v The Anti-Discrimination Commissioner [2003] TASSC 27

Discrimination Law - State provisions - Discrimination on the basis of age and gender - Complaint - Extent of power of Anti-Discrimination Commissioner to nominate the respondent.

Commissioner for Police v Reid [2000] TASSC 181; (2000) 9 Tas R 418, distinguished.

Anti-Discrimination Act 1998 (Tas), ss3 and 62.

Discrimination Law - State provisions - Discrimination on the basis of age and gender - Conduct by the Director of Public Prosecutions relating to the institution of proceedings - Whether such conduct amounts to the provision of services - Nature of Director of Public Prosecutions' prosecutorial discretion.

Barton v R [1980] HCA 48; (1980) 147 CLR 75, applied.

R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818; R v Immigration Tribunal, ex parte Kassam [1980] 1 WLR 1037, followed.

Anti-Discrimination Act 1998 (Tas), s22.

Judgment Number: [2003] TASSC 27

THE SECRETARY OF THE DEPARTMENT OF JUSTICE and INDUSTRIAL RELATIONS v THE ANTI-DISCRIMINATION COMMISSIONER

1 By a letter dated 12 July 2002, the respondent advised that she had decided to refer a complaint, made pursuant to the provisions of the Anti-Discrimination Act 1998 ("the Act") to the Anti-Discrimination Tribunal for inquiry. The letter advised that the referral was in accordance with the Act, s78(2). It was common ground that the intention was to refer to s78(1)(a). Pursuant to the Judicial Review Act 2000, s17, a person who is aggrieved by such a decision is entitled to apply to this Court for an order of review. The issues are whether the applicant is entitled to such an order and, if yes, what form should it take.

2 PS and LS are the parents of EKS. Her age does not appear from the papers that form the basis for the application for review, but they suggest that in 1999 she was a secondary school student. EKS suffers from an extremely rare progressive neurological disorder that falls within the spectrum of mitochondrial encaphalopathies. The prominent effects of this disorder are epilepsy and muscle deterioration. EKS is totally dependent upon her parents and other carers for all her basic physical needs such as dressing, bathing and feeding. Her motor ability is so poor that she requires a wheelchair. She has limited verbal communication skills, but is able to express herself to a limited degree and let her needs be known, especially to those who know her well.

3 For several years prior to April 1999, EKS and her brother, who tragically suffers from the same disorder, spent one weekend a month with another family to give their parents respite. In April that year, following one such respite period, EKS communicated to her parents that she had been sexually assaulted by the male carer of the host family. The police were notified and EKS was interviewed by police officers at the Glenorchy Police Station on 27 April 1999.

4 EKS's parents were concerned about several aspects of this interview, including the absence of a lift in the building which necessitated EKS leaving her wheelchair and crawling upstairs and the conduct of an interview with EKS sitting in an ordinary chair and propped upright against a table. This, it was said, inhibited her gesturing with her hands and having such gestures recorded on the videotape. This interview was the subject of a complaint made pursuant to the provisions of the Act, but it was subsequently resolved without reference to the Tribunal, and is not relevant for the purpose of determining the issues on this application.

5 The complaint of sexual assault and the police interview were referred to the Director of Public Prosecutions. A decision was made by the Director of Public Prosecutions not to prosecute the alleged perpetrator for the commission of any offence against EKS. By a letter dated 19 January 2000, the Director of Public Prosecutions wrote to EKS's parents setting out his reasons for taking that decision. It is quite a long letter. It is signed by Mr T Ellis SC, who was, and is, the Director of Public Prosecutions. Central to his decision not to prosecute was the difficulty of EKS giving evidence and being cross-examined because of her limited communication skills. In this respect, the Director of Public Prosecutions' letter contained the following two paragraphs:

"3 The Public Guardian has suggested to Mr Stoddart on his recent inquiry a suitably qualified person, Ms Sharon Wilkinson, who may be able to get to know [EKS] well enough to become an interpreter for this purpose. However, there is a question of cost.

4 Even if Ms Wilkinson is or could be made available, and can get sufficiently familiar to interpret that does not necessarily mean that the stage would be reached where it would be appropriate to proceed with a criminal charge. Mr Stoddart's letter to you of 21st July 1999 enumerates in points (3) to (6) other difficulties. However, if you want to investigate retaining Ms Wilkinson's services further, please advise and I will make further inquiries."

6 On 21 March 2000, EKS's parents made a complaint to the respondent arising out of par3 set out above, alleging in effect, that it was evidence of discrimination against EKS on the grounds of age and disability. On a form which the parents completed and lodged with the respondent, they wrote with respect to par3:

"It appears that the DPP were [sic] more concerned about the cost of an interpreter for [EKS] more than prosecuting the perpetrator. We feel the discrimination towards [EKS] because of her special needs and associated costs required for her to be cross-examined outweighed the DPP charging the perpetrator."

7 The Act, s16, provides that a person must not discriminate against another person on the grounds of any of the attributes set out in subs(2), two of which are age and disability. The latter is, but the former is not, defined by the Act, s3. Sections 14 and 15 provide that the discrimination may be direct or indirect. Section 14(2) provides:

"(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."

8 Relevantly, s22(1) provides:

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

(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);

9 The Act, PtVI, to which I shall refer later, deals with complaints and their resolution. For the moment, it suffices to note that by s60(1) it is provided that a complaint, defined by the Act, s3, to mean a complaint made in relation to (inter alia) discrimination, is to be made to the respondent. Section 64 gives the respondent a power to reject a complaint in the circumstances prescribed by the section. Section 67 provides that if the respondent accepts a complaint, she is to notify "the respondent" of that decision and give him or her reasons for such acceptance and a copy of the complaint or a summary of it. Section 69 authorises the respondent to investigate a complaint.

10 At the outset, it should be noted that the respondent accepts that in the exercise of his prosecutorial discretion, the Director of Public Prosecutions' decision not to prosecute is not reviewable by the Anti-Discrimination Tribunal. In Barton v R [1980] HCA 48; (1980) 147 CLR 75, the High Court held that the exercise of the Attorney-General's prosecutorial discretion is not reviewable by a court, and it would require the clearest expression of view by the Parliament that notwithstanding Barton, its intention was to subject that discretion to review by the Anti-Discrimination Tribunal. No such expression appears in the Act. So what exactly is the complaint? On behalf of the respondent, Mr G Geason, who appeared as her counsel, submitted:

"The complaint is the conduct in paragraph 3 viz, discriminatory conduct in requiring the child's parents to meet the cost of providing the services of an interpreter which might have assisted her articulate the allegation she made."

11 Is that submission correct? The Act does not define the word "complainant", but as a matter of common sense, it means the person or persons who makes or make a complaint. Section 62 requires a complaint to (inter alia):

* "identify the person, class of persons or organisation against whom the alleged discrimination ... was directed and against whom the complaint is made";

12 I find that the complaint is the document dated 21 March 2000, signed by EKS's parents and lodged with the respondent, the relevant part of which has already been set out. I do not accept Mr Geason's submission as to the substance of the complaint. There is nothing in the letter of the Director of Public Prosecutions dated 19 January 2000 to suggest that EKS's parents should, or would have to, or might have to, pay for Ms Wilkinson's services to enable her to get to understand EKS well enough to become her interpreter. The only reasonable inference open from the relevant paragraph of the Director of Public Prosecutions' letter is that the cost to the Director of Public Prosecutions was a relevant adverse factor in his decision not to prosecute. This view of the complaint coincides with that held by Ms Sharyn Newman, to whom the respondent delegated the initial task of deciding whether to accept or reject the complaint. In her report to the respondent dated 4 May 2000, Ms Newman said with respect to the relevant paragraph in the Director of Public Prosecutions' letter dated 19 January 2000 (erroneously referred to in the report as bearing the date 17 January 2000):

"Mr and Mrs [S] believe that [EKS's] special needs and the cost of obtaining an interpreter to make adjustments for those needs were more important to the DPP than prosecuting the offender."

13 In a letter to the applicant dated 11 May 2000, the respondent advised the applicant that she had accepted the complaint for investigation for possible breaches of the Act, s16(b) and (k) (age and disability). She enclosed a document entitled "Summary of Claim". In that summary, the respondent wrote in the penultimate paragraph:

"[EKS] also may have been treated less favourably due to the cost of obtaining an interpreter to assist her to give evidence. Consequently, the DPP may have directly discriminated against [EKS] in the provision of services to her, and the Commission [sic] will investigate this issue."

"Finally, the justice system processes in general may disadvantage children with disabilities who are victims of crime and who wish the perpetrator of the crime to be prosecuted by the criminal justice system. Consequently, the Department of Justice & Industrial Relations may have indirectly discriminated against [EKS] on the basis of her disability and age and the Commission [sic] will investigate this issue."

Mr Geason did not contend that the matter raised in the last paragraph of the "Summary of Claim" had been the subject of a complaint against the applicant, his Department or the DPP.

14 The complaint made by EKS's parents identifies the Director of Public Prosecutions as the person against whom the complaint is made. In her letter dated 11 May 2000, the respondent wrote that "the Department of Justice and Industrial Relations has been named as respondent to the claim". The Act, s3, defines respondent to mean "a person against whom a complaint is made". "Person" is defined to include organisation and "organisation" is defined to include (inter alia) "a government department within the meaning of the State Service Act 2000". It is quite clear that the parents of EKS have named the author of the letter in respect of which complaint is made, as the person against whom a complaint is made, not the Department of Justice and Industrial Relations, nor any other person as defined by the Act. It is not the prerogative of the respondent to decide that the respondent to a complaint is someone different from that nominated by the complainant. In this respect, this case is quite different from that considered by the learned Chief Justice in Commissioner for Police v Reid [2000] TASSC 181; (2000) 9 Tas R 418. In that case the complainant identified "Police Academy - Training" as the person who had discriminated against her, but the learned Chief Justice found that in the body of the form there was ample material "from which it can be seen that various officers of that institution concerned in the training of recruits for induction in the Tasmania Police Force are alleged to have been involved in discrimination or prohibited conduct". The learned Chief Justice said at par7:

"It would be obvious to any reader of the complaint that the proper authority having responsibility for the Academy and the named officers is the person or organisation against whom the complaint is made."

I respectfully agree with the following passage taken from the judgment of the learned Chief Justice in that case, at par8:

"The Commissioner's jurisdiction to commence an investigation comes initially from a complaint of discrimination or prohibited conduct. That complaint does not require the precision of a formal document such as an indictment or civil pleading. It does not have to be served on the person or organisation complained against. The term 'respondent' is defined in s3 as a person or organisation against whom a complaint is made. The appellant argues that the Commissioner has no right to nominate a respondent. I do not accept this. It is for the Commissioner to determine, from the material available in the complaint lodged or otherwise available (see the Act, s6(1) which enables the Commission 'to collect and analyse data relating to complaints made in relation to discrimination and prohibited behaviour'), the person or organisation against whom a complaint is made and hence the appropriate respondent to notify under s39. The name of the person or organisation concerned may not be known to the complainant, but if he or she can provide in the complaint sufficient information to enable that person or organisation to be ascertained, that will be sufficient to satisfy that requirement for the Commissioner's jurisdiction to be seized of the matter and to commence an investigation."

15 However, the learned Chief Justice's view that the Commissioner has the right to nominate the respondent, has to be read in the context of the facts of that case. I do not understand his Honour to there be stating that the respondent has a right to nominate as a respondent whomever she thinks is appropriate. The respondent may assist a complainant, who requires assistance, to make a complaint and in so doing clarify the identity of the person against the whom the complaint is made (s62(2)). In this case, the complaint refers to a letter written by the Director of Public Prosecutions and clearly identifies the author of that letter as being the person who allegedly discriminated against EKS and, therefore, the respondent to the complaint. In those circumstances, it was inappropriate for the respondent to nominate the Department of which the applicant is the Secretary as the respondent to the complaint. No complaint had been made against that organisation.

16 I interpolate at this stage, that in her correspondence, the respondent consistently used the words "claim" and "claimant" in lieu of the statutory expressions "complaint" and "complainant". Each use is accompanied by a footnote:

"Claim and claimant under this documentation refers to a complaint and complainant under the Anti-Discrimination Act 1998."

17 Further, virtually all the correspondence written by or on behalf of the respondent in this case is written on letterhead entitled "Anti-Discrimination Commission". Frequently, the correspondence refers to actions by the Commission. There is no body known as the "Anti-Discrimination Commission". There is an Anti-Discrimination Commissioner with statutorily prescribed functions and powers, and there is an Anti-Discrimination Tribunal. Various sections of the Act do refer to a Commission, but s3 defines a "Commission" as "a body authorised by any Act to conduct inquiries". Where the word appears in the text of the Act, it is clear that it is a reference to statutory commissions set up by another statute. The respondent's stance in these respects is curious and slightly confusing.

What happened after the complaint was accepted?

18 I infer from the material before me that upon receipt of the respondent's notification of acceptance of the claim, the applicant referred the matter to the Director of Public Prosecutions and asked him to act on his behalf. There followed what can only be described as an unseemly and acrimonious exchange of correspondence between the Director of Public Prosecutions, the respondent and her delegates, and the lodgement of complaints by the former about the latter to the Ombudsman. The stance taken by the Director of Public Prosecutions was to the effect that he, and not the applicant, or the Department of Justice and Industrial Relations, was the proper respondent to the complaint. Other than denying that the cost of interpreting services was more important to him than prosecuting the offender, the Director of Public Prosecutions declined to respond to the complaint on behalf of the applicant or his department.

19 The Director of Public Prosecutions' complaints to the Ombudsman included:

* that the DPP was not engaged in supplying goods or services and, therefore, EKS was not engaged in, or undertaking any, activity in connection with the supply of goods and services, so the conduct complained of was not within the purview of the Act;

* that the respondent to the complaint was the DPP and that the Anti-Discrimination Commissioner had not notified him of the complaint as was required by the Act, s67; and

* the summary of claim provided by the respondent was not a true summary of the complaint.

20 In the absence of the Ombudsman, the Acting Ombudsman concluded (inter alia):

* that the DPP was exercising his prosecutorial discretion and not engaged in the supply of goods and services and accordingly neither was EKS;

* the respondent to the complaint was the DPP and he had not been given notice of acceptance of the complaint as was required by the Act; and

21 Upon receipt of these findings by the Acting Ombudsman, the respondent instituted proceedings in the Court against that officer challenging these and other findings made by the Acting Ombudsman. See Anti-Discrimination Commissioner v Acting Ombudsman [2002] TASSC 24. Crawford J held that the Court's jurisdiction was confined to determining whether the Acting Ombudsman had jurisdiction to investigate the complaints and did not extend to expressing a view about the opinions expressed by the Acting Ombudsman as a result of his or her investigation. However, in the course of his reasons for judgment, Crawford J said at par6, with respect to the identity of the respondent to the complaint:

"On the face of the letter, a claim against the Department of Justice and Industrial Relations was erroneous because the Department was neither responsible for Tasmania Police nor the office of the Director of Public Prosecutions."

22 With respect to the two paragraphs in the summary of claim sent to the applicant with the letter dated 11 May 2000, Crawford J said at par7:

"However, as I pointed out in the last paragraph, the Department was in no sense responsible for actions of Tasmania Police nor for the office of the Director of Public Prosecutions. The Director is an independent statutory officer, appointed by the Governor under the Director of Public Prosecutions Act 1973. Also, it is difficult to understand how the Department of Justice and Industrial Relations could be held accountable for "the justice system processes" which led to the Director's reticence about prosecuting. The material processes of that system have been established by the laws of Parliament and laws made by courts, for which the Department has no responsibility."

23 The hearing of the respondent's case against the Acting Ombudsman was concluded on 24 October 2001 and the decision reserved. Meanwhile, on 2 August 2001, a delegate of the respondent wrote to the Director of Public Prosecutions and advised that the investigation into the claim "has now been concluded". The letter confirms that it was the respondent's view that the correct respondent in this matter was the Department of Justice and Industrial Relations and states, somewhat enigmatically:

"The material in the claim form and that gathered during the course of the investigation suggests to the Commissioner that, perhaps, the claim may also involve possible discrimination on the administration of a State law and program."

24 The letter expresses the view that as the applicant has not responded to the complaint, the belief is that resolution of the complaint by way of conciliation may be unlikely, but by way of last opportunity, referral to the Tribunal will be postponed for 14 days. The letter concludes that if there is no response from the Director of Public Prosecutions within that time, the delegate will report to the respondent that the applicant is "content for the matter to be referred to the Tribunal without conciliation".

25 According to the material before me, the next event was a letter from the respondent to the Director of Public Prosecutions dated 30 January 2002 which opened with these words:

"We are seeking to finalise this claim. The question now is whether a conciliation conference would assist in resolution of the claim. To facilitate the possibility of this resolution, the Commission asked Murdoch Clarke, as [the complainants'] solicitors, to put forward the matters the claimant's consider relevant to a conciliated outcome."

26 The lengthy letter then sets out matters that might form the basis of a conciliation conference. It concludes with a request for a response by 8 February. The respondent received a response by letter dated 1 February 2002. It was not conciliatory in its terms. It asked if the provisions of the Act, s78(2), had been complied with and referred to the complaint made to the Acting Ombudsman.

27 On 7 February 2002, the respondent wrote a long memorandum about this matter to Ms Sharyn Newman. Although a delegate of the respondent wrote on 2 August 2001 that the investigation had concluded, it is quite clear from the respondent's letter dated 30 January 2002 and this memorandum to Ms Newman, that as at 7 February 2002, the respondent had not yet decided what ought to be done about the complaint.

28 The provisions of the Act confer on the respondent wide-ranging statutory duties with respect to discrimination and prohibited conduct. They include advising the Minister, promoting acceptable attitudes, consulting and inquiring into discrimination and prohibited conduct, research, publication of guidelines, and the like. Of the 10 statutory functions, only one concerns complaints, viz, to investigate and seek to conciliate complaints.

29 Although s60(2) empowers the respondent to "investigate any discrimination or prohibited conduct without the lodgement of a complaint if satisfied that there are reasonable grounds for doing so", this does not give her a power to extend the ambit of a complaint. A complaint is made by a person other than the respondent about the conduct of another person or organisation identified as the respondent. With respect to such complaints, the respondent's statutory duties are firstly to give assistance, if required, with respect to the formulation of a complaint. Secondly, to decide whether to accept or reject a complaint. Thirdly, if accepted, to investigate the complaint. Fourthly, to determine whether the complaint should be dismissed, referred for conciliation or referred to inquiry and last, if necessary, to refer to the Tribunal for inquiry.

30 The Act, s64, specifies the circumstances in which a complaint may be rejected. Section 71 then provides for what is to occur upon "the completion of an investigation of a complaint". The section requires the respondent or her delegate to "determine" that either:

(a) the complaint is to be dismissed on grounds that are specified with respect to s64; or

(b) the complaint is to proceed to conciliation; or

(c) the complaint is to proceed to an inquiry by the Anti-Discrimination Tribunal.

31 Upon such determination, the respondent or her delegate is to notify the complainant and the respondent and, in the event of dismissal, provide written reasons for such dismissal.

32 Mr Geason submitted that the determination that was required to be made by virtue of s71 was made by 2 August 2001 as is reflected in the delegate's letter of that date. I reject that submission. Whilst it is clear from that letter that the respondent's delegate had decided not to dismiss the complaint, s71 required him to determine which one of the three statutory options set out in subs(1) he would adopt. The letter and subsequent documentation make it crystal clear that as late as 7 February 2002, no determination between inquiry and conciliation had been made.

33 In view of this finding of fact, it is unnecessary to deal with Mr Geason's submission that the Court had no jurisdiction to review the impugned decision. Shortly stated, the submission was that:

* the Judicial Review Act 2000, s17(3), applies only to decisions made after 1 December 2001 when the Act commenced;

* the impugned decision, evidenced by the letter dated 12 July 2002 and said to have been made in accordance with the Act, s78(1)(a), cannot be reviewed because, of necessity, a review of the s78(1)(a) decision involves a review of the s71 determination and the latter was made prior to the commencement of the Judicial Review Act.

34 The Act, s70 and following, deal with the referral of a complaint for inquiry by the Tribunal and the proceedings and powers of that Tribunal. Section 78 provides:

"78 - (1) The Commissioner or an authorised person is to refer a complaint for inquiry if the Commissioner or authorised person -

(a) believes the complaint cannot be resolved by conciliation; or

(b) has attempted to resolve the complaint by conciliation but has not been successful; or

(c) believes that the nature of the complaint is such that it should be referred for inquiry.

(2) The Commissioner or an authorised person is to refer a complaint within 6 months after notification under section 67 or within any further period agreed with the complainant, regardless of whether the investigation of the complaint has been completed.

(3) The Commissioner or an authorised person is to notify the respondent of any further period agreed under subsection (2)."

35 Section 79 requires the respondent to provide the Tribunal with a report relating to any complaint that is referred to the Tribunal. Section 89 sets out the powers of the Tribunal upon it finding that "a complaint is substantiated". Those powers include a power to impose a fine not exceeding $2,000. It seems to me unlikely that this Court has no power to review a decision made after the commencement of the Judicial Review Act if that review will of necessity, involve a review of a decision made prior to the commencement of the Act. However, as I say, it is unnecessary to explore this as I am not satisfied that any relevant decision was made prior to the commencement of the Judicial Review Act.

36 Perhaps because the respondent was awaiting the outcome of her litigation against the Acting Ombudsman, she proposed by a letter to the complainants' solicitors dated 15 February 2002 that the complaint be split into two parts, one part being the complaint against the police and the other part being the complaint against the Department of Justice and Industrial Relations. The letter said that a matter for discussion was an extension of time for a referral to the Tribunal of the complaint against the Department of Justice and Industrial Relations. (See s78(2).) The solicitors for the complainants noted that the complaint was "caught up" in the proceedings in this Court between the respondent and the Acting Ombudsman and agreed to an extension of time for referral to the Tribunal.

37 On 21 April 2002, the respondent wrote to the complainants and advised them that a conciliation conference with respect to their complaint against the police would be held on 1 May 2002. It was duly held and, as mentioned, the complaint was resolved.

38 On 16 May 2002, the Director of Public Prosecutions wrote to the respondent noting (inter alia) that he had not heard from her since February that year. The respondent replied by letter dated 16 May 2002. There is nothing in that correspondence relevant to the matter presently for determination.

39 The reasons for judgment in the Anti-Discrimination Commissioner v the Acting Ombudsman (supra) were handed down on 9 May 2002 and on 26 May 2002, the respondent wrote a long memorandum to an "Investigation and Conciliation Officer". When the proceedings before me commenced, I was handed a file of documents and told by counsel that all of them went into evidence by consent, except document 88. This matter was not referred to again during the course of the hearing. The memorandum dated 26 May 2002 is document 88. Accordingly, I shall not have regard to it.

40 The next relevant document is the letter from the respondent to the applicant dated 12 July 2002 conveying the impugned decision to refer the complaint to the Tribunal for inquiry. No reference is made to the decision that had to be made pursuant to s71, and in all the circumstances, I can only conclude that its provisions were overlooked, perhaps due to the passage of time. However, I do not see this as being of any moment, as having concluded back in August 2001 that it was unlikely that the complaint could be resolved by conciliation, the only remaining options under s71 were to dismiss it on one of the specified grounds or to direct an inquiry. Mr Ellis submitted that I should find that the respondent did not consider the option provided by s71 of dismissing the case on one or more of the specified grounds and consequently there has been non-compliance with the statutory requirements imposed upon the respondent. In the light of the tenor of the correspondence prior to August 2001, I reject that submission. The evidence strongly points to the conclusion that by August 2001, the respondent or her delegate had decided that dismissal was not appropriate, but was then uncertain how best to proceed.

The application of the Act

41 As stated earlier, the Act only applies to discriminatory conduct in the areas of activity prescribed by the Act, s22, in the following terms:

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

(f) administration of any law of the State and any State program on any ground specified in section 16(e) ...;

42 Mr Geason submitted that the complaint fell within the provisions of s22(1)(c) and (f), and that the discrimination was upon the attributes prescribed by the Act, s16(b), (f) and (k) viz, age, gender and/or disability. Application of the provisions of ss14(2) and (3), 16(b), (e) and (k) and 22(1)(c) and (f) to Mr Geason's submission produces the following statutory formula:

It is wrongful to treat A less favourably than B, if a ground for that less favourable treatment is based on the age, gender and/or disability of A, and A is at that time engaged in, or undertaking any, activity in connection with [the]:

* administration of any law of the State and any State program on gender.

43 I have to say that these provisions of the Act are difficult to understand, and so far as my own researches are concerned, and presumably those of counsel, unique to this jurisdiction. Section 22 confines the areas of activity within which there may occur conduct that is in breach of the provisions of the Act by reference to the activity, not of the alleged offender, but the alleged victim. This is quite different from other similar Australian legislation that simply makes it wrongful for a person - eg, in the supply of goods and services, to discriminate against a person on one or more of the prescribed grounds.[1] The question is whether, at the relevant time, was EKS "engaged in, or undertaking any, activity in connection with the provision of ... services, or the administration of any law of the State and any State program on the ground of gender"?

44 With respect to the second alternative, the respondent wrote to the Australian Institute of Criminology with a request for information as to whether females, and particularly disabled females, are more likely to be the "target of", or vulnerable, to sexual abuse than males. She sought the same information from the New South Wales Bureau of Crime Statistics and Research, and the Tasmanian Minister for Health and Human Services. Apparently this was done to find out if the complaint involved indirect discrimination as defined by the Act, s15, which provides that there is indirect discrimination if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who share one of the attributes set out in the Act, s16.

45 Section 22(1)(f) is also difficult to understand. The use of the conjunction "and" leads to the conclusion that the paragraph refers to the administration, not of any law of the State or any State program on any ground specified in the identified paragraphs of s16, but to the administration of any law of the State and any State program on any ground specified in the identified paragraphs of s16. Quite what that means is hard to see. How can a complainant be engaged in, or undertaking any, activity in connection with the administration of any law of the State and any State program on the ground of gender? I do not comprehend what is meant by a State program on the ground of gender. Principally, it is the words "on any ground" that trouble me in that part of the section. However, whatever it may mean, and assuming that females, and particularly disabled females, are more vulnerable to being the victims of sexual crimes, it is quite clear that at no relevant time was the DPP, the applicant or EKS engaged in, or undertaking any, activity in connection with the administration of any law of the State and any State program on the ground of gender. Indeed, it is equally clear that the DPP, the applicant or EKS was not engaged in, or undertaking any, activity in connection with the administration of any law of the State or any State program of any kind. The DPP was not administering any State law at the time he considered the problems of EKS giving her evidence and the difficulties of obtaining someone who could get to know her well enough to interpret what she wished to convey. He might well have been considering the application of a State law or laws and he might well have been exercising a statutory power conferred upon him by a State law, but he was not administering any law. Further, he was clearly not administering any State program, whether such program was on the ground of gender or not. It follows that it is even more apparent that at the relevant time neither the applicant nor his Department was doing any of those things.

46 At the relevant times, EKS was not doing anything herself. She made a complaint to the police and it was referred to the Director of Public Prosecutions. If neither the applicant nor the DPP were engaged in, or undertaking, any activity in connection with the administration of any law of the State and any State program on the ground of gender, then neither was EKS.

47 I turn to the next question. At the time of the conduct that was the subject of the complaint, was EKS engaged in, or undertaking any, activity in connection with the provision of services? Cox CJ considered this part of s22 in R v The Anti-Discrimination Commissioner; ex parte McDermott [2000] TASSC 180; (2000) 9 Tas R 332. With respect to the correct approach to the interpretation of this kind of legislation, his Honour referred to I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 15 and cited this passage from the judgment of Brennan CJ and McHugh J:

"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."

48 It is also necessary to bear in mind that their Honours pointed out, at 14, that because the Equal Opportunity Act 1984 (WA) provided artificial definitions of discrimination, and because the Act was limited in the extent of its operation, it would be wrong to "approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act". In that case it was held that the local authority was providing a service by considering a planning application in accordance with the provisions of the planning scheme. The decision of the local authority as result of that consideration was not the provision of a service. Brennan CJ and McHugh J said at 17:

"However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions."

49 R v Immigration Tribunal, ex parte Kassam [1980] 1 WLR 1037 was a case that concerned the Secretary of State and the Immigration Rules. It was contended that in giving immigrants leave to enter or remain in the UK, the Secretary of State was concerned with the provision of facilities to a section of the public. The relevant statutory provision provided, "It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public ...". The Court of Appeal held that the Secretary of State was not a person concerned with the provision of facilities to the public, but was "exercising statutory powers to control immigration" and that any facility that might be provided was not within the scope of the section.

50 Kassam was distinguished in Savjani v Inland Revenue Commissioners [1981] QB 458. In that case it was held that the Commissioners provided a facility or service when giving tax advice and/or tax relief to members of the public. The point of distinction made by Templeman LJ at 468, was that Savjani was "absolutely entitled" to tax relief and the Commissioners for Inland Revenue were providing a facility or service when giving him that relief and/or providing him with advice about it, but in Kassam, the Secretary of State was exercising wide discretionary powers.

51 Both these cases were considered by the House of Lords in R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818. Lord Fraser of Tullybelton, at 835, expressed his approval of the decision in Kassam. Lord Scarman took the opposite view of Kassam at 843, and Lord Brandon of Oakbrook concurred with him at 843. However, the other law Lords agreed with Lord Fraser's view of this case at 844 and 849.

52 This question of what constitutes the provision of facilities and services came before the Court of Appeal (UK) again in Farah v Commissioner of Police of Metropolis [1988] QB 65. At issue in this case was the conduct of the police in investigating and prosecuting the plaintiff who was a Somali refugee. The Court held that insofar as a police officer assists and protects the public, he or she is providing a service or facility, but in the pursuit, arrest and charging of criminals, the police officer is not providing a facility or service. He or she is then exercising or performing the duties of his or her office.

53 The Act, s3, provides an inclusive definition of services. Services relating to any profession and services provided by a State authority appear in that definition. Mr Geason submitted that at the relevant time, the DPP was providing a legal service to EKS and, therefore, as the recipient of that service, EKS was engaged in, or undertaking an activity in connection with that service. However, application of the above authorities leads me to the conclusion that at the time the DPP acted as described in pars3 and 4 of his letter dated 19 January 2000 and which led to the making of the complaint, he was not providing a service but performing a statutory duty.

54 The letter opens with the words "... I am writing to set out some aspects of why, on the current state of the evidence, I will not be proceeding against [the alleged perpetrator]." Read in context, those paragraphs describe some of the reasons why the DPP exercised his statutory prosecutorial discretion against proceeding to lay a complaint, or file an indictment against the alleged perpetrator of a sexual crime against EKS. Those reasons are part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services.

55 In addition, given the respondent's acceptance that the Director of Public Prosecutions' decision not to prosecute is not reviewable by the Tribunal, it follows that the factors that he took into account in the exercise of that decision are also not reviewable. I was referred to a decision of Kennedy v Department of Justice and Industrial Relations and Bugg, 23 February 2001. However, that case was quite different from this one. In _Kenned_y the complaint was unconnected with the exercise of the prosecutorial discretion. It concerned the "non-communication of why the initial decision not to prosecute was made and the policies and procedures of the office of the Director of Public Prosecutions and their implementation in practice ...".

56 The Judicial Review Act, s17, sets out the grounds upon which the decision, evidenced by the respondent's letter dated July 2002, may be reviewed. They include:

* that the decision was not authorised by the enactment under which it was purported to be made;

* that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

* that the decision involved an error of law (whether or not the error appears on the record of the decision).

57 The respondent's decision to refer the complaint made by the parents of EKS to the Tribunal was not authorised by law, was an improper exercise of power by the respondent and involved an error of law because:

* the Department of Justice and Industrial Relations is not the respondent to the complaint;

* the DPP is the respondent and there has been non-compliance with the statutory conditions precedent for the referral to the Tribunal of the complaint against him;

* the conduct about which complaint is made did not occur while EKS was engaged in, or undertaking any activity in connection with the provision of services and therefore cannot amount to conduct prohibited by the Act;

* the conduct about which complaint is made was conduct by the DPP in the exercise of his prosecutorial discretion and as such, cannot amount to prohibited conduct within the meaning of the Act; and

* the conduct about which complaint is made did not occur while EKS was engaged in, or undertaking any activity in connection with the administration of any law of the State and any State program on the ground of gender.

58 The respondent's decision, evidenced by her letter to the applicant dated 12 July 2000, to refer the complaint of EKS to the Tribunal for inquiry is quashed.

[1]See, with respect to the supply of goods and services: Disability Discrimination Act 1992 (Cth), s24; Racial Discrimination Act 1975 (Cth), s13; Sex Discrimination Act 1984 (Cth), s22; Anti-Discrimination Act (NT), s41; Anti-Discrimination Act 1977 (NSW), s33; Anti-Discrimination Act 1991 (Qd), s46; Equal Opportunity Act (SA) 1984, s85K; Equal Opportunity Act 1995 (Vic), s42; Equal Opportunity Act 1984 (WA), s20.