Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission

STATUTORY BACKGROUND Section 5 of the Act defines sex discrimination for the purposes of the Act. So far as is there relevant, it provides: "5 (1) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person, if, by reason of - (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex. 5 (2) For the purposes of this Act, a person (the "discriminator") discriminates against another person (the "aggrieved person") on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person." Section 26 of the Act, which is within Part II of the Act, provides as follows: "26(1)It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, marital status, pregnancy or potential pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility." Section 28B(1) of the Act, which is also within Part II of the Act, makes it unlawful for a person to sexually harass an employee of the person. Section 105 of the Act provides as follows: "105 A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act." Section 106 of the Act is concerned with unlawful acts of an employee or agent. It provides: "106 (1) Subject to sub-section (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent - (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II, this Act applies in relation to that person as if that person had also done the act. 106(2) Sub-section (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph." Section 48(1)(a) of the Act confers on the Commission the function - "to inquire into alleged infringements of Part II, and endeavour by conciliation to effect a settlement of the matters to which the alleged infringements relate." Section 49(1) of the Act provides that the function of the Commission under s 48(1)(a) shall be performed by the Commissioner on behalf of the Commission. Section 50 of the Act, which is of central importance in this matter, provides, so far as is here relevant, as follows: "50 A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II may be lodged with the Commission by: (a) a person aggrieved by the act …." Section 52 of the Act is concerned with inquires undertaken by the Commissioner. Sub-section (1) provides as follows: "52 (1) Where - (a) a complaint relating to an alleged unlawful act is made to the Commission under section 50; or (b) it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II. the Commission shall notify the Commissioner accordingly and the Commissioner shall, subject to sub-section (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates." Section 57(1) of the Act specifies the circumstances in which the Commissioner is to refer a matter to the Commission. It provides as follows: "57 (1) Where the Commissioner - (a) is of the opinion that a matter cannot be settled by conciliation; (b) has endeavoured to settle a matter by conciliation but has not been successful; or (c) is of the opinion that the nature of a matter is such that it should be referred to the Commission,

the Commissioner shall refer the matter to the Commission together with a report relating to any inquiries made by the Commissioner into the matter. Section 59 of the Act provides as follows: "59 (1) Subject to sub-section (2), the Commission shall hold an inquiry into each complaint or matter referred to it under subsection 52(5) or 57(1) or section 58. (2) The Commission shall not hold, or shall discontinue, an inquiry into a complaint or matter referred to it - (a) in the case of a complaint or matter referred to it under subsection 52(5) or 57(1) - if the complainant notifies the Commission that the complainant does not wish the inquiry to be held or to continue; or (b) in the case of a matter referred to it under section 58 - if the Minister notifies the Commission that the Minister does not wish the inquiry to be held or to continue." Sections 62 and 64 are concerned with parties to an inquiry by the Commission. They provide as follows: "62 Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Commission is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry." "64 The parties to an inquiry shall be the complainant, the respondent, any person joined by the Commission as a party to the inquiry and any person to whom the Commission grants leave to appear as a party to the inquiry." Section 73 of the Act provides as follows: "73 The Commission - (a) may endeavour, by all such means as to it seem reasonable, to resolve a complaint the subject of an inquiry by conciliation; and (b) shall take all such steps as to it seem reasonable to effect an amicable settlement of a complaint the subject of an inquiry and for this purpose may adjourn an inquiry at any stage to enable the parties to negotiate with a view to settlement of the complaint by amicable arrangements." The power of the Commission after holding an inquiry are particularised in s 81 of the Act. So far as it here relevant s 81 provides as follows: "81 (1) After holding an inquiry, the Commission may - (a) dismiss the complaint the subject of the inquiry; or (b) find the complaint substantiated and make a determination, which may include any one or more of the following: (i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct; (ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; (iii) a declaration that the respondent should employ or re-employ the complainant; (iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent; (v) a declaration that the respondent should promote the complainant; (vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant; (vii) a declaration that it would be inappropriate for any further action to be taken in the matter. (2) A determination of the Commission under sub-section (1) is not binding or conclusive between any of the parties to the determination." A determination under s 81(1) may, except where the respondent to the determination is a Commonwealth agency or the principal executive of a Commonwealth agency, be enforced by an order of the Federal Court (s 83A). Sections 84B and 84C of the Act, in effect, ensure the compliance by Commonwealth agencies and principal executives of Commonwealth agencies with determinations of the Commission under s 81(1) of the Act.

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.

As is mentioned above, s 57(1) of the Act specifies the circumstances in which the Commissioner must refer a matter to the Commission. The "matter" referred to in s 57(1) is plainly the "matter to which the act relates" within the meaning of s 52(1) of the Act. Notwithstanding the use of the term "matter" in s 57(1) of the Act, ss 73 and 81 of the Act (each of which is set out above) make it plain that the obligation of the Commission following a referral of a matter to it under s 57(1) is to inquire into the complaint. Section 73 of the Act speaks of "a complaint the subject of an inquiry" and s 81, in specifying the powers of the Commission following the holding of an inquiry, makes it plain that the Commission will either dismiss the complaint the subject of its inquiry or find such complaint substantiated and declare appropriate relief. That is, the subject matter of the Commission's inquiry following a referral of a matter to it under s 57(1) is the complaint which was lodged with it pursuant to s 50 of the Act. In inquiring into the complaint the Commission will naturally have to give consideration to circumstances relevant to the issue of the appropriate relief, if any, should the complaint be found to be substantiated. For the reasons given above I conclude that there was no statutory authority for the referral, purportedly under s 57(1) of the Act, by the Acting Commissioner to the Commission of a complaint against the Department said to have been made by Ms Elliott by her memorandum of 8 May 1996. The third respondent challenged the appropriateness of the naming of the "Sex Discrimination Commissioner" as the first respondent in this proceeding as review is sought of a decision of an Acting Commissioner. Section 103 of the Act authorises the appointment of a person to act as Sex Discrimination Commissioner in the circumstances specified in the section. It is not suggested that the relevant acting appointment was not made in such a circumstance. Section 33A(e) of the Acts Interpretation Act 1901 (Cth) provides, in effect, that where a person is appointed to act in a particular office pursuant to such a statutory authority, while the appointee is acting in the office the Act authorising the acting appointment and any other Act "applies in relation to the appointee as if the appointee were the holder of the office". The provisions of the Act applied to the Acting Commissioner at all times relevant to this proceeding as if she were the Commissioner.

The Acting Commissioner whose decision is the subject of an application for review is no longer acting in the office of Sex Discrimination Commissioner. Section 17 of the ADJR Act provides, so far as is here relevant, as follows: "17. Where - (a) a person has, in the performance of the duties of an office, made a decision in respect of which an application may be made to the Court under this Act; and (b) the person no longer holds, or, for whatever reason, is not performing the duties of, that office, this Act has effect as if the decision had been made by - (c) the person for the time being holding or performing the duties of that office; or (d) (not here relevant)". It was thus appropriate for this proceeding to have been instituted against the Commissioner for the time being. However, Sex Discrimination Commissioner is the name of an office created by s 96 of the Act. The holder of that office from time to time has not been created a corporation sole. The office itself is not a legal personality. It is presumably for this reason that proceedings against the Commissioner have on occasions in the past been commenced using the name of a particular holder of the office (see, for example, Harris v Bryce (1993) 41 FCR 388). However, for the reasons expanded upon by Moffitt P in Kerr v Commissioner of Police [1977] 2 NSWLR 721, difficulties can arise if the holder for the time being of a statutory office is individually named in legal proceedings in which orders are sought which are intended to bind a subsequent holder of the office. In the case of proceedings under the ADJR Act such difficulties would seem to be obviated by s 17 of the ADJR Act. I am aware, however, of no comparable provision which would have application to a proceeding under s 39B of the Judiciary Act. There is the further consideration, as Moffitt P pointed out in Kerr v Commission of Police, that the joining in proceedings of an office holder by name has the undesirable feature of suggesting personal involvement of the office holder with the parties in contest in the proceeding. In Kerr v Commissioner of Police, at 725, Moffitt P concluded that, on an application for an order in the nature of mandamus, subject to an exception not here relevant, "it is inappropriate, productive of problems and wrong" to join members of a tribunal by name or to join the holder of an office by his or her name. In my view, it would have been similarly inappropriate in this case for the Acting Sex Discrimination Commissioner to have been personally named as a party to this proceeding brought under the ADJR Act and pursuant to s 39B of the Judiciary Act. Section 17 of the ADJR Act will have the effect that any order of the Court under s 16 of the ADJR Act made against the Commissioner will bind the person for the time being holding or performing the duties of that office. In this respect s 17 would seem to be declaratory of the common law (Kerr v Commissioner of Police). In my view, it is similarly the case that any order made against the Commissioner in reliance of s 39B of the Judiciary Act will also bind the person for the time being holding or performing the duties of that office. I turn to consider the issue of the appropriate relief in this case. The first decision of which review is sought is the "decision" of the Acting Commissioner by her delegate, to refer Ms Elliott's complaint to the Commission. Section 3 of the ADJR Act defines a decision to which that Act applies in the following terms - "… a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision of the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1". The "decision" of the Acting Commissioner is not a decision included in any of the classes of decisions set out in Schedule 1 of the ADJR Act. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 Mason CJ said: "… a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense of the issue of fact falling for consideration …. Another essential quality of a reviewable decision is that it be a substantive determination. … If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", or concept which appears to be essentially procedural in character." Section 57 of the Act imposes a duty on the Commissioner to refer "a matter" to the Commission in the circumstances specified in the section. The section does not, in my view, provide for the making of any substantive determination of an administrative character by the Commissioner. If one of the circumstances specified by the section arises, the Commissioner is obliged to take the action required by the section. No review has been sought of the determination of the Acting Commissioner that one of the circumstances specified by the section had arisen. The Commonwealth's primary submission indeed, was that the "decision" of the Acting Commissioner to refer Ms Elliott's complaint to the Commission was not reviewable under the ADJR Act. The third respondent similarly submitted that such "decision" was not reviewable under the ADJR Act. I accept the correctness of these submissions. The application formally made by the Commonwealth for review of this "decision" must fail. The second decision of which review is sought is a decision of the Commission refusing an application made on behalf of the Department that a direction be made under s 77(1) of the Act that the Department need not appear at the inquiry into the complaint made by Ms Elliott against the fourth and fifth respondents. Both of the parties represented before me contended that this decision is a decision reviewable under the ADJR Act. I assume that such contentions were made on the basis that the decision amounted to conduct engaged in for the purpose of making a determination under s 81 of the Act. In view of the common submission I need not examine this question more closely. There is, however, a difficulty. The application made on behalf of the Department to the Commission did not make it entirely clear that what was in reality being challenged was the jurisdiction of the Commission to conduct an inquiry into the matter referred to it by the Acting Commissioner so far as such matter involved the Commonwealth. The application made to the Commission was framed in procedural terms and, as a procedural application, was, in my view, appropriately rejected by Mr Innes. In all of the circumstances I conclude that the appropriate relief in this matter is a declaration that the referral by the Acting Commissioner, by her delegate, to the Commission of the matter to which the alleged unlawful acts referred to in the memorandum dated 8 May 1996 signed by Ms Elliott relate did not give rise to jurisdiction in the Commission to hold an inquiry into any complaint by Ms Elliott against the Commonwealth or any officer, employee or agent of the Commonwealth. I so declare. I will hear counsel on the question of costs. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate: Dated: 17 December 1998 Counsel for the Applicant: Ms S. Winters

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Third Respondent: W.G. McNally & Co

Date of Hearing: 19 October 1998

Date of Judgment: 17 December 1998