14 She went on to discuss a decision in the Human Rights and Equal Opportunity Commission, Garity v Commonwealth Bank of Australia [1999] HREOCA 2. That was a decision of Commissioner the Hon Robert Nettlefold, a former judge of this Court. In conducting an inquiry relating to a complaint of discrimination on the basis of disability, he took into account evidence of conduct that was said to have occurred before the applicable Commonwealth statute commenced. He did so on the basis that it was circumstantial evidence that was potentially relevant to the allegations of discrimination after the relevant legislation commenced. After discussing that case, the Commissioner said the following:

"Taking into account Commissioner Nettlefold's decision in the Garity case, I have determined that the alleged discrimination and prohibited conduct that took place from August 2018 to February 2019, should be included to provide the investigation with an understanding of the history of Mr Well's [sic] relationship with Correctional health Services."

15 That paragraph related to the complainant's first period of imprisonment. It was open to the Commissioner to accept only the parts of the complaint relating to the 12 months before its making, or to accept only the parts of the complaint relating to the second period of imprisonment, which commenced on 15 November 2019. She did not purport to take either of those courses. She said only that the alleged discrimination and prohibited conduct during the first period of imprisonment "should be included". She must have meant that she was accepting the complaint, insofar as it related to discrimination and prohibited conduct, in respect of the period from August 2018 onwards.

16 I therefore reject the submission made by counsel for the Attorney-General to the effect that the Commissioner did not accept the part of the complaint that related to the first period of imprisonment, but only treated evidence of events during that period as circumstantial evidence potentially relevant to allegations relating to the second period of imprisonment.

17 The Commissioner's decision did not contain anything as to whether or not it was reasonable to accept the part of the complaint that related to discrimination and prohibited conduct said to have occurred more than 12 months before it was made. She referred to s 63(1), which imposes the 12-month time limit, but did not refer to s 63(2), which required her to be satisfied that it was reasonable to do so before accepting any part of the complaint relating to events that occurred more than 12 months before it was made.

18 Because s 67(b) of the Act obliged the Commissioner to provide the respondent to the complaint with reasons for accepting it, it must be assumed that the written reasons provided by her fully stated her reasons for the acceptance: Minister for Immigration and Ethnic Affairs v Tavelli [1990] FCA 169; (1990) 23 FCR 162 at 179; Singh v Minister for Immigration and Border Protection [2018] FCAFC 184, per Colvin J, with whom Kenny and Bromberg JJ agreed, at [12].

Section 63(2) and jurisdictional fact-finding

19 Before accepting any part of the complaint to which s 63(2) applied, the Commissioner was obliged by that subsection to make a finding as to whether or not it was reasonable to do so. The power to accept for investigation a part of a complaint relating to discrimination or prohibited conduct alleged to have taken place more than 12 months before the making of that complaint was expressly conditioned upon the formation of a state of mind by the decision-maker, namely satisfaction that that acceptance was reasonable. The existence of that state of mind therefore itself constituted a jurisdictional fact: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 per Gummow J at [130]-[137]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 211 CLR 540 per Gummow and Hayne JJ at [183]; Plaintiff M70/2011 v Minister for Immigration and Citizenship ("The Malaysian Declaration Case") [2011] HCA 32, 244 CLR 144 per French CJ at [57]. The exercise of the s 63(2) power by the Commissioner was conditioned upon her making a finding as to a jurisdictional fact, but she made no such finding. It follows that her decision, to the extent that it related to discrimination and prohibited conduct alleged to have occurred more than 12 months before the making of the complaint, was invalid: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [37]- [38].

20 As the Commissioner's decision was invalid in part, it follows that this application must succeed, at least in relation to allegations of discrimination and prohibited conduct occurring more than 12 months before the making of the complaint.

21 The Act does not contain a general provision requiring the Commissioner to observe the common law rules of natural justice or procedural fairness. However it contains a number of specific provisions that require procedural fairness in certain respects. Under s 64(3), the Commissioner is required to notify a complainant of the decision whether to accept or reject a complaint as soon as practicable. If a complaint is rejected, s 65(1) requires the Commissioner to provide the complainant with a written statement of the reasons for its rejection, and inform the complainant that the rejection may be reviewed by the Tribunal. If the complaint is amended, s 65A(2) requires the Commissioner to give each party to the complaint written notice of the amendment and a copy of the amendment or the complaint as amended. If the Commissioner accepts a complaint, s 67 requires her within 10 days of accepting it, to notify the respondent of the acceptance, provide the respondent with reasons for the acceptance, and give the respondent a copy of the complaint and a summary of it. On the completion of an investigation of a complaint, s 71(2) requires the Commissioner or an authorised person, as soon as practicable, to notify both the complainant and the respondent as to whether it has been determined that the complaint is dismissed, is to proceed to conciliation, or is to proceed to an inquiry.

22 The Commissioner is an administrative decision-maker. As a general rule, administrative decision-makers are obliged to comply with the common law rules of procedural fairness. As Brennan J (as he then was) put it in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628:

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise."

23 In Annetts v McCann (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ said, at 598:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

24 More recently, in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29, 259 CLR 180, the High Court said, at [75]:

"... it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme."

25 Counsel for the Attorney-General accepted that at some stage the respondent to a complaint must be afforded procedural fairness, but she made a submission to the effect that the Act provides for a multi-stage investigatory, conciliation and inquiry process and that, at least when s 63 does not apply, the common law duty of procedural fairness does not require the Commissioner to notify the respondent to a complaint of its making unless and until a decision was made to accept the complaint for investigation. She relied on a comment in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, in which Mason CJ, Dawson, Toohey and Gaudron JJ said, at 578:

"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'."

26 When no question arises as to the time limit imposed by s 63(1), I accept that the common law duty of procedural fairness does not require the Commissioner to notify a respondent before deciding whether to accept or reject a complaint. At that stage of the proceedings in relation to a complaint, the Commissioner acts as a gatekeeper, and is empowered to filter out complaints that are obviously without merit. As I have said, s 64(1) empowers the Commissioner to reject a complaint at that stage on a variety of grounds. A complaint may be rejected if it is "trivial, vexatious, misconceived or lacking in substance": s 64(1)(a). It may be rejected if it "does not relate to discrimination or prohibited conduct": s 64(1)(b). It may be rejected if the complainant or someone else has commenced proceedings about the same events or subject matter in some other commission, court or tribunal where appropriate remedies are available: s 64(1)(c) and (d). It may be rejected if a more appropriate remedy is reasonably available: s 64(1)(e). It may be rejected if the subject matter has already been dealt with by the Commissioner or some other authority or could be: s 64(1)(f) and (g). Essentially the Commissioner is empowered to reject a complaint in various circumstances when it would be inappropriate or unnecessary to trouble a respondent by inviting a response to the complaint.

27 Once a complaint has been accepted, however, the Act expressly provides opportunities for a respondent to put forward his, her or its case at the investigation stage, the conciliation stage, and the inquiry stage. When no question of a s 63(1) time limit arises, the requirements of natural justice are satisfied by the provision of procedural fairness at each of those stages.

28 However different considerations apply when a complaint contains allegations of discrimination or prohibited conduct that is said to have occurred, or might have occurred, more than 12 months before the receipt of the complaint by the Commissioner.

29 Pearce J made some comments about s 63 and procedural fairness in Abblitt v Anti-Discrimination Commissioner [2016] TASSC 12, 24 Tas R 187. His comments were obiter, since he concluded that the conduct complained of was not conduct to which the Act applied. He said the following at [25]-[26]:

"[25] Section 63 is a curious provision. It is at once to be noted that subs (2) is directed to the acceptance of the complaint, not to the investigation or to the later decision that a complaint be dismissed or proceed to conciliation or inquiry. It follows that, in order to accept a complaint, the Commissioner must, by then, have determined that either the conduct complained of occurred within the previous 12 months, or that it was reasonable to accept a complaint about conduct occurring outside that period. I note in passing that the lapse of the time limit imposed by s 63 is not one of the grounds for rejection of the complaint specified in s 64. However, it must follow that if the Commissioner determines that the complaint is out of time, and is not satisfied that it is reasonable to accept the complaint, then it must be rejected. The Commissioner must either accept or reject a complaint within 42 days of its receipt: s 63(2).

[26] The Tribunal ... considered the matters relevant to the power to accept a complaint out of time in Coleman v Gourlay [2006] TASADT 3. ... That issue could not be fairly considered unless the respondent to an application which is, or may be, out of time is given a fair opportunity to be heard. Faced with the 42 day time limit, the making of a determination to accept a complaint out of time while extending procedural fairness to a respondent is an awkward task. The Act imposes no obligation on the Commissioner to notify the respondent to a complaint until after the complaint has been accepted, at which time the obligation arises to, within 10 days, notify the respondent of that acceptance, provide the respondent with reasons for accepting the complaint, and give the respondent a copy of the complaint and a summary of the complaint. Thus, unless the Commissioner takes some additional step, a person against whom a complaint is made may not even be aware of the complaint until after the decision to accept it out of time is made."

30 When a complaint relates to conduct or events that occurred more than 12 months before its receipt by the Commissioner, the prima facie position is that the respondent to the complaint is immune from the procedures of investigation, conciliation and inquiry under the Act. In particular, the respondent is immune from any risk of being ordered to pay compensation or a fine under s 89(1)(d) or (e). The Commissioner has the power to make a decision under s 63(2) that is adverse to the interests of the respondent by accepting a complaint relating to events or conduct more than 12 months before its receipt. That power may only be exercised if the Commissioner is satisfied that it is reasonable to accept the complaint. If there is any doubt as to when the alleged conduct occurred, the Commissioner has the power to make a finding that it occurred during the 12 months preceding the receipt of the complaint. Findings as to reasonableness or timing can prejudice the interests of a respondent by, amongst other things, exposing the respondent to the risk of a compensation order or a fine. The Act does not contain any "plain words of necessary intendment" that exclude the common law rules of procedural fairness. It must follow that whenever the Commissioner has to make a decision whether the acceptance of a complaint pursuant to s 63(2) is reasonable, or a decision whether the alleged conduct occurred less than 12 months before the receipt of the complaint, there exists a common law obligation to afford procedural fairness to the respondent by giving notice of the complaint and inviting submissions as to the relevant factual issues, namely reasonableness and, if it is an issue, timing. That, of course, is what Pearce J said in Abblitt.

31 The Commissioner did not advise the Tasmanian Health Service of the receipt of the complaint in this case. She did not invite submissions as to the issue of reasonableness that arose because of s 63(2). She thereby erred in law in failing to comply with her duty to afford procedural fairness.

32 I acknowledge that it will be very inconvenient for the Commissioner to afford procedural fairness to some respondents in cases where s 63(2) is relevant. For one thing, s 64(2) obliges the Commissioner to decide whether to accept a complaint or reject it within 42 days after its receipt. Also when the Commissioner invites submissions as to the reasonableness issue, some respondents might have difficulty understanding that they are not being asked to respond to the complainant's allegations, but to make submissions as to whether it would be reasonable for the Commissioner to investigate a complaint (or part of a complaint) that is more than 12 months old. However inconvenient the consequences may be, it is clear that the Commissioner has a common law duty of procedural fairness that must be observed whenever it is necessary to decide whether it is reasonable to accept a complaint to which s 63 applies.

33 Counsel for the Attorney-General made a submission to the effect that the 12-month time limit imposed by s 63(1) does not apply in relation to a course of conduct that commences more than 12 months before a complaint is received, and continues into the 12- month period before the complaint is received. I disagree. There is no express provision to that effect in the Act. The ordinary meaning of s 63(1) is quite clear. It says that a complaint "is to be made within 12 months after the alleged discrimination or prohibited conduct took place". If there is a continuing course of discrimination or prohibited conduct, and some of it falls outside the 12-month period, then the complaint, in part, does not relate to conduct within the 12-month period. By virtue of s 59(A), "complaint" includes part of a complaint. Section 63(2) must therefore be read as empowering the Commissioner to accept part of a complaint if the 12-month time limitation has expired in respect of that part, but only "if satisfied that it is reasonable to do so". The submission of counsel for the Attorney-General is inconsistent with the ordinary literal meaning of s 63.

34 In the light of Garity's case, it is clear that when a complaint relates in part to alleged conduct in respect of which time has expired, acceptance of the complaint only in respect of the more recent conduct does not prevent investigation of the earlier conduct for evidentiary purposes. The consequence of partial acceptance of a complaint in that situation is that the interests of the respondent are not imperilled in relation to the earlier conduct. For example, the respondent is not exposed to any risk of a compensation order or a fine in relation to the earlier conduct. Such a result is consistent with the objects and purposes of s 63. The section seeks to strike a balance between the promotion of the interests of complainants and the protection of respondents against unreasonable exposure to stale complaints.

35 Section 63 applies to continuing aspects of discrimination or prohibited conduct in the same way that limitation statutes apply to continuing common law torts. In cases of continuing nuisances and continuing trespasses, a fresh cause of action arises every day, and a plaintiff may recover damages in respect of causes of action that are not statute barred, but not in respect of those that are statute barred: Battishill v Reed [1861] EngR 314; (1856) 18 CB 696 at 714, 717-718, 138 ER 1544 at 1551-1552; Darley Main Colliery Co v Mitchell [1886] UKLawRpAC 2; (1886) 11 App Cas 127 at 132-133; Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 at 262-263; D'Aquino v Trovatello [2015] VSCA 78, 47 VR 31 at [56]-[60].

36 It is true that a member of the Anti-Discrimination Tribunal held in Costello v Tasmania Police (above) that the time limit imposed by s 63(1) did not apply to a continuing course of conduct which began more than 12 months before the receipt of a complaint and continued within the 12-month period before its receipt. However that Tribunal member did not state any reasons for that view.

37 Counsel for the Attorney-General referred me to two cases from New South Wales concerning s 88(3) and (4) of the Anti-Discrimination Act 1977 (NSW). Those provisions required a complaint to be lodged within six months after the date on which a contravention of the legislation was alleged to have been committed, but permitted acceptance more than six months thereafter "on good cause being shown". The first of the two cases was Najdovska v Australian Iron and Steel Pty Ltd (1985) EOC 92-140, a decision of the Equal Opportunity Tribunal (NSW). At 76,385 the Tribunal held that a complaint could be lodged and accepted without resort to the "good cause" provision at any time within six months after the course of conduct had terminated.

38 However the New South Wales Administrative Decisions Tribunal Appeal Panel took the opposite view in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [77]-[87]. It concluded that, unless there had been an extension of time, any part of a continuing contravention occurring earlier than six months before the complaint was lodged could not form part of the complaint.

39 Counsel for the Attorney-General referred me to s 108(1) of the Act. That subsection reads as follows:

"Application of Act

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

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

40 That provision certainty implies that, for the purposes of the Act, discrimination or prohibited conduct can start on one day, continue for a period, and conclude at a later date. However it does not imply that continuing discrimination or continuing prohibited conduct is not subject to s 63.

41 The words of s 63 must be given their ordinary meaning. It follows that the Commissioner was not empowered to accept the part of the complaint that related to part of a course of conduct occurring prior to 27 May 2020 unless she made a finding that it was reasonable to do so. As she made a decision accepting the whole complaint without making such a finding, she erred in law.

42 For these reasons the decision under review is set aside in part, namely to the extent that it relates to discrimination or prohibited conduct alleged to have occurred before 27 May 2020, and the matter is referred to the Commissioner for further consideration, with a direction that she is to determine whether it is reasonable to accept the part of the complaint that relates to discrimination or prohibited conduct alleged to have occurred before 27 May 2020 after affording procedural fairness to the Tasmanian Health Service.