[2009] TASSC 48

HEARING DATE: (Written submissions) 12 March 2009

Administrative Law - Judicial review - Reviewable decisions and conduct - Decisions to which judicial review legislation applies - Decisions of an administrative character - Decision of Anti-Discrimination Tribunal upon review of Commissioner's decision to dismiss complaint one of an administrative character.

Anti-Discrimination Act 1998 (Tas), s72(1).

Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309, applied.

Administrative Law - Judicial review - Reviewable decisions and conduct - Review of particular decisions - Review by Anti-Discrimination Tribunal of Commissioner's decision to dismiss a complaint - Ruling by Tribunal that it confined to material before the Commissioner with fresh evidence permitted in limited circumstances - Whether ruling wrong in law.

Anti-Discrimination Act 1998 (Tas), s72(1).

Von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9, not followed.

Human Rights - Discrimination - Tribunals, Commissions and other authorities - Tasmania - Anti-Discrimination Tribunal - Review of Commissioner's decision to dismiss a complaint - Tribunal not confined to material before the Commissioner.

Anti-Discrimination Act 1998 (Tas), s72(1).

Von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9, not followed.

Anti-Discrimination Tribunal: (Notice of Submission)

Judgment Number: [2009] TASSC 48

STATE OF TASMANIA v ANTI-DISCRIMINATION TRIBUNAL,

1 This is an application under the Judicial Review Act 2000 ("the JRA"), s18, for an order of review relating to conduct engaged in for the purpose of making a decision to which that Act applies. The Anti-Discrimination Tribunal is embarked on a review of a decision by the Anti-Discrimination Commissioner to dismiss a complaint of victimisation. In the course of that review, the Tribunal has determined that in limited circumstances, it has a discretion to receive material additional to that which was before the Commissioner.

2 The application raises three issues, the first two of which are preliminary ones about which there is no contention, but I will need to address them. The issues are:

•

whether the ruling of the Tribunal is reviewable under the JRA;

•

whether the applicant is entitled to relief at this stage of the proceedings before the Tribunal;

•

the nature of the review carried out by the Tribunal; in particular, whether in conducting such a review the Tribunal is confined to the material which was before the Commissioner.

3 Dr Stephen Bennett made a complaint to the Commissioner of victimisation on the part of Dr George Cerchez and the Department of Health and Human Services. Victimisation is dealt with in the Anti-Discrimination Act 1998 ("the ADA"), s18, and, as defined in that section, is prohibited conduct. Complaints of discrimination and of prohibited conduct may be made to the Commissioner pursuant to the ADA, s60. Section 64(1) enables the Commissioner to reject any complaint if:

"(a) in the opinion of the Commissioner, it is trivial, vexatious, misconceived or lacking in substance; or

(b) the complaint does not relate to discrimination or prohibited conduct; or

(c) the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or

(d) a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or

(e) in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or

(f) the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or

(g) in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority."

4 If a complaint is accepted, the matter is then investigated. Relevantly, s71 provides as follows:

"71 Completion of investigation

(1) The Commissioner or an authorised person, on the completion of an investigation of a complaint, is to determine that the complaint -

(a) is dismissed, on any ground referred to in section 64(1)(a), (b), (c), (d) or (f); or

(2) The Commissioner or authorised person, as soon as practicable -

(b) provide a written statement of the reasons for the dismissal of a complaint.

(3) A complainant whose complaint is dismissed may apply to the Tribunal for the dismissal to be reviewed.

(4) ...

(5) If a complainant does not make an application within the period specified in subsection (4), the complaint lapses."

5 In Dr Bennett's case, the complaint was accepted and investigated, but dismissed. It is not clear from the material on which ground referred to in s64(1) the complaint was dismissed, but it is of no consequence in these proceedings. Dr Bennett, as he was entitled to do by virtue of the ADA, s71(3), applied to the Tribunal for the dismissal to be reviewed. The Tribunal conducting the review was constituted by a single member and the review process seems to have been thus far conducted by way of "preliminary hearings" at which Dr Bennett appeared for himself, and the respondents to the complaint were represented by separate counsel. At the first such hearing, Dr Bennett raised the issue of the Tribunal allowing documents "to be admitted at the hearing", additional to those which the Commissioner had when investigating the complaint. At a second preliminary hearing, Dr Bennett's application was opposed and submissions were made by all parties. The decision on the point was reserved.

6 The Tribunal later ruled that it had "a discretion to admit fresh material in limited circumstances ...". In doing so the Tribunal expressly followed earlier Tribunal rulings, and in particular, the judgment of Evans J in Von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9, about which I will say more later. It is not entirely clear whether the Tribunal intended to use the expression "fresh material" in its strict legal sense; that is, evidence which was not available in the original proceedings nor could have been discovered with the exercise of reasonable diligence. In any event, the "limited circumstances" referred to by the Tribunal were said to be those relating to evidence in judicial review proceedings as detailed by Weinberg J in Australian Retailers Association v Reserve Bank [2005] FCA 1707; (2005) 148 FCR 446 at 564 - 565 [454] - 458]. Upon making the ruling, the Tribunal said that the status of the documents in question would need to be clarified before the matter could proceed. This application was filed and the Tribunal has agreed not to continue with the review process in the meantime.

7 Before this Court, the applicant contends that it is a "person aggrieved by conduct engaged in for the purposes of making a decision" within the meaning of the JRA, s7(2). It asserts that the Tribunal erred in law in that there is no discretion to receive any additional material, and that the Tribunal is strictly confined to the material considered by the Commissioner. The Tribunal and Drs Bennett and Cherchez have all submitted to the Court's jurisdiction. In those circumstances, the Attorney-General instructed the Solicitor-General to act as amicus curiae. I am grateful for the assistance.

8 The JRA, s18, relevantly provides as follows:

"18 Application for review of conduct related to making of decision

(1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by that person or by another person), a person who is aggrieved by the conduct may apply to the Court for an order of review relating to the conduct.

(2) An application may be made on any one or more of the following grounds:

...

(i) has been, is being, or is likely to be, committed in the course of the conduct; or

(ii) is likely to be committed in the making of the proposed decision;

9 The phrase "decision to which this Act applies" is defined in the JRA, s4(1), as: "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". For present purposes, it may be taken that the Tribunal was engaged in, or proposed to engage in, conduct for the purpose of making a decision; the question is whether the decision in relation to a review under the ADA, s72, is a decision to which the JRA applies. That requires consideration of two points; first, whether such a decision is one of "an administrative character", and second, whether such a decision is made "under an enactment".

Is the decision made upon review one of "an administrative character"?

10 This question is not only relevant to whether judicial review is available, but also to the substantive issue. As will be seen, assuming judicial review is available, the character of the review function is important in assessing to what material the Tribunal is to have regard. As to the question in this context, the "instability of the distinctions" to be drawn between administrative acts and those of a legislative or judicial nature was noted by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 123 [63]. In Federal Airports Corporation v Aerolineas Argentinas [1997] FCA 723; (1996) 76 FCR 582, Lehane J said at 591 that "General tests will frequently provide no clear answers", and that there is always "a need to examine closely the particular provisions and the particular circumstances".

11 In Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309, Blow J held that the decision of the Anti-Discrimination Tribunal upon a review of a rejection by the Commissioner of a complaint, was one of an administrative character within the meaning of the JRA. The complaint alleged unlawful discrimination by a prospective employer. At 313 [12], his Honour expressed the view that there were very few factors that weighed in favour of the decision being regarded as one of a judicial character. At 314 [14] - [15], his Honour said:

"The proceedings before the Tribunal were not proceedings inter partes. They did not involve the review of a decision that directly affected the prospective employer. Under the Anti-Discrimination Act, s16(1) [sic 64(1)], the power to reject a complaint can be exercised by the Commissioner on grounds that have nothing to do with lack of merit, including the availability of similar remedies in a commission, court or tribunal in which proceedings have been commenced; satisfaction that the subject matter of a complaint may be adequately dealt with by such a body; the existence of a more appropriate remedy that is reasonably available; the complaint having already been dealt with by another authority; or an opinion that the complaint may be more effectively or conveniently dealt with by another authority.

A decision by the Commissioner to reject a complaint is no more than a decision not to conduct an investigation. It is an excellent example of a decision of an administrative character. In light of the factors that I have referred to, I see no reason to regard any differently a decision by the Tribunal that it is satisfied that the Commissioner made a correct decision in rejecting a complaint. ..."

12 Should this reasoning be applied to the review of a dismissal of a complaint, as distinct from a rejection? A weighty indicator of administrative, as distinct from judicial, action is that it "will create new rights and obligations and not simply determine (as a court might do) controversies over past suggested contraventions ...", or will provide a basis for determining what rights and obligations are created in the future; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 per Kirby J at 561 [41] - [42]. This had been the approach taken in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2) [2004] TASSC 28, in which the distinction between orders of a judicial nature and those of an administrative character, had to be examined in the context of the Industrial Relations Act 1984. After reviewing a number of authorities, Blow J treated the essential distinctive factor as being whether the relevant power was one to create new rights and obligations, in which case a decision made pursuant to that power would be one of an administrative character

13 The exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation, or if that is inappropriate for any of the reasons set out in the ADA, s78(1), to be the subject of an inquiry by the Tribunal. A complaint may be rejected at the initial stage for any of the reasons set out in s64(1). Of the matters set out in s64(1)(a), three relate "to the insufficiency or to the absence of merit of the factual basis", whilst "misconceived" means "founded upon a wrong idea as to the facts."; Langley v Niland (1981) 2 NSWLR 104 at 107. (If a complaint is accepted, s67 requires the Commissioner to notify "the respondent" of the reasons for accepting the complaint and provide a summary, or with the consent of the complainant, a copy of the complaint. I should note that a respondent to a complaint accepted for investigation has no right to a review of that decision.) On the other hand, it may be that on the face of a complaint the Commissioner is not able to make a proper decision to reject it, and it is accepted for investigation. That investigation may reveal that it is "trivial, vexatious, misconceived or lacking in substance", or that for one of the other reasons specified in s64(1)(b), (c), (d) or (f), it should be dismissed. (If not dismissed, s71(1) requires that the complaint proceed to conciliation or to an inquiry, that choice to be determined by the Commissioner.)

14 It might be thought that once accepted and investigated, a "dismissal" would have more to do with the merits than any other consideration, but the ADA makes specific provision for the dismissal of a complaint on grounds that have nothing to do with lack of merit. It follows that an investigation is still part of the screening process, and I see nothing which would make a dismissal by the Commissioner conceptually different from a rejection, so as to make the decision of the Tribunal on a review of a dismissal, one of a judicial character as distinct from one of an administrative character. The Commissioner's decision to dismiss a complaint is a decision that the matter, for one reason or another, is not to be conciliated or made the subject of an inquiry by the Tribunal.

15 Further, I think it is clear that a decision upon a review has the required effect in relation to rights or obligations. Section 60 creates the rights of certain persons and organisations to make a complaint under the ADA. Provision is made in s62 for a formal complaint. That complaint must be assessed by the Commissioner. The result of a review of the Commissioner's decision as to a complaint may be the lapsing of that complaint - s72(1), the investigation of the complaint - s72(2), or the referral of the complaint for inquiry - s72(3). By virtue of s73, a complainant whose complaint has lapsed, is not entitled to make another complaint in relation to the same matter. A complaint may ultimately be the subject of an inquiry by the Tribunal, in which case persons may be required, on pain of penalty for non-compliance, to provide information and give evidence; ss80(2) and 87(2). If the complaint is substantiated, the Tribunal may, by virtue of s89, make a wide range of remedial and punitive orders including compensation, re-employment and fines. I also note that s100 provides for appeals to this Court in respect of certain orders made after an inquiry, but not in respect of a review.

16 It follows that I am satisfied that the decision of the Tribunal on the review of the dismissal of a complaint by the Commissioner, is a decision of an administrative character within the meaning of the JRA.

Is a decision made upon review one "made under an enactment"?

17 In Griffith University v Tang (above), Gummow, Callinan and Heydon JJ said at 130 [89]:

"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice" - [my emphasis].

18 As to the first criterion, the ADA, s13 makes it a function of the Tribunal to review decisions of the Commissioner relating to rejections and dismissals of complaints. That in itself would seem to establish that a decision upon review is authorised by the enactment. If there be any need to go further, s72 makes provision for various outcomes depending on whether the Tribunal is or is not satisfied as to the correctness of the Commissioner's decision "on reviewing" the matter. That section is in the following terms:

"72 Review of rejection or dismissal

(1) If, on reviewing the rejection or dismissal of a complaint, the Tribunal is satisfied that the Commissioner made a correct decision in rejecting or dismissing the complaint, the complaint lapses.

(2) If, on reviewing the rejection of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in rejecting the complaint, the Tribunal is to refer the complaint back to the Commissioner for investigation.

(3) If, on reviewing the dismissal of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4."

19 A legislative provision which operates upon a specified determination of a designated person or body can readily be construed as impliedly conferring upon that person or body the statutory function of making the particular determination; Minister for Immigration & Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 per Mason, Deane and Dawson JJ at 299 - 300. As to the second criterion set out in the Griffith University case (above), it is clear from my earlier analysis that a decision upon a review has the required effect in relation to rights or obligations. For those reasons I conclude that a decision of the Tribunal upon a review of a rejection or dismissal is a decision made under the ADA, and hence made under an enactment within the meaning of the JRA.

Is the ruling of the Tribunal reviewable conduct?

20 The relief sought by the applicant is an order restraining the Tribunal from acting upon the decision which it has made as to the scope of the review. In the ground on which that relief is sought, it is the decision which itself is said to represent conduct engaged in by the Tribunal for the purpose of making a decision under the provisions of the ADA, s72. However, in the applicant's submissions, when addressing the point of standing, it is variously said that the applicant is a person aggrieved by the decision, or aggrieved by conduct that is proposed to be engaged in by the Tribunal; "ie a decision to allow Dr Bennett to furnish further documents in the review". The submissions made on behalf of the Attorney-General also seem to proceed on the assumption that it is the decision itself which is the relevant conduct for the purposes of s18; that is, the Tribunal has engaged in relevant conduct by making a decision. For the reasons which follow, I think that the correct view of things is that the conduct which is properly the subject of the scrutiny is that of continuing the review on the basis of the ruling which has been made. In terms of the JRA, s18(1), the Tribunal proposes to engage in reviewable conduct.

21 Any present discussion about what constitutes a reviewable decision or reviewable conduct must start with the decision of the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At 335 - 336, Mason CJ considered the meaning of "decision". In essence, a reviewable decision is one provided for by or under a statute, which 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. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily amount to a reviewable decision, unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision might be accurately described as a decision under an enactment. A further essential quality is that it be a substantive determination.

"If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of 'conduct' than with the notion of 'decision under an enactment'."

23 In relation to reviewable conduct, at 341 - 342, his Honour said:

"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that 'decision' connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of 'conduct' in the statutory scheme of things becomes reasonably clear. In its setting in [JRA, s18] the word 'conduct' points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. ... It would be strange indeed if 'conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

Accordingly, there is a clear distinction between a 'decision' and 'conduct' engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge."

See also the observations of Crawford J (as he then was) in Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97; (2005) 15 Tas R 158 at 168 [29] - 170 - [32].

24 There may be some force in the proposition that the ruling of the Tribunal, to the extent that it determined the scope of the review, was in reality a reviewable "decision" in that it resolved an important preliminary point of substance, and was final or operative and determinative in a practical sense; Federal Commissioner of Taxation v McMahon [1997] FCA 1087; (1997) 149 ALR 159 at 160. However, as I have said, I think the better view is that the Tribunal in this case is proposing to engage in reviewable conduct.

Is it appropriate to grant relief at this stage?

25 This Court must dismiss an application for review if review of the matter is available at the end of the initial proceeding, the Court considers that it is desirable to dismiss the application in order to avoid interference with the general and orderly conduct of the initial proceeding, and if the Court is satisfied, having regard to the interests of justice, that it should dismiss the application; JRA, s13. The Court is also empowered to stay or dismiss an application for review where it would be inappropriate to allow it to continue; JRA, s38(1)(a)(i). The general rule is that delays consequent upon the fragmentation of proceedings are so disadvantageous that they should be avoided unless the grant of relief can clearly be seen to produce a discernible benefit; Australian Broadcasting Tribunal v Bond (above) per Mason CJ at 339; Port of Devonport Corporation Pty Ltd v Abey (above) per Evans J at 175 [48].

26 Counsel for the Attorney-General supports the applicant's position as to this aspect of the application. The discernible benefit is that of avoiding the possibility that the whole of the review is conducted on a basis which is wrong in law, in which event a subsequent application for review would almost inevitably require the Tribunal, differently constituted, to re-determine the matter. An additional factor is that the substantive issue is important and of significance for similar cases; Secretary, Department of Employment, Education & Youth Affairs v Allen [1998] FCA 165. Although this application does fragment the proceedings, they were adjourned in any event, so as to enable inquiries to be made as to the status of the documents the subject of Dr Bennett's application to the Tribunal. I accept the proposition that the timely clarification of the powers and functions of the Tribunal, prior to the final determination in the particular proceedings, would produce a discernible benefit. I am not satisfied that it would be appropriate to summarily dismiss the application by virtue of the JRA, ss13 or 38(1), or on any other basis.

The nature of a review under the ADA, s72

1">27 The question of to what material the Tribunal is to have regard when conducting a review under s72, lies within the broader issue of the general nature of the review. The question is to be answered by looking closely at the relevant statutory provisions, with careful attention being paid to the particular language; Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286 per Kirby J at 295 [25], Hayne and Heydon JJ at 311 [92].

28 Most of the relevant provisions of the statutory scheme relating to the making of complaints, the assessment of them by the Commissioner, and the review process, have already been set out; in particular, s72. As has been shown, there is no provision which expressly deals with the nature of, or the manner in which, the review process is to be conducted. However, there are two additional provisions which should be noted:

"An Act to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to such discrimination and conduct".

•

s97, which is of general application, provides as follows:

"97 Information and documents

(1) The Tribunal, Commissioner or an authorised person may require any person to provide specified information or produce specified documents that the Tribunal, Commissioner or authorised person believes may be relevant to the complaint.

(2) ...

(3) The Tribunal, Commissioner or authorised person may take and retain possession, or take copies, of any document produced under subsection (1).

(4) A person, without reasonable excuse, must not fail to provide any information or produce any document required under subsection (1).

Penalty:

29 The proper approach to construing the provisions of the ADA was identified by Cox CJ in Commissioner of Police v Reid [2000] TASSC 181; (2000) 9 Tas R 418 at 425 - 426 [7]. His Honour said:

"This is beneficial and remedial legislation concerned with human rights.

'In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose.' (Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, per Mason CJ and Gaudron J at 359.)

See also Qantas Airways Ltd v Christie (1998) 193 CLR 280, where Kirby J said at 332:

'Remedial legislation, designed to achieve the high public purpose of upholding equal opportunity, should be construed beneficially and not narrowly. Any other approach risks frustrating the will of Parliament.'

and I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1, where Brennan CJ and McHugh J said at 15:

'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'."

30 As is apparent, that approach is not confined to the resolution of ambiguities in wording. It extends to the general approach to the interpretation of a relevant Act, and requires the adoption of the construction most favourable to promoting its evident purpose and underlying policy; Zangzinchai v Millanta [1994] FCA 1361; (1994) 53 FCR 35, per Burchett J at 42 - 43 and the authorities cited. In relation to the interpretation of a provision of an Act, the Acts Interpretation Act 1931, s8A, also calls for an interpretation that promotes the purpose or object of the Act, to one that does not.

31 In Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, Mason CJ, Brennan and Toohey JJ noted that:

"... the expression 'review' is commonly used in the context of judicial control of administrative action and in the context of comprehensive administrative review by an administrative tribunal of administrative decisions. But what emerges from the judicial decisions and, for that matter, from statutes is that 'review' has no settled pre-determined meaning; it takes its meaning from the context in which it appears."

32 What is meant by the use in a statute of the term "review", depends on the context in which it appears. Even in the case of an administrative review, "review" may mean a full merits review involving a process or hearing de novo, or it may mean a process which is confined in some way; for example, in scope (questions of law or fact), or as to the material to be considered. In Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52, Burchett J considered the nature of a review carried out by the Review Tribunal established by the Telecommunications Act 1975 (Cth) and which dealt with employment issues. At 63 his Honour noted the first meaning given of the word "review" in the Shorter Oxford English Dictionary as being "the act of looking over something (again), with a view to correction or improvement", but with the meaning in law also given as "Revision of a sentence, etc, by some other court or authority." His Honour continued:

"It may be conceded that, in an appropriate context, the word 'review' could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by 'application', to administrative action, provision for which is to be made by regulations. In such a setting a legal signification is suggested. And the tide of modern legislation, in the area of administrative decisions, has for some time flowed strongly in the direction of fuller rights of review."

33 On appeal, ATC v Colpitts [1986] FCA 257; (1986) 12 FCR 395, Toohey J (with whom Fisher J agreed) accepted those general considerations mentioned by Burchett J and said:

"But in the end, one is driven to find the meaning of 'review' ... from the section itself, seen in the context of the entire statute."

34 The applicant submits that Von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9 ("Von Stalheim v ADT") is authority for the proposition that the Tribunal's "review of a decision by the Commissioner to dismiss a complaint is an appeal stricto sensu and as such the Tribunal is limited to considering only that material that was before the Commissioner", and is thus to be interpreted as holding that no additional material at all is permitted. The Tribunal is said to have erred accordingly. The submission is that I too ought follow that decision, so construed. Alternatively, the applicant submits that if the correct interpretation of Von Stalheim v ADT is that the Tribunal had a limited capacity to receive material not before the Commissioner, then such capacity is strictly confined to "fresh evidence".

35 Counsel for the Attorney-General suggests that the exercise upon which the Tribunal is embarked is to determine whether or not the Commissioner's decision was correct, not merely in accordance with the material before the Commissioner, but in the objective or absolute sense. It is said that the conclusion to be drawn from the statutory scheme, that all available relevant material is to be considered by the Tribunal, "is inescapable". It is also submitted that Von Stalheim v ADT is contrary to an earlier decision of Evans J in Von Stalheim v Anti-Discrimination Commissioner [2005] TASSC 134 ("Von Stalheim v ADC"), and should not be followed.

36 In Von Stalheim v ADC an interim order had been sought that the Commissioner be restrained from making any decision on the investigation of a complaint, pending the hearing of an application for judicial review relating to that investigation. Evans J noted the court's discretion to dismiss or stay a premature application for relief under the JRA, noting the undesirability of applying to review a matter before it had been finally determined, except in exceptional circumstances. At [11] his Honour continued:

"The applicant submits that an exceptional circumstance that arises in his case is that if his complaint is dismissed without the further investigations he seeks, he will be denied the benefit of the results of those investigations should he find it necessary to seek a review of the dismissal of his complaint by the Tribunal. This submission ignores ADA, s97(1), which gives the Tribunal precisely the same power as the Commissioner has to obtain information and documents. Accordingly, in the event that the complaint is dismissed and the applicant seeks a review of that dismissal, it will be open to the applicant to persuade the Tribunal to pursue any further investigations that he contends are justified" - [my emphasis].

37 In Von Stalheim v ADT the proceedings consisted of an application for an order of review of the Tribunal's decision to confirm the Commissioner's rejection of a complaint. The parties had agreed that a finding of fact by the Tribunal was erroneous. His Honour observed that there was no point in ordering the reconsideration of the matter because of an error made in the decision-making process, if the reconsideration could only result in the same outcome, and continued:

13 Where, as here, the postulated reconsideration involves no more than a review of whether the initial decision-maker made a correct decision, it is not difficult for this Court to determine whether that review could only result in the same outcome. This is because the review involves no more than assessing whether Ms Little made a correct decision based on the material before her. The task to be undertaken by the Tribunal in reviewing Ms Little's decision does not involve investigating the complaint or eliciting further evidence. The review to be undertaken by the Tribunal is loosely analogous to judicial review proceedings or this Court's review of an order of justices under the Justices Act 1959, s107, or its equivalent. In both instances the ordinary rule is that material not before the decision-maker at the time of the making of the decision is not considered in the review of that decision; Australian Retail Association & Ors v Reserve Bank of Australia [2005] FCA 1707; (2006) 228 ALR 28 at par454, Cleaver v Powell [1979] Tas SR 134, Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 and Webster v White A58/1991" - [my emphasis].

38 Later, when dealing with the suggestion that the Tribunal's role on review was an inquisitorial one, his Honour said at [19] that the contention that matters not raised in the complaint but first raised in the review process should not be taken into account:

"... is based on the misconception that [the Tribunal] was, in effect, conducting a rehearing de novo with reference to the applicant's complaint. As I have explained in ..., this was not [the Tribunal's] function."

"[A]s I have already explained, the role of the Tribunal is not inquisitorial when conducting a review of a rejection or dismissal of a complaint under the ADA, s72. That provision requires the Tribunal to determine whether it 'is satisfied that the Commissioner made a correct decision'. In performing that role, the Tribunal is confined to the material before the Commissioner, as ordinarily the Commissioner cannot be said to be incorrect by reason of something that the Commissioner was not aware of" - [my emphasis].

39 For the reasons which follow, I conclude that the review carried out by the Tribunal under s72 is a "comprehensive" merits review, and is not confined to the material which was before the Commissioner. I think that the proper meaning of the scheme is that in carrying out a review, the Tribunal may take into account such material as it thinks fit.

40 To determine the meaning of "review" in s72, it needs to be examined in its context. As the long title to the ADA succinctly shows, the objectives of the Act are to prohibit certain conduct, to provide for the investigation of complaints about such conduct, and to make that conduct the subject of conciliation or of inquiry leading to remedial or punitive action. The investigative process is dealt with under Div2 of Pt6, which is completely separate from the conciliation and inquiry functions of the Tribunal, dealt with respectively under Divs3 and 4 of Pt6. As I have previously described, the investigative process involves an initial screening of the complaint which may lead to it being rejected or dismissed. (As earlier noted, a respondent to a complaint accepted for investigation has no right to a review of that decision.) In fact, decisions to reject or dismiss complaints may be made by the Commissioner without any further input from the complainant. Where there is no application for review, or where an unsuccessful review has been carried out, the complaint lapses and no further complaint can be made as to the same subject matter.

41 A review of a rejection would be ex parte, although that of a dismissal may be expected to involve the respondent. By virtue of s72(2), successful review of a rejection results in the complaint being investigated by the Commissioner. In the case of a dismissal, s72(3) provides that successful review results in an inquiry, but rather curiously, the option of conciliation is not given. In any event, it can be readily seen that a Tribunal review under s72 is an integral part of the investigative process, or perhaps more correctly, the preliminary process before dispute resolution. Given the nature of that process, I think it unlikely that it was intended that a review of decisions to reject or dismiss would be restricted to the material before the Commissioner to the exclusion of further material, however cogent, which the complainant may wish to put forward in response to the rejection or dismissal. Such an interpretation does not in my view, accord with the remedial nature of the legislation, or promote its objects.

42 Moreover, I have already demonstrated that the review process is one of an administrative character. That discussion is also relevant here. A complainant has a right to a review. As to the scope of the review and the nature of the task, there are no prescribed grounds of review and there is no requirement that the Tribunal find any error of fact or law, or irrationality or unreasonableness, or any other ground upon which to intervene. If limitations on the scope or nature of the review had been intended, it might be thought that they would have been expressed. Under the terms of s72, the Tribunal is only concerned with whether or not it is satisfied "that the Commissioner made a correct decision". On those bases, the question for the Tribunal is what decision ought to have been made, and the Tribunal has to address the same issues as did the Commissioner. In Shi v Migration Agents Registration Authority (above) - a case of administrative review - Kiefel J said at 327 [140] that, "A 'correct' decision, in the context of review, might be taken to be rightly made, in the proper sense; Drake v Minister for Immigration (1979) 46 FLR 409 at 431 - 432 per Smithers J". I take "in the proper sense" to mean in an objective or absolute sense.

43 In relation to the review process, the ADA, s97 enables the Tribunal, upon a review, to require the provision of any information or the production of any documents. Failure to comply with such a requirement is an offence. The obvious purpose of that power is to equip the Tribunal with the means to make an independent and objective assessment of the issue; Drake v Minister for Immigration (1979) 46 FLR 409 per Smithers J at 430. The existence of the power is a clear indication that the Tribunal is not restricted to the material before the Commissioner.

44 The outcome of a review is determined by s72 in its own terms. Section 71(1) effects the lapsing of the complaint where the Tribunal is satisfied of the correctness of a rejection or dismissal. With the exception that conciliation is not available in the case of a successful review of a dismissal, the section otherwise requires the Tribunal to do the things which would have occurred by the operation of the statute if the Commissioner's decision had been the correct one; s72(2) and (3). The Tribunal has no discretion to exercise as to the disposition of the matter. It follows that the decision of the Tribunal becomes that of the Commissioner. (This is subject to the exception I have noted, but I do not think that to be of any consequence.) For those reasons, the Tribunal is squarely in the position of the original decision-maker. This is important. In Shi's case (above) Kirby J, at 299 in relation to the Administrative Appeals Tribunal (Cth), noted:

•

its power to make a decision in substitution for the decision set aside;

•

that such power may be exercised a considerable time after the original decision;

•

the obvious purpose of having it 'step into the shoes' of the primary decision-maker, so as to make the decision that ought to have been made 'on the merits'.

45 At 299 - 300 [41] - [42], his Honour continued:

"[41] When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.

[42] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45, Mason J, who had earlier been a member of the Commonwealth Administrative Review Committee, said this of an analogous question, in words applicable to the present issue:

'It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made.' ...".

46 The Anti-Discrimination Tribunal is not given power to substitute its decision for that of the Commissioner. That is done by the direct operation of s72, and accordingly this passage from the judgment of Kirby J in Shi's case shows the correct approach of the Tribunal to its review function.

47 The matters to which I have referred in the above analysis compel the conclusion that, as a body carrying out an administrative task of review, the Tribunal is one whose "... function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be ... decid[ing] the matter by reference to the evidence before it and not the evidence before the decision-maker"; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521. Thus, when s72 speaks of the Tribunal being satisfied or not that the Commissioner "made a correct decision", it means that the question is whether the decision was the correct one on the material before the Tribunal. The extent of such material is to be governed by relevance. That is the interpretation which accords with the remedial nature of the legislation and which better promotes its objects.

48 As to the Von Stalheim cases, it should be said that in neither case does it seem that the particular point was expressly raised and argued by the parties. It should also be said that the comments of Evans J in the two cases are not irreconcilable. As I pointed out in Von Stalheim v Anti-Discrimination Tribunal [2009] TASSC 6 at [31], the comments at par11 of Von Stalheim v ADC, are ostensibly at odds with the later comments in Von Stalheim v ADT, "... although [in the earlier case] when referring to the opportunity to persuade the Tribunal as to further investigations, his Honour may well have been referring to the type of discretionary power to receive further material which exists in relation to motions to review under the Justices Act 1959".

49 In any event, with respect, and for the reasons which I have given, to the extent that the two cases are reconcilable, I am satisfied that the point is clear enough that neither should be followed. To the extent that they are not reconcilable, I think that the views expressed in Von Stalheim v ADC are correct, and that Von Stalheim v ADT should not be followed. Unfortunately, I am unable to accept that the review function "is loosely analogous" to judicial review proceedings or to a motion to review under the Justices Act 1959.

50 Accordingly, it is my view that the Tribunal was wrong in law in the ruling it made. The error of law is confining itself in any way to the material before the Commissioner, and not treating the review function as a de novo process in relation to the complaint. That is not the error of law contended for by the applicant, and strictly speaking, I suppose that the application should be dismissed. It might be reasonably thought that the Tribunal would conduct itself in accordance with these reasons. However, one of the parties might suggest that an order of restraint should be made in appropriate terms in any event, and I will take up the matter with counsel before making any final orders.