the TAC's reliance on the implied freedom is "genuinely raised" (to use the language of Citta). The thresholds are quite distinct. Nor do I overlook that this complaint extends beyond s 19 to other provisions.

1. I am not satisfied that federal jurisdiction has been genuinely raised. Put differently, the assertion of federal jurisdiction is colourable. It follows that s 131(2) is not engaged.
2. Having said that, an ADA inquiry does not involve pleadings: Anti-Discrimination Commissioner v White (2023) 35 Tas R 209; [2023] TASSC 26 at [8]. It may be that, as the proceedings progress (such as through the filing of statements of facts, issues, and contentions) it becomes apparent that federal jurisdiction is genuinely raised. I may then transfer the proceedings under the TASCAT Act, s 131 either on my own motion or on application by a party.

1. The TAC's application fails and must be dismissed. The complaint will proceed to inquiry. Before doing that, I will need to determine the complainant's application to join Tasmania Basketball Pty Ltd (JackJumpers) to the complaint. I will also hear from the parties as to service on the second to fifth and seventh to tenth respondents, none of whom have so far participated in the proceedings.
2. I order:

1. Dismiss the first respondent's interlocutory application.

1. List the complaint and the complainant's interlocutory application for directions on date to be fixed.

[1] The parties' submissions referred to several complaints, but the Commissioner referred a single complaint against all respondents. In any event, nothing turns on the distinction for the purpose of determining this application.

[2] I do not overlook a respondent's right to make submissions about whether a complaint is dismissed under the ADA as an anterior step. But I remain of the view that a respondent does not have a right to be heard as to referral under s 78(2).

[3] This is the wording used by the TAC.