CONSIDERATION
It is plain, for reasons identified by Merkel J in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93, that the jurisdiction of the Commissioner under s 52(1) of the Act to inquire into an alleged unlawful act of which complaint is made under s 50 is not subject to a pre-condition that the complaint relates to an act which is in fact unlawful. It is therefore unnecessary for me to give consideration to whether any act undertaken by the Commonwealth in relation to Ms Elliott could be found to be unlawful by virtue of Part II of the Act.
It is contended by the Commonwealth that Ms Elliott's memorandum of 8 May 1996 does not constitute a complaint against either the Department (which is not itself a legal entity) or the Commonwealth. Section 50 of the Act requires a complaint to be in writing and to allege "that a person has done an act that is unlawful by virtue of a provision of Part II …" In the Simplot Australia case at 93-94 Merkel J took the view that s 50 of the Act does not require the complaint in writing to include any details of the allegedly unlawful act. In my view, s 50 is open to the construction that the complaint in writing must allege some conduct by a person which is alleged to be unlawful by virtue of a provision of Part II. However, as I am not satisfied that the construction of the section adopted by Merkel J was plainly wrong, I adopt his Honour's construction of the section (Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627).
Nothing said by Merkel J in the Simplot Australia case, however, provides support for the contention that a complaint in writing under s 50 of the Act need not identify the person or entity against which the complaint is made. The complaint considered by his Honour in that case did identify the entity against which the complaint was made.
A complaint under s 50 of the Act is not to be equated to a criminal complaint or information nor to a pleading in a civil legal proceeding (Langley v Niland [1981] 2 NSWLR 104 at 107-108). I see no reason to conclude that a complaint under s 50 of the Act need accurately name the person or entity against which complaint is made (Re NSW Corporal Punishment in Schools Case (1986) EOC 92-160). In many cases a complainant may not be in a position to do this. However, in my view, whether by name, description or necessary deduction from such details of the allegedly unlawful act as are set out in the complaint, the complaint must identify the respondent party or parties to the complaint. It may be noted that the Act is drafted in terms which appear to assume that a complaint under s 50 will identify the respondent party or parties (see, for example, the reference in s 52B to "the parties to the complaint" and the reference in s 55(2) to "the person who is alleged to have done the act"). A complaint may lead to a proceeding of an essentially adversarial nature before the Commission (Shadforths Limited v Human Rights Commission (1991) 32 FCR 303 at 315). This would also tend to suggest that a complaint must identify the respondent party or parties. I note that in a case concerning comparable provisions of the Race Discrimination Act 1975 (Cth), Drummond J said:
"The inquiry conducted under s 25A [by the Race Discrimination Commissioner] is an inquiry into a complaint by the complainant alleging that an act has been done by the respondent". (Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 456 at 467).
Moreover, the significance of s 52(2)(c) of the Act, which authorises the Commissioner not to inquire into, or not to continue to inquire into, an act of which complaint is made if a period of more than twelve months has elapsed since the act was done, would be significantly undermined if a complaint were required to identify neither the respondent party nor the act of which complaint is made. A complaint in writing purportedly lodged with the Commission under s 50 of the Act, which states no more than "I am aggrieved by the doing by a person of an act that is unlawful by virtue of the provisions of Part II of the Act" would, in my view, not be a complaint which complies with s 50 of the Act.
However, as is mentioned above, Ms Elliott by her memorandum dated 8 May 1996 did give details both of the acts of which she complained and of the perpetrator of those acts. She gave particulars of conduct allegedly engaged in by Dr Nanda which she characterised as "sexual harassment and intimidation". Dr Nanda is plainly a person alleged to have done acts of which Ms Elliott has complained in her memorandum. He is a respondent party to Ms Elliott's complaint. Although it is not necessary on this application for a determination to be made as to whether Ms Elliott's former employer, assuming such employer not to have been Dr Nanda, is also a respondent party to the complaint, I see no reason to conclude that it is not. The memorandum explicitly refers to the acts of which complaint is made having occurred in the course of her employment at the Terrace Medical Centre. If Dr Nanda was not himself Ms Elliott's former employer, it would appear from the content of the memorandum read as a whole to be likely that he was an employee or agent of her employer (see s 106 of the Act). Although not named in the memorandum, I would conclude, on the assumption referred to above, that Ms Elliott's former employer is sufficiently identified by the memorandum as a respondent party to her complaint.
However, not only is neither the Department nor the Commonwealth named in Ms Elliott's memorandum, the acts referred to in the memorandum were not, and are not, alleged to have been acts of the Department or of the Commonwealth or of any employee or agent of either of them. All of the acts are alleged to have occurred on dates later than the finalisation of the placement by the Commonwealth Employment Service of Ms Elliott in employment at the Terrace Medical Centre.
I conclude that Ms Elliott's memorandum of 8 May 1996 is not a complaint in writing alleging that either the Department or the Commonwealth has done an act that is unlawful by virtue of a provision of Part II of the Act within the meaning of s 50 of the Act.
The duty of the Commissioner, once the Commission had notified her of Ms Elliott's complaint, was, in the circumstances, to inquire into the allegedly unlawful acts referred to in Ms Elliott's memorandum and "endeavour, by conciliation, to effect a settlement of the matter" to which the acts relate (s 52(1) of the Act). The inquiry required by s 52(1) is, in my view, an inquiry in aid of the Commissioner's obligation to endeavour by conciliation to effect a settlement between the complainant and the respondent party or parties to the complaint. It is not a power of inquiry at large.
Some weight was sought to be placed in this case on the distinction drawn by s 52(1), and other sections of the Act, between an act of which complaint is made and the matter to which an act relates. Plainly there is a distinction between the two. The matter to which the act relates will ordinarily be broader than the act itself. As Lockhart J pointed out in Johns v Connor (1992) 107 ALR 465 at 475 the meaning to be attributed to the word "matter" has been considered in more than one statutory context including in the context of the Constitution. Little assistance, in my view, is to be gained by a detailed consideration of earlier cases which have given consideration to the meaning of the word "matter". Its meaning in the Act is to be determined by reference to the context in which it is there found. I see no reason to conclude that in this context the word "matter" is not used in its common meaning of "a thing, affair or business" (see Macquarie Dictionary). The matter to which an act relates will comprehend, in addition to the act itself, the factual circumstances relevantly attendant upon the act. So, in the circumstances of this case, the matter to which the acts alleged by Ms Elliott relate will include her resignation from her employment and her alleged suffering of loss or damage, including injury to her feelings or humiliation suffered by her, by reason of those acts. This is the matter which the Commissioner was obliged to endeavour to settle by conciliation (s 52(1)). This is the controversy upon which the Commission will be required to reach a determination (s 81(1)).
The function conferred on the Commission by s 48(1)(h) of the Act, namely the function to do anything incidental or conducive to the performance of any of the other functions conferred on the Commission by the subsection, may not be relied upon to broaden the Commissioner's power of inquiry with respect to a particular complaint under s 52(1) of the Act. It is of significance in this regard, in my view, that the Commission is given, by s 62 of the Act, the power to join a person as a party to an inquiry held by it under the Act but no comparable power is given to the Commissioner when exercising her power under s 52(1) of the Act.
I conclude that the notification of the Commissioner by the Commission of Ms Elliott's complaint made by her memorandum of 8 May 1996 did not give rise to any obligation or authority in the Commissioner under s 52(1) of the Act to inquire into conduct of the Department or the Commonwealth (other than to the extent, if any, that it might have been necessary to do so for the purpose of endeavouring by conciliation to effect a settlement between Ms Elliott and the fourth or fifth respondents) or to endeavour by conciliation to effect a settlement between Ms Elliott and the Department or the Commonwealth. No other source of obligation or authority in the Commissioner to inquire into conduct of the Department or the Commonwealth or to endeavour to effect a settlement or any matter arising between Ms Elliott and the Department or the Commonwealth has been asserted either in the Commissioner's correspondence which is in evidence before me or by counsel for the third respondent.