Administrative Law - Prerogative writs and orders - Prohibition - Grounds upon which granted - Excess or want of jurisdiction - Whether carrying out terms of will amounts to "provision of services".

Anti-Discrimination Act 1998 (Tas), ss 3and 22.

THE QUEEN v THE ANTI-DISCRIMINATION COMMISSIONER

1 This is the return of a general order pursuant to the Rules of the Supreme Court, Pt26. The prosecutors are seeking an order in lieu of a writ of prohibition that the Anti-Discrimination Commissioner ("Commissioner") be restrained from acting in excess of jurisdiction by:

(i) conducting or authorising the further investigation and determination of complaints file numbered 00175 and 00175/AB brought respectively by Lola Ivy Lazenby and Narie Jean Lazenby against the prosecutors pursuant to the Anti-Discrimination Act 1998 ("the Act"); and

(ii) referring or authorising the referral of those complaints to the Anti-Discrimination Tribunal, pursuant to the Act, s78

(a) there is no jurisdiction under the Act to conduct an investigation under s69 or make any determination under s71 as the subject matter of the complaints is not capable of constituting discrimination on the grounds of gender pursuant to s16(e).

(b) there is no jurisdiction under the Act as any discrimination or prohibited conduct took place prior to the commencement of the Act and the commencement of the Sex Discrimination Act 1994.

2 The background to the prosecutors' application is this. In 1950, their father, Albert Leslie McDermott ("the testator"), made a will in which he appointed the prosecutors executors and trustees and gave, devised and bequeathed the entirety of his estate to them:

"... UPON TRUST to permit my wife Ivy May McDermott to have the use and enjoyment thereof or to receive the rents and profits therefrom during her widowhood and upon her death or remarriage whichever first shall happen I DEVISE AND BEQUEATH all my said real and personal estate to all my sons as their own absolute property as tenants in common in equal shares SUBJECT ONLY to their paying to each of my daughters within two years of the death or remarriage of my said wife the sum of Two hundred pounds AND I CHARGE such payments on all my real estate."

The testator died on 6 August 1963, survived by his wife (who did not remarry), by the prosecutors and a third son and by three daughters, one of whom died in about 1982. The other sisters are Narie Jean Lazenby and Lola Ivy Lazenby ("the complainants"). The will was proved in this Court and probate thereof granted to the prosecutors on 11 December 1963, the gross value being sworn as being under £13,014. The testator's widow died on 13 September 1999, by which time the value of the estate was approximately $330,000 consisting of $30,000 in a bank deposit representing the proceeds of the sale, some 12 - 15 years ago, of land at Orford and of 42 acres at Cambridge worth $300,000. There is some evidence that this land was purchased by the testator in 1940 for £1,350 and that he, and subsequently his widow, had resided there in their respective lifetimes.

3 Considering their benefits under the will unfairly disproportionate to those received by their brothers, the complainants sought from the prosecutors distribution of the estate on the basis that they, the complainants, should each receive a one-sixth share. They contended that as the land had been bought for £1,350 and probate costs, etc were likely to be in the order of £150, the net value of the estate at the time the will was made would have been £1,200 and that the testator's decision to distribute £600 to the three daughters while the three sons received the rest of the property in specie indicated an intention that each child should receive an equal share in the estate. The prosecutors rejected this contention and indicated that they would distribute the estate in accordance with the express terms of the will. The complainants thereafter lodged complaints with the Commissioner alleging discrimination on the grounds of gender. Mrs Lola Lazenby's complaint addressed the question of what happened to make her believe she had been discriminated against as follows:

"My father came to our home, first to build a house then fence, we paid him a modest amount. We had many oppertunities to speak of his philosphies of life. It was obvious the considered female equal it all respects.

After my father died in 1964 I was told that 'the will' had left girls £200 each the boys to get the property.

I couldn't beleive that could be the case, when I asked my mother she told me that when father made the will in 1950 it was quite fair.

The property had been perchased for £1350.00. My father knew that probate & funeral expences would be approx £150 leaving £1200.00, of which £200 was a one-sixth share - Mother did say that dad gave the boy 2 years to pay as it was alot of money to raise.

In later years as the property increased in value - I think she realized the £200 mentioned could be misinterpred.

She said she would speak to the boy on the subject. I do not know if she did this or not.

My sister & I cared for our mother's need as she got older. We took to doctors (she was almost blind) to vist relation & freinds etc. My sister looked after her clothes - did her banking & paying bills. I took her to entertainment etc - & had her to stay with us on many occasions.

Often she would call us, (when she could still use phone) and ask us to bring her milk etc. We lived 40 - 50 klm away.

In making this statement I only want to express what I see as our fathers intention regarding his will.

Im sure that our mother trusted the boy to do what she thought to be the right thing.

As a foot-note I think that my brother George McDermott C/- Backhouse Lne Cambridge - beleives the estate should be divided six ways - " [sic]

Her sister Narie's answer to the same question expressed similar views. Their complaints were dated 21 and 20 December 1999 respectively.

4 On 12 December 1999, the complainants filed applications under the Testator's Family Maintenance Act 1912 seeking provision under that Act and an extension of time to bring proceedings thereunder. Those applications are not yet resolved.

5 On 13 January 2000, the Commissioner wrote to the prosecutors advising receipt of the complaints which were described as alleging "discrimination on the basis of gender in relation to the disposal of an interest in land". The Commissioner's letter stated that:

"The claim has been accepted for investigation as it discloses a possible breach of section 16(e) of the Anti-Discrimination Act 1998 using the direct discrimination provision in section 14, in the area of the provision of facilities, goods and services."

They were provided with copies of the complaints and asked for a written response within fourteen days.

6 On 31 January 2000, the prosecutors' solicitors wrote to the Commissioner submitting that the complaints ought to be dismissed on the basis that the prosecutors were merely carrying out the trusts of the will and that any discriminatory conduct was that of the testator 50 years earlier. There followed correspondence which it is unnecessary to detail. Suffice it to say that the prosecutors' solicitors sought particulars of what discrimination was alleged, the Commissioner declined to grant the prosecutors' representation through their solicitors, relying on the Act, s61, and expressed the intention of continuing with the investigation. On 10 May 2000, the prosecutors commenced these proceedings.

7 As the letter of 13 January 2000 shows, the Commissioner claims jurisdiction to investigate a possible breach of the Act, s16(e), using the direct discrimination provision in s14 in the area of provision of facilities, goods and services. The complaints were said to have been accepted on the basis that the Act, s108(2), states that the Act applies to discrimination within the meaning of the Sex Discrimination Act 1994 which took place after the commencement of that Act. The Sex Discrimination Act 1994 commenced on 27 September 1995 but was repealed by the Act, which, in turn, commenced on 10 December 1999. As the discriminatory conduct alleged by the complainants commenced after the death of the life tenant on 13 September 1999 and continued after the commencement of the Act, that Act applies to conduct amounting to discrimination since the death of the life tenant. Section 108 provides:

"108 (1) This Act does not apply to discrimination or prohibited conduct that took place and concluded before the commencement of this Act.

(2) This Act applies to discrimination and prohibited conduct within the meaning of the Sex Discrimination Act 1994 that took place after the commencement of that Act."

8 The following further provisions of the Act are relevant:

"22 (1) Subject to the exceptions and exemptions specified in Part 5, this Act applies to discrimination and prohibited conduct, other than inciting hatred, against a person engaged in, or undertaking any, activity in connection with any of the following:

(c) provision of facilities, goods and services;

(f) administration of any law of the State and any State program on any ground specified in section 16(e), (f), (g), (h), (i) or (j);

(g) awards, enterprise agreements and industrial agreements on any ground specified in section 16(e), (f), (g), (h), (i) or (j)."

"14 (1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating."

"16 A person must not discriminate against another person on the ground of any of the following attributes:

(a) relating to access to, and the use of, any place that members of the public are permitted to enter; or

(b) relating to banking, insurance, superannuation or the provision of grants, loans, credit or finance; or

(c) relating to entertainment, refreshment or recreation; or

(e) relating to any profession, trade or business; or

(f) provided by a State authority or a council; or

(g) relating to selling, buying, leasing, assigning or disposing of an interest in land;"

9 The prosecutors submit that on no proper reading of the legislation is their alleged conduct capable of amounting to discrimination to which the Act applies. For relevant purposes, the Act applies only to discrimination against a person engaged in, or undertaking any, activity in connection with the matters set out in s22(1)(a) - (g). Each of these paragraphs deals with a general area of activity such as "employment" or "accommodation", save for par(c) which limits the area of operation from the general area of facilities, goods and services to "the provision of facilities, goods and services". While the definition of services is wide and includes "services relating to selling, buying, leasing, assigning or disposing of an interest in land", it is not every activity which relates to assigning or disposing of an interest in land which is subject to the application of the Act, but only the provision of a service relating to the assigning or disposing of an interest in land. For there to be discrimination to which the Act applies, there must be discrimination not only in relation to a service but also in relation to the provision of a service. The carrying out of a duty imposed on the prosecutors as executors of the testator's will, still less the mere retention by them of the interests specifically devised to them by the will or a refusal by them to give their sisters an interest in some part of it which is not required by the will, cannot be said to be a matter relating to the provision of a service. Nor, in my view, can it be said that what has happened to the complainants (which arguably amounts to discrimination) occurred while they were engaged in or undertaking any activity in connection with the provision of services.

10 The terms of the will are clear and unambiguous. In the events which have happened between the execution of it by the testator and the time for distribution on the death of his widow, a period of nearly 50 years, it is understandable that the complainants feel that they have been treated unfairly and that had their father appreciated the end result, he would have provided otherwise. However, the Act is not designed to remedy such inequalities. As Brennan CJ said in I W v City of Perth (1996 - [1997] HCA 30; 1997) 191 CLR 1 at 15:

"No doubt most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory."

11 When a complaint is made, the Commissioner is required to determine whether to accept or reject it within 42 days after its receipt (s64(2)). If it is accepted, the Commissioner may investigate it in a manner appropriate to the circumstances (s69(1)). On completion of the investigation, the Commissioner is to determine that it be dismissed, is to proceed to conciliation or is to proceed to an enquiry before the Tribunal (s71(1)). The Commissioner has power to direct a respondent to a complaint to take part in a conciliation conference on pain of fine (s75). In the event that the Commissioner exercises his or her power to refer a complaint to the Tribunal, the complaint is to be referred within six months after the respondent is first notified (under s67) by the Commissioner of the acceptance of the complaint, or within such further time agreed with the complainant (s78). If the matter proceeds to an enquiry, the Tribunal has power to require any person to attend a directions hearing and to produce specified information and documents, again on pain of fine (s80). A person may be represented by another only with the permission of the Tribunal (s85(2)) and although the Tribunal has power to order otherwise (s95(2)), s95(1) provides that subject thereto, each party to an enquiry is to pay his or her own costs. The powers of the Tribunal, if it finds that a complaint is substantiated, are very wide (s89(1)) and include power to order payment by the respondent to the complainant of an amount determined by the Tribunal as compensation for any loss or injury suffered and caused by the respondent's discrimination (par(d)) and "any other order it thinks appropriate" (par(h)). If the Commissioner wrongly forms the view that the respondent's conduct amounts to discrimination to which the Act applies, there is potential for them to suffer a significant amount of stress, inconvenience, expense, delay and adverse orders before the position can ultimately be rectified by the appeal processes allowed for in the Act.

12 The Commissioner argues that the threshold for entertaining a complaint is low and that in the first instance questions of jurisdiction lie with the body purporting to exercise jurisdiction. This is particularly so, it is submitted, where the body purporting to exercise jurisdiction is an expert body, in relation to claims relating to discrimination in Tasmania, the relevant bodies being the Commissioner and the Tribunal. Certainly claims not misconceived or lacking in substance should not be dismissed out of hand (Assal v Department of Health, Housing & Community Services (1992) EOC 92-409 and Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors (1989) EOC 92-252) and where the jurisdiction of a court of limited jurisdiction is challenged, it has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction (R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185). However, as Gibbs CJ said in the last-mentioned case, at 194:

"... if a want or excess of jurisdiction is clearly shown, the fact that the party affected by the wrongful exercise of jurisdiction had another remedy, such as an appeal, available will in general be immaterial : Mooney v Commissioners of Taxation [1905] HCA 61; (1905) 3 CLR 221, at p 236; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1, at p 21; and see the cases cited in de Smith's Judicial Review of Administrative Action, 4th ed (1980), pp 425-426. One reason why this is so is that 'subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority': R v Australian Stevedoring Industry Board: Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, at pp 118-119. If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. On the other hand, if the want or excess of jurisdiction is not clearly established, prohibition will be refused: R v President of Commonwealth Court of Conciliation and arbitration; Ex parte Australian Agricultural Co Ltd [1916] HCA 56; (1916) 22 CLR 261."

13 In my opinion, the Commissioner, in accepting the complaint within 42 days of its receipt as provided by s64(2), has assumed jurisdiction in respect of a matter to which the Act clearly does not apply. However, the question arises whether or not I have jurisdiction to grant prohibition or an order in lieu thereof. Under the Supreme Court Civil Procedure Act 1932, s76(1), there is jurisdiction to grant prohibition directed to a judge of an inferior court, to any person, judge or court assuming to exercise a jurisdiction vested in the Supreme Court and, as provided in par(c)(i) thereof to:

"any person or tribunal charged by law with the duty, or invested by law with the power, to determine judicially and not merely ministerially any question or matter whatsoever, who or which has made or given, or is about to make or give, any determination which has affected or purports to or will affect any right or property of, or has imposed or purports to or will impose any liability on, any person, or which has determined or purports to or will determine the existence or non-existence of any right or liability or any condition of any right or liability;"

The Commissioner is not a judge of an inferior court and under the last-mentioned Act, is only amenable to the writ if acting within the meaning of par(c)(i) above. The Commissioner, in short, must be shown to be under a duty to act judicially and not merely ministerially and to have given, or to be about to give, a determination affecting the prosecutors' rights or property or imposing any liability upon them. Although the prosecutors stand in jeopardy of certain orders and directions by the Commissioner, such as those requiring attendance at a conciliation conference or pretrial conference and those requiring production of information, and are subject to some uncertainty as to whether they will be put in jeopardy of orders affecting their substantive rights if the issue is referred by the Commissioner to the Tribunal, there does not, at this stage, appear to be any determination made, or about to be made, by the Commissioner affecting much more than their convenience and peace of mind. Had the matter reached the stage of being referred to the Tribunal, different considerations would apply. However, the basis on which the order sought was not the subject of argument and in the circumstances I will give the parties the opportunity to advance submissions as to the appropriate remedy (if any) this Court can give.