Anti-Discrimination Act 1998 (Tas), ss 63, 64(1), 65(2) and 72.

Bullard v Anti-Discrimination Tribunal [2020] TASSC 15, 31 Tas R 282, considered.

Judgment Number: [2022] TASSC 2

TASMANIA HEALTH SERVICE v ANTI-DISCRIMINATION TRIBUNAL

1 As posited by counsel for the applicant, Mr Turner SC and Ms Winton, in the applicant's written submissions, this application for an order of review under the Judicial Review Act 2000 (the JR Act), raises two questions of law relating to whether the Anti-Discrimination Tribunal (the Tribunal) acted in excess of its jurisdiction when making a decision on 12 August 2021 in Dr Marcus Gurgius v Tasmanian Health Service & Ors [2021] TASADT (sic). By that decision the Tribunal referred "out of time" complaints that had not been accepted by the Anti-Discrimination Commissioner (the Commissioner) back to the Commissioner for investigation.

2 The first question is said to be whether the Tribunal had jurisdiction to review the decision of the Commissioner to reject out of time complaints under s 64(1) of the Anti-Discrimination Act 1998 (the AD Act), in circumstances where the Commissioner had not accepted those out of time complaints under s 63(2) of that Act.

3 The second question is said to be whether the Tribunal acted in excess of its jurisdiction by failing to give notice to the applicant of its review of the Commissioner's decision and a reasonable opportunity to be heard.

4 The following background is set out in the applicant's written submissions:

"4 On 4 November 2020 Dr Marcus Gurgius (the complainant) lodged a complaint with the Commissioner. It contained numerous allegations. Some of those allegations related to matters that occurred outside the 12 month time limit appearing in s 63(1) of the Act, including that:

(a) on 19 August 2019, Dr Kaur told the complainant to cancel his patients and attend a third-year medical student's lecture; and

(b) on 21 October 2019, Dr Frances referred to the complainant as 'crazy'

Other allegations were made concerning matters that were within the 12 months. Those allegations related to the manner in which the applicant investigated the complainant's grievance over the Bullying Allegations and associated matters.

5 In an assessment decision dated 7 December 2020, the Commissioner rejected the whole of the complaint under s 64(1)(a) and (b) of the Act, on the basis that it was misconceived and did not relate to discrimination or prohibited conduct. Noting that the Bullying Allegations were made out of time, the Commissioner stated that:

Under section 63(2) of the Act, I may accept a complaint made out of time if I am satisfied it is reasonable to do so. I have formed the view it is not necessary to decide whether or not I should accept the part of the complaint out of time, because I am of the view that the entirety of the complaint should be rejected.

6 Pursuant to s 65(2) of the Act, the complainant made an application to the Tribunal for review of the Commissioner's decision on 18 December 2020. On 4 March 2021 the complainant attended a hearing conducted by Tribunal Member Cuthbertson. Written submissions were provided by the complainant to the Tribunal in advance. The Tribunal did not notify the applicant of its hearing or provide the applicant with any opportunity to make submissions.

7 On 12 August 2020, the Tribunal determined that it was 'not satisfied that the Commissioner made a correct decision to reject that part of the complainant's complaint that relates to' the Bullying Allegations and referred those complaints back to the Commissioner for investigation pursuant to s 72(2) of the Act. The Tribunal affirmed the Commissioner's rejection of the balance of the complaint." [Emphasis added.]

5 The applicant contends that when an out of time complaint is received by the Commissioner, the choice is to accept in or to refuse to accept in, that complaint (see Bullard v Anti-Discrimination Tribunal [2020] TASC 15[2020] TASSC 15; , 31 Tas R 282.

6 The applicant submits that the power under s 64(1) of the AD Act to reject a complaint arises only when an out of time complaint has been accepted, as acceptance of such a complaint is a jurisdictional fact that preconditions the Commissioner's power to either reject the complaint under s 64(1) or accept the complaint (s 67), for investigation (s 69).

7 If that contention is correct, the applicant contends, the Commissioner did not reject the Bullying Allegations under s 64(1) at all, with the consequence that the complainant's request for review by the Tribunal under s 65(2) was without foundation and the respondent's jurisdiction to review the Commissioner's rejection of those complaints under s 72 was never enlivened.

8 This, the applicant says amounts to jurisdictional error. Counsel relies on Gedeon v NSW Crime Commission [2008] HCA 43, 236 CLR 120 where the majority of the High Court said of the phrase "jurisdictional fact" at 139:

"Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker."

9 Whether a criterion is jurisdictional is a question of statutory construction (see Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [6] (Spigelman CJ); Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55, at [39] (Spigelman CJ)).

10 As submitted by counsel for the applicant, in this case, the AD Act prohibits discrimination and other specified conduct and provides a scheme for the investigation, conciliation and inquiry into complaints relating to such discrimination and conduct. The Commissioner's "role [under the Act] is investigative and conciliatory."[1] The Commissioner has a number of functions including, relevantly, investigating and seeking to resolve complaints: s 6(h). That function, in particular, involves determining the procedures to be followed in any investigation or complaint resolution process, and facilitating the resolution of complaints through conciliation: ss 7(c), 74-77.

11 The functions and powers of the Tribunal, on the other hand, are "adjudicative."[2] The body has two functions: s 13. The first is to conduct an inquiry. That function is engaged where the Commissioner makes a referral to the Tribunal because the complaint cannot be resolved by conciliation: see s 78(1); cf 72(3). The second is a limited review function, under which the Tribunal has the power to review the Commissioner's decisions in relation to exemptions (s 59(1)), withdrawals (s 98A), rejections (s 65(2)) and dismissals (s 71(3)) of complaints: s 13. It is the power to deal with rejections with which the Court is concerned in this case.

12 The statutory provisions relevant to this dispute are found in Pt 6 of the Act dealing with dispute resolution. Within Pt 6, a complaint includes part of a complaint: s 59A. Complaints are dealt with in Div 1A. Section 60 provides for those people who have standing to make a complaint and includes in s 60(2) an 'own motion' power. These are threshold provisions which a complaint must meet in order to enable the Commissioner to consider it. There are, however, other threshold provisions, including s 63, which provides for the time within which a complaint must be made:

(1) A complaint is to be made within 12 months after the alleged discrimination or prohibited conduct took place.

(2) The Commissioner may accept a complaint made after the 12-month time limitation has expired if satisfied that it is reasonable to do so."

13 Section 64 provides the Commissioner with the power to summarily reject a complaint that otherwise meets the threshold provisions of the Act. A rejection by the Commissioner is subject to the limited right of review provided under s 72.

14 The Tribunal's jurisdiction under s 72(2) to refer a complaint back to the Commissioner for investigation depends on whether the Commissioner "rejected" a person's complaint in accordance with s 64(1). Geason J held in Bullard v Anti-Discrimination Tribunal (above) at [38] that "a complaint that is not accepted under s 63 of the Act, is incapable of rejection; s 64 is not engaged when a complaint is not accepted under s 63".

15 I accept the applicant's submission that acceptance by the Commissioner of an out of time complaint under s 63(2) of the AD Act is the gate, or jurisdictional fact, that enlivens:

• the Commissioner's power to reject a complaint under s 64(1);
• the complainant's right to apply to the Tribunal for review of the Commissioner's rejection under s 65(2); and
• the Tribunal's power to refer a complaint back to the Commissioner for investigation under s 72(2).

16 It follows, in my view, that the effect of the Commissioner's explicit and unequivocal decision not to consider whether it was reasonable for her to accept the Bullying Allegations under s 63(2) is that those matters are not the subject of any valid complaint under the AD Act. Thus, as contended by the applicant, having never been accepted, the Bullying Allegations could not have been rejected by the Commissioner under s 64(1). As a consequence, there was no decision with respect to those parts of the complaint for the respondent Tribunal to review under s 72(2).

17 The effect of that upon the decision of the Tribunal under review is, in my view, precisely as expressed by counsel for the applicant in their written submissions, namely:

"Under the Act, a complaint made outside the time limit imposed by s 63(1) is only effectual - in the sense of engaging the attention of the Commissioner under subsequent sections 64 - 68 of the Act - if the Commissioner is satisfied that it is reasonable for her to accept the complaint pursuant to s 63(2).[3] As the precondition for the Commissioner's power under s 64(1) to reject the out of time complaints was not satisfied, those complaints were not rejected under s 64(1). Accordingly, the respondent lacked jurisdiction to conduct a review of the Commissioner's decision to reject those complaints based on their substance. There was nothing to review."

18 To the extent that it might be suggested that authority exists for the proposition that a purported administrative decision may nonetheless be reviewed, it must be observed that the error in this case on the part of the Commissioner involved an explicit and unequivocal decision to refute the need to be satisfied of a jurisdictional fact that was a precondition to her relevant exercise of power. There was no decision made which was capable of review by the Tribunal.

19 The second question as to whether the Tribunal acted in excess of its jurisdiction by failing to give notice to the applicant of its review of the Commissioner's decision and a reasonable opportunity to be heard is accepted by counsel for the applicant to only ever having been an alternative to the first ground of review.

20 It is unnecessary for me to consider that alternative argument as there was no valid procedure before the Tribunal in respect of which it might be said that fairness ought to have been afforded.

21 I observe however that the answer to the question seems to me to be relatively clear. As counsel said in their written submissions, in Bullard, Geason J said at [48] of his reasons that he would have found for the applicant on its alternative ground, that the Tribunal's failure to afford the applicant procedural fairness constituted jurisdictional error. His Honour stated at [45]-[46] that:

"The Tribunal believed it was conducting a review under s 65(2) of the Act. Section 72(3) of the Act empowers the Tribunal to deal with a complaint as if it were an inquiry, in circumstances where it is satisfied that the dismissal of a complaint by the Commissioner was not a correct decision. Self-evidently that procedure might affect the interests of the Education Department.

The content of the duty is more frequently in focus: Kioa[4] (above) at 585. It depends on the circumstances of the matter, including the statutory context. Here it included giving notice of the Tribunal's intention to proceed to conduct the review, and affording the applicant a reasonable opportunity to present a case on that review."

22 For the foregoing reasons, the application for an order of review is granted and I order pursuant to s 27(1)(a) of the JR Act that the respondent's decision of 12 August 2021 under review be quashed.

[1] Tasmania, Parliamentary Debates, House of Assembly, 3 December 1998, 55 (Attorney-General Judy Jackson).

[2] Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104, 169 FCR 85 (Full Court).

[4] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.