Ramsay Health Care Australia Limited v President, Australian Human Rights Commission

1. On 18 November 2021, the complainant lodged his Complaint against nine respondents with the AHRC. The Complaint was made under the Racial Discrimination Act 1975 (Cth) (RDA), the SDA, the DDA and the Age Discrimination Act 2004 (Cth) (ADA). All of the issues raised in the Complaint related to conduct alleged to have occurred in connection with the complainant's employment with Ramsay Health Care Australia Limited between 31 July 2006 and 4 June 2021.
2. Three of the nine respondents to the original Complaint - Ramsay, Ms Gaye Billingsley, and Ms Shwe Yamon Tun (originally identified as "Ms Esther") - are the applicants in these proceedings and respondents in the Circuit Court proceedings brought by the complainant.

The initial assessment of the Complaint under s 46PF(1) of the AHRC Act

1. On 23 November 2021, the delegate undertook an initial assessment of the Complaint. The delegate noted that the Ramsay Health Care had been copied into the lodgement email and that they "[m]ay wish to make early contact to explain likely delay in allocation, accepted scope, invite optional written response, and/or propose direct discussions." The delegate also expressed the view that s 46PF(1)(b) was "not considered appropriate". The delegate further noted that: Most of the allegations occurred in early part of his employment (2006-2014), however, C claims a continuum of conduct up to June 2021, so at this stage, ss46PF(1)(b) and 46PH(1)(b) do not appear appropriate.
2. As I shortly explain, s 46PF(1) requires the President to consider whether to inquire into a complaint having regard to the matters in s 46PH(1)(b) where the complaint is brought over 24 months after the alleged conduct where the complaint is under the SDA, and otherwise over 6 months after the alleged conduct.
3. On 1 December 2021, a delegate of the President of the AHRC prepared a "Complaint Assessment", setting out the delegate's initial assessment of the Complaint. It relevantly provided in a section titled "Delegate's Assessment": Recommended Action: Early Set Down Conciliation [s46PF(1)(b) not considered appropriate] First respondent was copied into lodgement email. May wish to make early contact to explain likely delay in allocation, accepted scope, invite optional written response, and/or propose direct discussions. Most of the allegations occurred in early part of his employment (2006-2014), however, C claims a continuum of conduct up to June 2021, so at this stage, ss46PF(1)(b) and 46H(1)(b) do not appear appropriate. … In the body of the Ct, C also refers to 'racial hatred' but the provided information does not support a reasonably arguable claim of RH under the RDA.
4. On 17 December 2021, Ramsay's solicitors, FCB Group, wrote to the President requesting the termination of the Complaint under s 46PH(1)(b) of the AHRC Act: We respectfully request that the President exercise a discretion to terminate the Complaint pursuant to s. 46PH of the Australian Human Rights Commission Act 1986 (AHRC Act), for the reasons that follow. Those reasons, in summary are as follows: (a) the Complaint is late; (b) each allegation included in the Complaint, with one exception, has been made well after the time contemplated by s. 46PH of the AHRC Act for the making of a complaint; …
5. Also on 17 December 2021, the AHRC informed the parties that the Complaint would not progress until mid-late April 2022. On 27 April 2022, the complainant's solicitors wrote to the AHRC confirming that he wished to proceed with his complaint and providing certain "[f]urther relevant facts".
6. On 5 May 2022, Ramsay's solicitors wrote a response to the President reiterating their objection to the Complaint pursuant to s 46PH: We maintain an objection to the Complaint on the basis the Complaint is late, for the reasons set out in our letter of 17 December 2022. In relation to the Complainant's additional materials, the same objection is made on the basis that the majority of the new and further complaints described by the Complainant occurred well outside the time contemplated by s. 46PH of the Australian Human Rights Commission Act 1986 (AHRC Act), for the making of a complaint.
7. On 9 May 2022, the complainant's solicitors wrote to the AHRC, copying Ramsay's solicitors, regarding the letter of 5 May 2022. The email objected to the dismissal of the Complaint on the basis of delay: We understand the Respondent's objection in relation to some elements of the complaint being late, but we object to the dismissal of the complaint on that basis. The allegations that are made relate to a series of conduct that span the employment period and are in relation to his sex, sexual orientation and conduct of a sexual nature. The last of that conduct was in February 2021 (Erroneously, submitted to be in March 2021) and in those circumstances, the nature of the conduct has been complained of within 12-months, or in the alternative; within 24-months (noting the September 2021 amendment to the Act) and further, the distinct conduct which predates any limitation period is of a sufficiently serious nature and further, other matters such as the fact that the Applicant had raised these issues that would, in our view; enable the delegate to accept those elements of the complaint.
8. On 18 May 2022, the AHRC wrote to the complainant's solicitors (but not to Ramsay's solicitors) to advise that a delegate of the President "may consider terminating" the ADA complaint under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act, given that the complaints related to alleged acts between 2010-2011 and various factors, and invited the applicant to provide further information about that complaint should he so wish. Those factors were the "very significant delay" by the complainant in bringing these complaints, the absence of any explanation by the complainant for the delay, and the impact of the delay on the fairness of the process. By contrast, the AHRC stated that it anticipated being able to progress the complaints of racial, sexual and disability discrimination in June 2022.
9. The complainant withdrew his age discrimination complaints on 2 June 2022.

The inquiry and conciliation process in relation to the Complaint

1. On 14 June 2022, the AHRC sent an email to the complainant's solicitors requesting that the complainant provide a settlement proposal with respect to specific outcomes he sought from each respective respondent so that it could be provided to them for their consideration on participating in a conciliation process. The AHRC also stated that it would advise of possible next steps after notifying all of the respondents. It can, therefore, be inferred from this email and the letter dated 18 May 2022 that at some point in time between these two dates, the AHRC completed its initial assessment of the Complaint under s 46PF(1) and decided to proceed with an inquiry in relation to the outstanding DDA, RDA and SDA claims, save for certain claims against individuals of racial and sexual discrimination.
2. Between July and August 2022, and following exchanges between the AHRC and parties about the identity and whereabouts of some of the respondents to the Complaint, the complainant advised he wished to withdraw his complaints against Ms Ashling O'Donnell, who had left Australia in 2016, and Dr Wong, whose identity was never confirmed. In response, the AHRC stated that, while the formal withdrawal of these complaints will occur when the Complaint is finalised, "for practical purposes the matter is to be treated as having been withdrawn against these individuals".
3. On 18 August 2022, the AHRC held a conciliation attended by the complainant, his solicitors, and Ramsay's solicitors, among others. The Complaint was unable to be resolved at the conciliation. On the same day, the AHRC noted by email to the complainant's solicitors that: The complaint was unable to be resolved, and, at the conclusion of the conciliation, [the complainant's legal representative] indicated that Mr Anastasiou was likely to submit, in the next 14 days, that he wishes to withdraw his complaint against Dr Palmer, but proceed with Ms Ashling O'Donnell (identified in the complaint as 'Ms Ashley") and Dr Wong as individual respondents to the complaint, contrary to his prior request to withdraw them.
4. Following the conciliation, the AHRC wrote to the complainant's solicitors advising that, given information indicating that Ms O'Donnell and Dr Wong had ceased employment in 2016 and 2017-2018 respectively, the delegate would "consider terminating" the complaints in relation to them on the basis that the complaints were "out of time". On 1 September 2022, the complainant's solicitors advised that he wished to withdraw his complaint against Ms O'Donnell and Dr Palmer, but that he wished to proceed against Dr Wong.
5. On 21 September 2022, the AHRC notified the lawyers for Ramsay by email that the delegate had removed Ms O'Donnell and Dr Palmer as respondents to the complaints. In the same email, the AHRC also advised that the delegate had indicated that she was otherwise "minded to terminate Mr Anastasiou's complaints against the remaining respondents on the basis that she may be satisfied there is no reasonable prospect of the complaints being settled by conciliation" and would likely make that decision by the end of the following week. No submissions, however, were made by or on behalf of Ramsay opposing the delegate's proposed decision to terminate on this ground.
6. On 13 October 2022, however, the AHRC wrote again to Ramsay's solicitors explaining that, before the delegate made her decision, she sought confirmation of whether Ramsay Health Care remained of the view that it could not identify a Dr Wong, given the description of him provided by the complainant's representatives on 20 July 2022 (which had been copied to them). Ramsay's solicitors responded by email on 14 October 2022 confirming on behalf of Ramsay that there is no person matching the description provided by the applicant. In its response, however, Ramsay's solicitors did not submit that the complaint against Dr Wong should be dismissed because no such person could be identified.
7. On 24 October 2022, the delegate wrote to Ramsay's legal representatives attaching the delegate's decision to terminate the complaints under s 46PH(1B)(b) of the AHRC Act. The reasons for termination concluded: Under section 46PH(1B)(b) of the AHRCA, the President must terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation. I note that the Commission held a conciliation conference on 18 August 2922 between Mr Anastasiou and the identified Respondents (First - Fourth Respondents). I understand that the complaints could not be resolved at that time or since, because the parties could not agree on how to resolve the complaints. As noted above, the Fifth Respondent [Dr Wong] has not been able to be properly identified, resulting in the Commission being unable to contact him to facilitate a conciliation process between him and Mr Anastasiou. In the circumstances, I am satisfied that there is no reasonable prospect of the matter being settled by conciliation. Therefore, I have terminated Mr Anastasiou's SDA, RDA and DDA Complaints under section 46PH(1B)(b) of the AHRCA.

THE LEGISLATIVE FRAMEWORK

1. The relevant version of the AHRC Act for present purposes is the Act as in force at 18 November 2021, being the date of the Complaint to the AHRC.
2. Part IIB of the AHRC Act establishes a regime for redress for "unlawful discrimination" under various Commonwealth anti-discrimination laws including specified provisions of the SDA, DDA. RDA and ADA (collectively, the Unlawful Discrimination Laws). In broad terms, that regime is directed towards requiring the parties to a complaint to attempt to reach a conciliated outcome as a mandatory step before proceedings can be commenced in the Federal Court or Circuit Court if those processes are unsuccessful or the President otherwise terminates the complaint. Those conciliation processes are, in turn, carried out by the President armed with statutory powers such as the power to require the provision of information under s 46PI and subject to the protections afforded by the Act. These protections include the inadmissibility in evidence in certain proceedings of things said in the course of a conciliation: see s 46PKA AHRC Act.
3. Part IIB prescribes a number of steps in the lifecycle of a complaint. By way of a broad overview, these processes may be summarised as follows.
4. The process commences with the lodging of a written complaint under s 46P with the AHRC alleging unlawful discrimination.
5. A complaint lodged under s 46P must be referred to the President of the AHRC by virtue of s 46PD.
6. Under s 46PF(1), the President must consider whether to inquire into the complaint and, if so, inquire into the complaint and attempt to conciliate it.
7. If the President decides to inquire into a complaint, s 46PF(7)(a) and (b) respectively provide that the President must notify the complaint and any amendments to the respondent (save for an exception not presently relevant).
8. While s 46PF(6) provides that the President must act fairly to all parties in dealing with the complaint and s 46PF(10) provides that the President must act expeditiously having regard to the nature of the complaint and needs of the complainant and respondents, s 46PF(11) provides that these provisions do not impose enforceable duties on the President. However, subs (11) does not affect a legal enforceable duty to observe natural justice (s 46PF(12)).
9. The President has a discretion to terminate on the grounds specified in s 46PH(1) and an obligation to terminate a complaint on the grounds enumerated in s 46PH(1B) and (1C). Termination on discretionary and mandatory grounds may occur at any time even if an inquiry into the complaint has commenced (s 46PH(1A) and (1D)).
10. Where the President terminates a complaint, the President is required to notify the complainant in writing of the termination and of the reasons for the termination (s 46PH(2)), and must provide an "affected person" (being a person on whose behalf the complaint was lodged (s 3(1)) who is not the complainant with a copy of the notice given under subs (2) if that person requests it (s 46PH(3)). A respondent has no entitlement to reasons.
11. An application may be made to the Federal Court or the Circuit Court to hear and determine applications alleging unlawful discrimination by respondents to a terminated complaint, subject to the grant of leave in the case of termination on certain grounds including relevantly s 46PH(1)(b) and (c) (subs 46PO(1) and (3A)).
12. The termination of a complaint may be revoked by the President but not after an application has been made to this Court or the Circuit Court under s 46PO in relation to the complaint (s 46PH(4)). As such, it is not open to the AHRC to revoke the termination of the complaint in this case.
13. It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws: Picos v Australian Federal Police [2015] FCA 118 at [36]-[38] (Perry J) (Picos v AFP) and Picos v Servcorp (No 2) (2015) 236 FCR 141; [2015] FCA 343 at [18] (Perry J) (Servcorp (No 2)); Payne v Long [2019] FCA 1765 at [71] (Perry J); Reurich v Shoalhaven Heads Bowling and Recreational Club Ltd [2020] FCA 427 at [13]-[14] (Flick J). As a result, a contravention of the Unlawful Discrimination Laws gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] (RD Nicholson J); French v Gray [2013] FCA 263; (2013) 217 FCR 404 at [149]-[151] (Besanko J); Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; (2010) 63 AILR 101-302 at [71] (Marshall, Rares and Flick JJ). Furthermore, proceedings instituted in the Federal Court or Circuit Court following termination alleging unlawful discrimination may not be brought other than against the respondent or respondents to a terminated complaint (s 46PO(1)).

THE ISSUES

1. Ramsay's challenge to the termination decision is based on the following alternative grounds:
2. the delegate was required to consider whether to terminate the complaints under each potentially relevant discretionary ground of termination in s 46PH(1) of the AHRC Act;
3. the delegate failed to have regard to relevant considerations, each of which would have supported termination on discretionary grounds;
4. the delegate failed to give reasons in relation to s 46PH of the AHRC Act;
5. the decision by the delegate not to terminate under s 46PH(1)(b) and/or (c) was legally unreasonable; and
6. the delegate failed to accord procedural fairness to Ramsay in failing to provide it with certain correspondence between the AHRC and the complainant's representatives in which matters relevant to the discretionary grounds under s 46PH(1)(b) and (c) were raised. (Grounds 1, 2, 3, 4 and 5 respectively.)
7. The Commonwealth, however, submits that Ramsay's challenge to the termination decision suffers from the fundamental difficulty that the President had no duty to give reasons for any prior decisions not to act on Ramsay's requests for termination of the complaints, or for decisions to terminate that she could have made but did not make. Rather, in the Commonwealth's submission, her statutory duty was to give reasons for the termination under s 46PH(1B)(b) of the AHRC Act, which she did, and it cannot therefore be inferred from the absence of reasons for not terminating the complaints on the basis of delay or lapse of time that the delegate failed to consider whether to do so. Instead, the available material is said by the Commonwealth to establish that the delegate was in fact conscious of the age of the conduct and the subject of the complaints, and that she considered whether they should be terminated on that ground.
8. The Commonwealth further submits that what remains of Ramsay's complaints about the delegate's decision making are largely directed, impermissibly, to the merits.
9. Finally, the Commonwealth submits that, even if Ramsay established jurisdictional error in the termination decision, the jurisdiction of the Circuit Court to hear and determine the proceedings brought by the complainant under s 46PO of the AHRC Act has been properly invoked and the relief sought in this proceeding is inutile. However, in circumstances where Ramsay has failed to establish any of their grounds of judicial review, it is unnecessary to consider this question.

GROUNDS 1 AND 2: ALLEGED FAILURE TO CONSIDER TERMINATION ON THE DISCRETIONARY GROUNDS

Relevant principles: statutory construction and relevant considerations

1. Given the centrality of Ramsay's construction of ss 46PF and 46PH to its case, I first address the question of whether there was an obligation imposed on the President by s 46PF to consider terminating the Complaint on the discretionary grounds in s 46PH, notwithstanding (as was common ground) that the President had commenced an inquiry into the Complaint and was satisfied that there was no reasonable prospect of the matter being settled by conciliation. This question underpins the first and second limbs of Ramsay's case, as articulated above.
2. The relevant principles of statutory construction by which this question must be resolved are well established and were conveniently summarised by the Full Court in Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 (Vincentia) at [46]-[48] as follows: In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ explained that: "69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed." The importance of starting with the statutory context and text was recently emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 in the following passage: "14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." Context "in its widest sense", as referred to in this passage, includes "such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with approval in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained with respect to Victoria's equivalent to s 15AA, the approach required by interpretive provisions of this kind "allows a court to consider the purposes of an Act in determining whether there is more than one possible construction" (ibid) … That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, "[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention". (Emphasis in original.)
3. With respect to the principles governing relevant considerations, it was not in issue that a failure to have regard to a relevant consideration, or the taking into account of an irrelevant consideration, which affects the exercise of power is an error of law and gives rise to jurisdictional error: see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J); and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (McHugh, Gummow and Hayne JJ). Whether or not a consideration is a relevant or irrelevant consideration, in this sense, turns upon the proper construction of the provision in question. To answer this question, it is necessary "to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93] (McHugh, Gummow, Kirby and Hayne JJ) (quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24).
4. Similarly, Kiefel and Bennett JJ explained in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [71] that: A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act … (Emphasis added.)

1. Relevantly for present purposes, s 46PF of the AHRC provides that: (1) Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must: (a) consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and (b) if the President is of the opinion that the complaint should be terminated - terminate the complaint without inquiry; and (c) unless the President terminates the complaint under paragraph (b) or section 46PH - inquire into the complaint and attempt to conciliate the complaint. (1A) For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).
2. Section 46PH of the AHRC Act draws a distinction between grounds for terminating a complaint in the exercise of a discretion, on the one hand, and grounds requiring the mandatory termination of a complaint, on the other hand. First, s 46PH(1) confers a discretion on the President to terminate a complaint in the following terms: Discretionary termination of complaint (1) The President may terminate a complaint on any of the following grounds: (a) the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination; (b) the complaint was lodged: (i) in a case where the complaint relates to the Sex Discrimination Act 1984 - more than 24 months after the alleged acts, omissions or practices took place; or (ii) in any other case - more than 6 months after the alleged acts, omissions or practices took place; (c) the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted; (d) in a case where some other remedy has been sought in relation to the subject matter of the complaint - the President is satisfied that the subject matter of the complaint has been adequately dealt with; (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 Circuit and Family Court of Australia (Division 2). Note: An act, omission or practice may not be unlawful discrimination because an exemption applies (for example, section 18D of the Racial Discrimination Act 1975). Accordingly, consideration by the President of the question of whether an act, omission or practice is not unlawful discrimination will involve consideration of whether an exemption applies. (Emphasis added.) (I note that the discretionary ground in s 46PH(1)(b) was subsequently amended by sch 8 cl 1 of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) so as to provide simply that "the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place".)
3. Subsection (1A) in turn provides that "[a] complaint may be terminated under subsection (1) at any time, even if an inquiry into the complaint has begun" (emphasis added).
4. Secondly, s 46PH(1B) and (1C) provide for the mandatory termination of complaints where the President forms a specified state of mind. Specifically, subss (1B) and (1C) provide that: Mandatory termination of complaint (1B) The President must terminate a complaint if the President is satisfied that: (a) the complaint is trivial, vexatious, misconceived or lacking in substance; or (b) there is no reasonable prospect of the matter being settled by conciliation. (1C) The President must terminate a complaint if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) would be satisfied that the alleged acts, omissions or practices are unlawful discrimination. (Emphasis added.)
5. Section 46PH(1D), in turn, provides that "[a] complaint may be terminated under subsection (1B) or (1C) at any time, even if an inquiry into the complaint has begun", mirroring the terms of s 46PH(1A).

No obligation to consider the discretionary grounds during an inquiry where the President must terminate under s 46PH(1B) or (1C)

1. Ramsay contends that s 46PF(1) should be interpreted as imposing a standing implied obligation to have regard to the discretionary grounds for termination in s 46PH(1) after the President (or delegate) has decided to inquire into the complaint and even where the President (or delegate) has an obligation to terminate the complaint under s 46PH(1B) or (1C). On this construction, all of the grounds of termination in s 46PH are mandatory considerations that must be taken into account in deciding whether to terminate a complaint irrespective of whether that course is being considered before or after the complaint has progressed to the point of an inquiry. As Ms Edwards, counsel for Ramsay, submitted, "[s]46PH(1), including subsections (b) and (c), are mandatory by the obligation of [s] 46PF(1)(a), and they are mandatory considerations that should inform the reasons that are required to be given in relation to termination".
2. For the reasons explained below, that construction is not supported by the text or purpose of the provision and therefore must be rejected.
3. First, the only express obligation to consider the matters referred to in s 46PH is that found in s 46PF(1)(a) when the President is considering "whether to inquire into the complaint". If, having considered those matters, the President is satisfied that the complaint should be terminated, the President is then under an obligation to "terminate the complaint without inquiry" (s 46PF(1)(b)). Conversely, if the President is not so satisfied, the President is required to inquire into the complaint and attempt to conciliate it (s 46PF(1)(c)). It is therefore apparent that, at the stage of determining whether to inquire into the complaint, the matters referred to in s 46PH are relevant considerations in the sense that their consideration is a precondition to the valid exercise of the power in s 46PF(1): Peko-Wallsend at 39-40 (Mason J); Yusuf at [82]-[84] (McHugh, Gummow and Hayne JJ). This is subject to the caveat that, on the construction I have upheld, if the President was satisfied of one of the mandatory grounds in s 46PH(1B) or (1C), it would seem logically to follow that it is unnecessary for the President to proceed further to consider the discretionary grounds in s 46PH(1) even at this preliminary stage. However, it is unnecessary to determine that question in the present case.
4. Importantly for present purposes, it is only where the President is not satisfied that the complaint should be terminated for the purposes of s 46PF(1) that the President is required under s 46PF(7) to notify the respondent to the complaint, or other persons the subject of an adverse allegation, of the complaint (unless the President is satisfied that to do so would be likely to prejudice a person's safety). Prior to forming a view as to whether to inquire into the complaint, the President has the power under s 46PF(1A) to inform themselves about such facts and circumstances as are necessary to form the opinion referred to in s 46PF(1)(b) for the purposes of s 46PF(1)(a). That power is not confined otherwise than by the purposes of the Act and therefore in my view would include seeking information from the respondent(s) named in the complaint, as the AHRC in fact did in seeking information from Ramsay Health Care. These aspects of the statutory scheme emphasise the important distinction drawn by the AHRC Act between the initial assessment process mandated by s 46PF(1) upon a complaint being referred to the President, on the one hand, and the processes which are engaged if the complaint survives that initial assessment process, on the other hand.
5. Read as a whole, therefore, s 46PF creates a filtering mechanism which is undertaken before the AHRC is required to advise the respondent to a complaint of the complaint and before any conciliation process under the AHRC Act commences, whereby the President must consider whether engaging in conciliation would be futile or unnecessary, or whether the complaint is without merit or would more appropriately be dealt with elsewhere. As such, there are sound reasons as to why the President is required to consider all the factors in s 46PH at this early. potentially "ex parte", stage of a complaint, armed with the pre-inquiry power in s 46PF(1A) to obtain information relevant to that task.
6. There is, however, no basis in the text of s 46PF for the applicant's construction that s 46PF(1) imposes a continuing or standing obligation on the President to consider whether to terminate the complaint on the discretionary grounds in s 46PH(1) after the President has decided to inquire into a complaint. That construction receives no support on a natural and ordinary reading of the provision. Yet "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
7. Consistently with this, once the President has decided to inquire into the complaint, the respondent must be notified of the complaint (subject to safety considerations: see s 46PF(7)(a), AHRC Act. While the process is not adversarial, the respondents can be expected to raise any discretionary grounds for termination of the complaint within the context of the inquiry and conciliation process. Hence the power in s 46PF(1A) for the President to inform themselves of facts and circumstances necessary to form an opinion as to whether to inquire into the complaint having regard to the matters in s 46PH is spent once the President has formed the opinion referred to in s 46PF(1)(a).
8. Secondly, there are sound reasons as to why a distinction is drawn in the AHRC Act between discretionary grounds for termination and mandatory grounds for termination, which explain why, contextually, the applicant's construction must fail.
9. To allow a complaint to continue despite the President being satisfied that it is trivial, vexatious, misconceived or lacking in substance, or that there is no reasonable prospect that a court would be satisfied that the conduct is unlawful discrimination, would be unfair to the respondent(s) and a waste of time and resources. Hence, s 46PH(1B) and (1C) provide that the President "must" terminate the complaint once she forms one of the states of mind prescribed by these provisions. This construction is supported by the heading above subs (1B) and (1C) which reads "Mandatory termination of complaint", given that section headings are part of an Act under s 13(1) of the Acts Interpretation Act 1901 (Cth) (AIA).
10. Equally, there is no point in allowing a complaint to continue once the President is satisfied that there is no reasonable prospect that the complaint can be resolved by conciliation. That is because the regime in Part IIB of the AHRC Act is directed towards the AHRC endeavouring to facilitate a conciliated outcome between the parties to a complaint. If such an outcome is not reasonably possible, it follows there is no purpose to be served by the complaint remaining with the AHRC. The complaint will then have to be dealt with by the Federal Court or the Circuit Court or in some other forum.
11. It follows that there are compelling reasons as to why s 46PH(1B), (1C) and (1D) impose an obligation upon the President to terminate a complaint where the statutorily prescribed state of mind is reached even after the inquiry has commenced. Furthermore, they explain why no parliamentary intention to require the President to consider the discretionary grounds despite being satisfied of the matters prescribed s 46PH(1B) or (1C) can be inferred. That would not only defer the inevitable termination of the complaint and potentially require an unnecessary expenditure of time and resources on a doomed complaint, at least so far as the AHRC Act is concerned. It would also be inconsistent with the obligation upon the President to terminate the complaint imposed by s 46PH(1B) and (1C) and, therefore, contrary to the primary object of statutory construction being "to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute": Project Blue Sky. Ramsay's submission that the AHRC Act does not impose any requirement to make a decision under s 46PH(1B)(b) where conciliation has occurred and there is no reasonable prospect of conciliation cannot therefore be sustained. Section 46PH(1B)(b) and the other mandatory grounds of termination in s 46PH(1B)(a) and (1C) provide that the President "must terminate a complaint" if the President is satisfied that a particular ground is established. Such language plainly requires a decision where the President is so satisfied.
12. The discretionary grounds in s 46PH(1) do not, however, turn upon whether the President has reached a particular state of mind which is a straightforward question of fact in the sense that either the state of mind exists or it does not. Rather, the discretionary grounds require a nuanced, balancing process to be undertaken by the President. For example, while not of the view that a complaint meets the standard of being trivial, vexatious, misconceived or lacking in substance, nonetheless the President may be satisfied that the alleged conduct is not unlawful discrimination and may therefore terminate the complaint under s 46PH(1)(a). As another example, while there may have been delay of more than 24 months in lodging a claim of sex discrimination, factors such as the seriousness of the complaints and the existence of an explanation for the delay such as embarrassment, the existence of a power imbalance between the complainant and the respondent, and mental distress or illness, may be compelling reasons why the President concludes that a complainant should nonetheless have the benefit of engaging the AHRC processes. Alternatively, the President may consider that extensive delay is likely to impact detrimentally on the quality of evidence and, in circumstances where no explanation is given for the delay, decide to terminate the complaint, as the delegate indicated here with respect to the complaints under the ADA.
13. Importantly, once the President decides to embark upon the inquiry and the respondent has been notified of the complaint, it can be expected (as earlier explained) that factors potentially engaging the balancing exercise required to be undertaken to assess whether to terminate a complaint will be raised by the parties having regard to the particular circumstances of that complaint, albeit that the process under the AHRC Act is not adversarial. Where that balance might be struck may also change during the course of the inquiry, as more information comes to light. It may also be the case, for example, that respondents might not wish to take any point as to delay but wish also to engage in conciliation. These sorts of considerations explain why, in the context of an inquiry, there is no ongoing obligation on the President to consider whether to terminate the complaint on the discretionary grounds in s 46PH once the inquiry commences. To hold otherwise would give rise to the difficulty that, unlike the mandatory grounds in s 46PF(1) and s 46PH(1B) and (1C) where the obligation to terminate crystallises at the moment when the President reaches the necessary state of satisfaction, there is no objectively ascertainable point in time during an inquiry at which the President must consider the discretionary matters in s 46PH(1).
14. Thirdly, Ramsay relies on the decision in Chircop v Technical and Further Education Commission [2022] FCA 1015 (Chircop) to contend that the President must consider discretionary reasons to terminate in s 46PH(1) in deciding whether to inquire into a complaint, even if a mandatory ground is otherwise established. That decision does not however assist Ramsay's construction. In Chircop, the President terminated the complaint without inquiry under s 46PF(1)(b) on the basis that she was satisfied for the purposes of s 46PH(1)(c) that, in all of the circumstances, an inquiry was not warranted. The President did so having regard to a number of factors including a failure by Mr Chircop to apply to the Court when his first complaint (which contained many of the same complaints) was terminated, a possible failure to pursue another avenue (the NSW Ombudsman), TAFE's belief that there was "little prospect of resolution by conciliation" and the fact that "the delegate considered that the prospect of Mr Chircop achieving a practical outcome through the Commission's complaint process was 'very limited'": Chircop at [62]-[66] (Katzmann J). However, a "little" or "limited" prospect of a successful conciliation is not the same as the President being satisfied, under s 46PH(1B)(b), that there is "no reasonable prospect" of conciliation at all. Rather, if the President is satisfied that there is a limited prospect of a successful conciliation only, the President may consider that factor in the context of the discretionary ground to terminate in s 46PH(1)(c) "that an inquiry, or the continuation of an inquiry, into the complaint is not warranted".
15. Fourthly, Ramsay relied in support of its construction on the consequences for a respondent such as Ramsay where the President terminated a complaint under s 46PH(1B)(b) rather than under the discretionary grounds in s 46PH(1)(b) or (c), namely, the loss of the requirement for the complainant to seek leave in any subsequent proceedings in a court. However, Ramsay did not identify any reason as to why the distinction between those cases where leave to proceed was required and those where it was not required a departure from the ordinary and natural meaning of the text in ss 46PF(1) and 46PH(1B) and (1C); nor did Ramsay rely upon any extrinsic material or legislative history in support of that view, or indeed otherwise. Furthermore, it is difficult to see why the purpose of the requirement to seek leave at the point of commencing litigation should support Ramsay's construction. As Mortimer J (as her Honour then was) explained in James v WorkPower Inc [2018] FCA 2083 at [37], the purpose of that requirement is "to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level". This requirement for leave under s 46PO(3A) applies to all complaints which have been terminated save for those terminated because the President is satisfied that the complaint involves an issue of public importance which should be considered by the Federal Court or the Circuit Court which plainly should not therefore require leave, or (as here) where there is no reasonable prospect of conciliation. As to the latter, it is evident that Parliament intended that, in cases where there is no point in pursuing or continuing to pursue conciliation in the AHRC, the parties should be entitled to pursue relief in the ordinary course through the Federal Court or Circuit Court without any requirement of leave. This, in turn, reflects the fact that "termination on the basis of no reasonable prospect of conciliation does not reflect the merit of the complaint.": Revised Explanatory Memorandum to the Human Rights Legislation Amendment Bill 2017 (Cth) at p. 31.
16. Finally, an alternative way in which Ramsay frames this issue is to submit that a discretionary ground does not itself compel the President to terminate a complaint, but may affect the assessment of whether a mandatory ground in s 46PH(1B)(a) and (1C) is satisfied. For similar reasons, this framing does not assist Ramsay. Once the obligation in s 46PF(1) is discharged, the President is not mandatorily obliged to account for every consideration that might have been relevant to a mandatory ground. The only obligation in s 46PH(1B) and (1C) is that the President "must" terminate a complaint as a consequence of their satisfaction of a mandatory ground.
17. It follows, in my view, that there is no jurisdictional error in the delegate's finding that she was required to terminate the complaint under s 46PH(1B)(b) of the AHRC Act because she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. That being so, there was no obligation upon her to consider whether or not to terminate the complaint on any of the discretionary grounds in s 46PH(1) by operation of s 46PF(1). The obligation under s 46PF(1) to consider the matters in s 46PH(1) was spent when the decision was made between 18 May 2022 and 14 June 2022 to inquire into the complaint and attempt to conciliate it.

In any event, Ramsay has not discharged the onus of establishing that delegate failed to consider termination under s 46PH(1)

1. In any event, the onus lies upon Ramsay to prove that the delegate (wrongly) failed to consider whether to terminate elements of the Complaint under s 46PH(1)(b) and/or (c).
2. An allegation that a decision-maker has fallen into error because of what the reasons for decision do not state can be demonstrated only inferentially: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360 (Dixon J). In this regard, as I explain below, there was no obligation on the delegate to give reasons for not terminating the Complaint, as opposed to giving reasons for termination; nor, given the mandatory requirement to terminate where the requisite state of satisfaction is reached, could the delegate's consideration of whether to terminate on a discretionary ground be relevantly "material" to the President's decision. Absent, however, an obligation to give reasons, "it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said" by the delegate: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [25] (French CJ, Bell, Keane and Gordon JJ).
3. In the present case, I agree with the Commonwealth that no sound basis for the inference which Ramsay seeks to draw has been established. To the contrary, it is apparent that the delegate did give consideration to the age of the conduct which was the subject of the Complaint and to the difficulties in identifying certain respondents to the Complaint. First, a delegate of the President undertook an initial assessment of the Complaint under s 46PH(1) on 23 November 2021 expressing the view that, despite most of the allegations complained of having occurred in early part of the complainant's employment (2006-2014), he "claims a continuum of conduct up to June 2021, so at this stage, ss46PF(1)(b) and 46PH(1)(b) do not appear appropriate". The same view was expressed in the delegate's "Complaint Assessment" dated 1 December 2021. Secondly, following correspondence between Ramsay's solicitors and the complainant to the AHRC about the significance of the delay, on 18 May 2022 the AHRC wrote to the complainant's solicitors advising that the delegate would consider terminating the ADA complaint under s 46PH(1)(b) which concerned isolated conduct in 2010-2011. The complainant agreed to withdraw that complaint. Thirdly, before proceeding to terminate the Complaint, it will be recalled that the AHRC wrote to Ramsay's solicitors seeking confirmation of whether Ramsay remained of the view that it could not identify Dr Wong (see above at [24]), despite this not being raised as a ground of termination by Ramsay.
4. Given these matters, ultimately the challenge by Ramsay on this ground reflects their strong disagreement with the merits of the delegate's assessment at various times that termination having regard to the age of most of the complaints was not warranted given the complainant's allegation that these formed part of a continuum of conduct and were not isolated incidents.

GROUND 3: ALLEGED FALURE TO GIVE REASONS FOR THE DECISION NOT TO TERMINATE ON DISCRETIONARY GROUNDS

1. In the alternative to grounds 1 and 2, Ramsay contends that the Notice of Termination should be set aside on the ground that the delegate failed to give reasons for her decision not to terminate the complaint on the discretionary ground of delay.
2. In this regard, it is common ground that, while the Notice of Termination includes reasons for the President's satisfaction that there is no reasonable prospect of the matter being settled by conciliation, it does not include reasons for not terminating on the discretionary grounds in s 46PH(1)(b) and (c).
3. However, quite apart from the fact that Ramsay did not explain why, as a matter of statutory construction, a failure to give reasons should provide a basis for setting aside the Notice of Termination, ground 3 cannot succeed because there is no obligation for the President (or delegate) to give reasons for a "decision" not to terminate on discretionary grounds.
4. First, there is no common law obligation to give reasons for an administrative decision: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43] (French CJ, Crennan, Bell, Gageler and Keane JJ). That being so, the scope of the obligation to give reasons for an administrative decision is a question of statutory construction. As the High Court held in Wingfoot at [44] with respect to a requirement for reasons by a Medical Panel under the Accident Compensation Act 1985 (Vic): The standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act falls therefore be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication.
5. In the present case, the process of construction to which the High Court refers is informed by s 25D of the AIA, as well as contextual considerations apparent from the AHRC Act. Section 25D of the AIA provides that: Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
6. Secondly, s 46PH(2) of the AHRC Act provides that, "[i]f the President terminates a complaint, the President must notify the complainants in writing of the termination and of the reasons for the termination". Thus, while there is an obligation to provide reasons for terminating the complaint, there is no obligation to provide reasons for not terminating the complaint on other grounds in s 46PH. The President is therefore only required to give reasons for decisions to terminate that they actually make. Equally, s 25D of the AIA requires the decision-maker only to set out the findings which the decision-maker in fact makes and considers to be material. As, McHugh, Gummow and Hayne JJ held in Yusuf at [68] in rejecting the proposition that the Tribunal was required to make findings under s 430 of the Migration Act 1958 (Cth) on each and every issue of fact that was objectively material to the decision which it was required to make: Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (Emphasis in original.)
7. Similarly, Gaudron J held in Yusuf at [34], "findings which are not made cannot be set out. Once that is accepted, s 430(1)(c) must be construed as requiring the Tribunal only to set out its findings on what it considers material questions of fact."
8. Applying this reasoning to the present context, the factual question that was relevantly "material" was simply why the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)). In the Notice of Termination, the delegate set out the findings of fact that she considered material to this question. No more was required. It follows that ground 3 cannot succeed. Contrary to Ramsay's submission, there is no basis in the AHRC Act or s 25D of the AIA for holding that the Notice of Termination was required to set out reasons for not terminating the Complaint on each potentially relevant ground of termination set out in s 46PH or each ground raised by a respondent to a complaint, regardless of whether those grounds played any role in the delegate's decision to terminate the Complaint. That exercise would be pointless.
9. Thirdly, this construction is further supported by the fact that there is no duty to give reasons to a respondent to a complaint under the AHRC Act, even on request. Section 46PH(2) requires the President to "notify the complainants in writing of the termination and of the reasons for the termination". Separately, s 46PH(3) provides that, "[o]n request by an affected person who is not a complainant, the President must give the affected person a copy of the notice that was given to the complainants under subsection (2)". Provision is only made for the notification of "complainants" and an "affected person". Neither term, however, encompasses the respondent to a complaint. Thus s 3 defines a "complainant" as "a person who lodged the complaint, whether on the person's own behalf or on behalf of another person or persons" and an "affected person" as "a person on whose behalf the complaint was lodged". It follows therefore that Ramsay has no entitlement under the AHRC Act to be given a copy of the Notice of Termination explaining the reasons for the decision. That weighs against an inference that the reasons must include reference to grounds in s 46PH that primarily deal with or respond to Ramsay's interests and representations. Added to this, the "reasons for the termination" serve a limited function. This is because termination, which does not necessarily resolve any substantive issues between the parties, is not subject to any right of appeal or merits review. Rather, its purpose is to bring the complaints process under the AHRC Act to an end. It is then open to a complainant to seek relief from the Federal Court or Circuit Court which, on termination, has jurisdiction to entertain a claim subject, in the case of termination on grounds other than s 46PH(1)(h) or s 46PH(1B)(b), to the grant of leave: see s 46PO(1) and (3A). It may also, of course, be open to a complainant to pursue alternative redress from another statutory authority such as, depending on the matter, an ombudsman or the Fair Work Commission, which may be more appropriate than the AHRC, bearing in mind that this may itself be a discretionary ground for termination under s 46PH(1)(g).

GROUND 4: ALLEGED UNREASONABLENESS OF ANY DECISIONS NOT TO TERMINATE

1. The principles governing legal unreasonableness can relevantly be summarised as follows.
2. First, legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court). However, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential first to bear in mind that the Court's jurisdiction is strictly supervisory: Li at [66] (Hayne, Kiefel and Bell JJ). As the Full Court of the Federal Court emphasised in Eden at [59], determining whether a decision is vitiated by legal unreasonableness: does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
3. Secondly, where the contention, as appears to be the case here, is that an administrative decision is illogical or irrational, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] that "the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it".
4. Thirdly, it follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker: SZMDS at [130] (Crennan and Bell JJ). It follows that disagreement, indeed even emphatic disagreement, with the decision-maker's reasoning is not sufficient to make out illogicality: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [61] (the Court). As the Full Court explained in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]-[86]: differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). …
5. Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [9] (Allsop CJ, with whose reasons Wigney J agreed at [90]). Thus, as the Full Court explained in Eden at [63], "in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute": see also Li at [24] (French CJ), [67] (Hayne, Kiefel and Bell JJ).

1. Ramsay submits that it was unreasonable for the AHRC to ignore their concerns about delay and to adopt inconsistent approaches between unidentifiable individual respondents and Ramsay. As earlier mentioned, the allegation appears to be that it was unreasonable because this was illogical or irrational.
2. Ramsay's submissions, however, largely focus on the merits of not terminating the balance of the complaints set out in the Complaint under s 46PH(1)(b) which it is beyond the jurisdiction of the Court to review. Rather, as the Commonwealth correctly submits: Within the confines of law, that was a decision which the [AHRC] Act left to the delegate's discretion. In the absence of a statement of reasons, it is neither necessary nor useful to pick over the reasons that the delegate might have had for not deciding to terminate under s 46PH(1)(b) (or any other provisions). (Emphasis in the original.)
3. In any event, this is not a case where "only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or … the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn": SZMDS at [135]. To the contrary, it was open to the AHRC to find that the balance of the complainant's claims constituted a "continuum of conduct" such that the discretionary power of termination in s 46PH(1)(b) was not appropriate. The complainant's statement to the AHRC alleged racial discrimination between 2006 and 2021 and sexual orientation discrimination between 2008 and 2021. While the question for this Court is not whether the conduct was correctly characterised as a "continuum" on the merits, the fact that this was the way in which the complainant framed his complaints about this conduct and the fact that it occurred in the context of the complainant's employment with Ramsay Health Care, among other factors, shows that it was not legally unreasonable for the AHRC not to terminate the balance of the complaints under s 46PH(1)(b) having regard to this characterisation of the complaints. The fact that Ramsay disagrees strongly with this characterisation and may have compelling reasons for its view to the contrary, does not establish legal unreasonableness, as is clear from the authorities earlier discussed.
4. Nor has Ramsay established that it was legally unreasonable for the delegate to adopt a different approach for claims against Ramsay Health Care as compared to individual respondents such as Ms O'Donnell and Dr Wong. For example, an employer is likely to hold employee and other records or sources of information which may assist it in responding to a complaint which are not likely to be available to individual respondents. Furthermore, the claims here were of a continuum of discriminatory conduct and therefore potentially of systemic cultural issues within Ramsay Health Care which it had failed, as employer, to address. Thus, as the Commonwealth submits: it would not have been unreasonable to terminate the complaints against Ms O'Donnell and Mr Wong as individuals, but not to terminate the complaints against Ramsay for the conduct of Ms O'Donnell and Dr Wong … The significance of delay for individuals who had left employment with Ramsay might be very different from the significance of delay for Ramsay, as an employer alleged to be responsible over many years for a discriminatory work environment.
5. Further, an employer may be able to respond to complaints which are unenforceable against individuals from a practical perspective for reasons of location or identification, but which are otherwise maintainable
6. Moreover, once the inquiry had commenced, it was open to the delegate to await further information and conciliation before considering the possibility of termination for delay or on other discretionary grounds, given that the AHRC Act not only affords the President a discretion as to whether or not to terminate on discretionary grounds, but also the discretion or latitude to decide when to consider that question after an inquiry has commenced. In this regard, it is important to bear in mind that an assessment of the weight to be given to delay as a discretionary factor for termination will be influenced by other factors, such as whether an adequate explanation for the delay has been given and the impact of the delay on the fairness of the AHRC's processes. By contrast, once the delegate was satisfied that there was no reasonable prospect of the Complaint being resolved by conciliation, she was required to terminate the Complaint. For the reasons earlier explained, for the delegate then to defer a decision to terminate on that ground in order to consider discretionary grounds runs counter to the scheme of the AHRC Act and would potentially place the delegate in breach of her duty to terminate.

1. First, in broad terms, the requirements of procedural fairness are concerned to ensure that a person who may be affected by an exercise of power is afforded an opportunity to be heard: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). In most cases, this requires, as the High Court explained in SZSSJ at [83]: that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of the power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
2. In turn, this generally requires disclosure of information adverse to the person that is "credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 (Brennan J (as his Honour then was)). As such, procedural fairness only requires that reasonable opportunity be given to the person to deal with matters adverse to the person's interests that the decision-maker proposes to take into account: eg Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 at [123] (McHugh J); Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ).
3. However, the content of procedural fairness is flexible and is ultimately a question of "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). As Brennan J observed in Kioa at 611-2: It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed. … The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
4. Secondly, and conversely, the Full Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 591 explained that "[w]ithin the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case". As the Full Court (Besanko, Gleeson and Burley JJ) held in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 at [38]: Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: [citing Alphaone at 590-591]. (Approved for example, in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [68] (the Court).)
5. Thirdly, it follows from these principles that the rules of procedural fairness do not require that an opportunity to be heard must be afforded in all cases. Rather, the obligation is to afford an opportunity to be heard where that is reasonable in all the circumstances known to the decision-maker and having regard to the applicable legal framework within which the power falls to be exercised: Kioa at 616 and 627 (Brennan J). As Gageler J (as his Honour then was) explained in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [367]: Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances.
6. Finally, save where the nature of the error is such that it necessarily satisfies the requirement of materiality, the onus lies upon an applicant to establish that the alleged breaches of procedural fairness were material to the impugned decision on the basis of inferences drawn from the evidence: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [41] and [46] (Bell, Gageler and Keane JJ); Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [32(5)] (the Court); LPDT v Minister for Immigration, Cirizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [6] and [13] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). In this regard, as the plurality in LPDT held at [14]-[16]: The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Emphasis in the original.)

The bases on which a breach of procedural fairness is alleged

1. Neither in its originating application nor in the accompanying affidavit does Ramsay identify with any particularity what it says constituted the alleged breaches of procedural fairness. However, the arguments as put in oral and written submissions by Ramsay appear to reduce to the following allegations of a breach of procedural fairness:
2. the delegate's assessment dated 23 November 2021 was made without affording Ramsay an opportunity to be heard;
3. the delegate failed to address Ramsay's submissions on delay relevant to the discretionary power to terminate in s 46PH(1)(b) (relying upon Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531); and
4. the AHRC failed to copy Ramsay's solicitors into the correspondence from the AHRC to the complainant's solicitors, namely:
   1. the letter dated 18 May 2022 in which the AHRC advised that it was considering terminating the complainant's ADA complaint under ss 46PF(1)(b) and 46PH(1)(b).
   2. emails over the period August to October 2022 relating to Dr Wong, Dr Palmer, Ms Esther and Ms O'Donnell. (Procedural fairness issues 1, 2, 3(a) and 3(b) respectively.)

No breach of procedural fairness has been established

1. Applying the principles summarised above, none of the grounds on which Ramsay alleges a breach of procedural fairness establish any such breach, whether considered individually or cumulatively. Procedural fairness issue 1
2. With respect to procedural fairness issue 1, Ramsay's contentions centred on the notation by the delegate in the initial assessment dated 23 November 2021 that "[m]ost of the allegations occurred in early part of his employment (2006-2014), however, C claims a continuum of conduct up to June 2021, so at this stage, ss46PF(1)(b) and 46PH(1)(b) do not appear appropriate". It was not in dispute that the reference to "C" was a reference to the complainant. Ramsay submitted that, while clearly a preliminary view, it was only at this point that the AHRC "directly confront[ed] the issue of delay". However, Ramsay submitted that the allegation of a continuum of conduct was "factually inaccurate" and that sounded in an issue of law because there was an obligation to hear from Ramsay before an initial decision was made about whether to terminate the complaint or undertake an inquiry.
3. This argument, with respect, is flawed.
4. First, no decision was made on 23 November 2021. This was a preliminary view only, as Ramsay accepts, expressed in an internal document with respect to a decision made at some time between 18 May and 14 June 2022 to complete the initial assessment under s 46PF(1) and proceed with the inquiry and conciliation processes.
5. Secondly, the decision to proceed with the inquiry and conciliation is not challenged by Ramsay.
6. Thirdly, there is no express statutory requirement to afford procedural fairness by extending an opportunity to the respondents to a complaint to be heard before a decision is made by the President on whether or not to conduct an inquiry, or indeed even for the respondents to be notified of the existence of a complaint before the President decides whether to proceed with an inquiry and conciliation (s 46PF(7)). These factors tell strongly against any necessary implied duty to extend an opportunity to be heard to the respondents to a complaint at this stage of the complaints process, even though it does not rule out the possibility that, in particular circumstances, a duty could arise at this initial stage. In any event, by the time that the initial assessment was completed and a decision was made to proceed with an inquiry and conciliation, Ramsay's solicitors had in fact written to the President on 17 December 2021 and 5 May 2022 requesting termination of the complaint under s 46PH(1)(b) on the grounds of delay. There is nothing to suggest that those submissions by Ramsay were not considered by the delegate. Given that there is no obligation to provide reasons for not terminating the complaint on other grounds in s 46PH, no inference can be drawn from the absence of a discussion of these submissions that they were not considered. Procedural fairness issue 2
7. Ramsay submits that, in failing to address the discretionary ground for termination of delay in s 46PH(1)(b), the delegate failed "to respond to a substantial, clearly articulated argument relying upon established facts" made by Ramsay and thereby failed to comply with the requirements of natural justice: Dranichnikov at [24] (Gummow and Callinan JJ); see also Viane.
8. However, for the reasons earlier given with respect to grounds 1 and 2, once the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation, s 46PH(1B) of the AHRC Act required the delegate to terminate the complaint. There was no obligation on the delegate in such circumstances nonetheless to consider any discretionary grounds for termination under s 46PH(1); nor was there any obligation to consider termination on discretionary grounds at any earlier point in time once the President decided to proceed with inquiry and conciliation. In those circumstances, it can be inferred that the President did not address Ramsay's submissions on delay or the fact that Dr Wong could not be identified in its reasons for termination because those issues were simply not material to its decision to terminate under the mandatory ground in s 46PH(1B)(b).
9. It follows that Ramsay's reliance by analogy on Dranichnikov and Viane is misplaced. There was no express obligation under s 46PF or s 46PH of the AHRC Act to invite and consider representations from the respondents to a complaint before terminating the complaint under s 46PH(1B)(b); nor in the circumstances did any procedural fairness obligation at common law arise to consider representations from Ramsay with respect to the potential termination of the complaint on discretionary grounds in s 46PH(1).
10. Nor, in any event, was there any obligation on the President to give reasons for a "decision" not to terminate on a discretionary ground or to set out findings on matters which it did not consider material for the reasons earlier given. It cannot therefore be inferred that the delegate failed to consider Ramsay's submissions. To the contrary, it is clear that the AHRC did in fact consider Ramsay's arguments on delay in both the delegate's assessment dated 23 November 2021 and its letter dated 18 May 2022 (see 5.4 above). Procedural fairness issue 3(a)
11. By way of further elaboration of procedural fairness issue 3(a), it will be recalled that the letter from the AHRC to the complainant's solicitors dated 18 May 2022 advised that the delegate may consider terminating the ADA complaint given the very significant delay, the lack of any explanation for the delay, and the impact of the delay on the fairness of the process. It was common ground that this letter was not copied to Ramsay's solicitors. Ramsay also referred to the failure to copy its solicitors into responses to that letter from the complainant's solicitors dated 1 June 2022 stating that "we are now formally seeking instructions from our client in relation to not pressing the age discrimination allegations and discontinuing that aspect of the complaint", and 2 June 2022, stating that the complainant "is amenable to withdrawing those age discrimination complaints".
12. There was no breach of procedural fairness in the failure by the AHRC to copy Ramsay into this chain of correspondence for a number of reasons.
13. First, neither the letter nor its response includes information in relation to the ADA claim that is relevantly "adverse" to Ramsay so as to require an opportunity for Ramsay to comment. The correspondence instead demonstrates the AHRC's willingness to accede to part of Ramsay's request in relation to the termination of the ADA claim, and the complainant's subsequent withdrawal.
14. Secondly, Ramsay contends that the failure to copy it into the AHRC's letter dated 18 May 2022 was a breach of procedural fairness given that the letter "reveals the limited consideration given to the out of time issue (that is, only in respect of the ADA, and not in respect of the SDA or the DDA)" despite the fact, in Ramsay's submission, that these "reasons" were equally apposite to the SDA and DDA claims. However, by the time of this letter, Ramsay had already made submissions that the Complaint should be terminated on the ground of delay under s 46PH(1)(b) on 17 December 2021 and 5 May 2022, and had been copied into the complainant's solicitors' email on 9 May 2022 objecting to dismissal on the basis of delay. In those circumstances, Ramsay's submissions on this issue rise no higher than a complaint that the delegate failed to invite comment from Ramsay on the delegate's evaluation of the significance of delay. However, the decisions in Alphaone and SZLPH to which I have earlier referred make it clear that, within the bounds of rationality, the requirements of procedural fairness do not extend to inviting comment on the decision-maker's evaluation of the material before them.
15. Thirdly, it also follows from these matters that Ramsay has not established that the failure to copy it into the relevant course of correspondence gave rise to a practical injustice: SZMTA at [38] (Bell, Gageler and Keane JJ). There has been no denial of an opportunity to make submissions. Ramsay's complaint rises no higher than a failure to afford it an opportunity to press submissions already made to the delegate and to criticise the delegate's mental processes.
16. Nor, in any event, was any denial of an opportunity to make submissions material in that it could realistically have resulted in the delegate making a different decision. For the reasons earlier given, once the delegate was satisfied that there was no reasonable prospect of the complaint being resolved by conciliation, it was required to terminate the complaint. There was no room for discretionary factors such as delay to play a role in the delegate's decision to terminate under s 46PH(1B)(b); nor was there any obligation on the delegate to consider at an earlier point in time whether to terminate the Complaint by reference to the discretionary considerations in s 46PH(1) once the President had completed the initial assessment under s 46PF(1) and decided to proceed with an inquiry and conciliation.
17. Finally, in oral submissions Ramsay relied in support of procedural fairness issue 3(a) on the statement in the letter dated 18 May 2022 from the AHRC to the complainant's solicitors that: For alleged acts, omissions or practices that took place before 13 April 2017, as is the case in Mr Anastasiou's ADA Complaint, the timeframe remains 12 months.
18. In Ramsay's submission, it was apparent from this statement that the AHRC considered the incorrect version of the AHRC Act by having regard to a 12-month period rather than a 6-month period. As such, it was said that, in failing to copy Ramsay's solicitors into this correspondence, Ramsay was deprived of the opportunity to comment upon and correct the error.
19. While suffering from a number of difficulties, the short answer is that Ramsay's submission takes the statement in question out of context. The preceding paragraph notes that s 46PH(1)(b) of the AHRC Act provides for discretionary termination "if the complaint was lodged more than six months after the alleged acts, practices or omissions took place" save (as the AHRC noted at FN1 of the letter) to a 24-month period in the case of complaints under the SDA. The reference to the 12-month period in the statement on which Ramsay relies simply recognises that the ADA Complaint relates to matters that took place both before and after the amendments which were effected by the Human Rights Legislation Amendment Act 2017 (Cth) came into force. Procedural fairness issue 3(b)
20. With respect to procedural fairness issue 3(b), Ramsay focuses first on the failure by the AHRC to provide it with a copy of an email dated 9 August 2022 from the AHRC to the complainant. In that email, the AHRC advised that: The formal withdrawal of the complaints against Ms O'Donnell and Dr Wong will occur upon finalisation of the complaint, but for practical purposes the matter is to be treated by the parties as having been withdrawn against these individuals.
21. If this email had been copied to Ramsay's solicitors, Ramsay contends that it would have been able to submit to the delegate that the Complaint was equally incapable of being maintained against Ramsay insofar as it related to the unidentified Dr Wong and, therefore, the failure to copy Ramsay into the email was a breach of procedural fairness. However, quite apart from other difficulties with the submission, Ramsay has failed to establish how the loss of this opportunity could realistically have resulted in a different outcome in circumstances where this is not self-evident. In any event, the short answer to this submission is that Ramsay's solicitors had been notified of the complainant's desire to withdraw his complaint against Dr Wong in an earlier email from the AHRC on 28 July 2022. As such, the email on 9 August 2022 merely restated a matter that was already known to the parties.
22. In support of its submission on procedural fairness issue 3(b), Ramsay also relies on the failure by the AHRC to copy it into correspondence between the AHRC and the complainant over the period 16 August 2022 to 19 October 2022 with respect to the uncertainty in identifying the respondent described by the complainant as "Dr John Wong". Contrary to Ramsay's submission, however, the AHRC did notify Ramsay's solicitors of the substance of this issue and expressly afforded Ramsay an opportunity to make submissions on it. In particular, on 13 October 2022, the AHRC wrote to Ramsay's solicitors "to seek confirmation on RHC's views relating to the individual respondent identified in the complaint as Dr John Wong". On 14 October 2022, Ramsay's solicitors replied, confirming that "there is no person that matches the description provided by the Applicant". This exchange represents disclosure of the substance of the correspondence between the AHRC and the complainant in question, being the uncertainty surrounding the identification of Dr Wong. Ramsay therefore had an opportunity to make submissions, prior to termination, about the Complaint not being maintainable insofar as it related to Dr Wong even though they failed, expressly at least, to make that submission.
23. To the extent that Ramsay raises an issue with correspondence between the AHRC and the complainant in respect of Dr Palmer, Ms Esther and Ms O'Donnell, no practical injustice emerges from a failure to copy the email to Ramsay's solicitors. The correspondence spanning 16 August 2022 to 19 October 2022 concerns the identity of the persons and whether the complainant wished to proceed with claims against them. Apart from Dr Wong, each person was eventually identified by the AHRC and a complaint only proceeded against Ms Esther, who is an applicant in this proceeding. There was no error in a failure to copy Ramsay into correspondence concerning identification issues which were not adverse to Ramsay, and were ultimately resolved.
24. Finally and in any event, it will be recalled that on 21 September 2022 the AHRC wrote to Ramsay's solicitor advising that the delegate "is minded to terminate Mr Anastasiou's complaints against the remaining respondents on the basis that she may be satisfied there is no reasonable prospect of the complaints being settled by conciliation". As such, Ramsay was expressly on notice that the Complaint may be terminated on this basis, and not on discretionary grounds such as delay. Yet, despite Ramsay contending in this application that the delegate should not have terminated the Complaint on this basis, or at least should also have considered the discretionary grounds, Ramsay made no submission to this effect to the delegate following receipt of this message. However, there was nothing precluding Ramsay from doing so at any time between 21 September 2022 and the issuing of the Notice of Termination on 24 October 2022.

CONCLUSION

1. For these reasons, Ramsay has failed to establish any error in the termination of the complaint. The originating application must therefore be dismissed. The Commonwealth stated at the hearing that it did not seek an order for costs. As such, there will be no order as to costs vis a vis the Commonwealth. However, the question of the complainant's costs will be reserved, as requested by the complainant at the hearing and bearing in mind that there is no necessary entitlement for an intervener to an order for costs. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.