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 affirming Commissioner's dismissal of complaint after investigation.

State of Tasmania v Anti-Discrimination Tribunal (2009) 19 Tas R 54, followed.

Attorney-General: Director of Public Prosecutions

Judgment Number: [2013] TASSC 24

KURT von STALHEIM v ANTI-DISCRIMINATION TRIBUNAL

1 The applicant, Kurt von Stalheim, is aggrieved by a decision of the Anti-Discrimination Tribunal that was made by a single Tribunal member, Mr M Brett, on 26 September 2007. He has applied to this Court for judicial review of that decision pursuant to the Judicial Review Act 2000 ("the JR Act"). The Attorney-General has intervened in the proceedings pursuant to s39 of the JR Act. The Attorney-General contends that the decision in question is not a "decision of an administrative character" for the purposes of the JR Act. If it is not, then this Court has no jurisdiction and the application must be dismissed. I have decided to determine that issue before any others, pursuant to the Supreme Court Rules 2000, r559(1)(b).

2 Although the Tribunal was named as a respondent, it has taken no part in the proceedings. The second respondent, the accounting firm Deloitte Touche Tohmatsu ("Deloittes"), has elected to take no further part in the proceedings, and to submit to any order that the Court makes.

3 In June 2003 the applicant made a written complaint to the Anti-Discrimination Commissioner asserting that Deloittes had discriminated against him and/or victimised him, in contravention of the Anti-Discrimination Act 1998 ("the AD Act"). The Commissioner accepted the complaint and conducted an investigation. Following that investigation, she dismissed the complaint pursuant to s71(1)(a) of the AD Act. The applicant then made an application under s71(3) of the AD Act to the Tribunal for the dismissal of his complaint to be reviewed. After conducting a hearing, the learned Tribunal member made the decision that is now under review, concluding that the Commissioner had made a correct decision in dismissing the complaint. Section 72(1) provides that, in such a situation, the complaint lapses.

"(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

decision to which this Act applies means 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)."

6 In his submissions to me, the applicant relied on a judgment that I wrote ten years ago in relation to an earlier application made by him in similar, but different, circumstances: Von Stalheim v Anti-Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309. On that occasion he had made a complaint to the Anti-Discrimination Commissioner; the Commissioner had decided to reject it without proceeding to investigate it; the applicant had applied to the Tribunal for the review of the rejection decision; the Tribunal had affirmed that decision; and the applicant had applied for judicial review of the Tribunal's decision under the JR Act. I held that the Tribunal's decision was a "decision of an administrative character" for the purposes of the JR Act. In substance, the Tribunal had to decide whether the decision to reject the complaint should stand, or whether it should make a decision that would result in an investigation being conducted.

7 The impugned decision in this case was essentially one that affirmed a decision to dismiss a complaint after an investigation had taken place. If the Tribunal had instead made a decision favourable to the applicant, it could have gone on to determine that Deloittes had broken the law, and to order Deloittes to pay compensation, amongst other things.

8 In order to determine whether the Tribunal's decision was one of an administrative character, it is necessary to consider in more detail the scheme put in place by the AD Act for dealing with complaints as to discrimination and prohibited conduct. The relevant provisions of that Act can be summarised as follows:

• Section 16 prohibits discrimination by one person against another on any of various grounds that are listed in the section. Those grounds include age, gender, disability and "irrelevant criminal record": s16(b), (e), (k) and (q).
• Sections 17 to 21 prohibit other forms of conduct including, amongst others, sexual harassment, victimisation, and inciting hatred: ss17(2), 18(1), and 19 respectively.
• Section 60(1) permits complaints to be made to the Commissioner about discrimination or prohibited conduct in certain circumstances. Under s60(1)(a), a complaint may be made by a person against whom discrimination or prohibited conduct was directed.
• Under s64(1), the Commissioner may reject a complaint if it is trivial, vexatious, misconceived, or lacking in substance, or if it does not relate to discrimination or prohibited conduct, or, in certain situations, if other remedies are or have been available.
• Under s65(2), a person whose complaint was rejected by the Commissioner may apply to the Tribunal for the rejection to be reviewed.
• Under s69(1), the Commissioner may investigate a complaint.
• Under s71(1), on the completion of an investigation, the Commissioner must either dismiss the complaint, refer it for conciliation, or refer it to the Tribunal for an inquiry.
• Under s71(3), a complainant whose complaint is dismissed may apply to the Tribunal for the dismissal to be reviewed.
• Under s72(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.
• Under s72(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.
• Under s72(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 must deal with the complaint as if it were an inquiry.
• When the Tribunal holds an inquiry, it may, amongst other things, amend a complaint, permit a person to be represented or accompanied, require a person to attend a preliminary hearing, make an order as to security for costs, take evidence on oath or affirmation, require any person to appear before it to give evidence, and make an order for costs: ss84(1), 85(2), 86(2), 86A(1), 87(1), 87(2), 99A. It is required to observe the rules of natural justice: s87(4)(a). However the Tribunal is required to conduct the inquiry with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before it permit, is not bound by the rules of evidence, and may inform itself on any matter as it thinks fit: ss86(1), 87(4).
• There is no express requirement that the Tribunal is to decide whether a complaint is substantiated or unsubstantiated.
• Under s89(1), if the Tribunal finds after an inquiry that a complaint is substantiated, it may make various types of orders including, amongst others, an injunction under s89(1)(a), an order for re-employment under s89(1)(c), a compensation order under s89(1)(d), or an order for the payment of a fine under s89(1)(e).
• If the Tribunal finds after an inquiry that a complaint is unsubstantiated, it may dismiss the complaint: s99(1).
• The Tribunal has no powers to compel the enforcement of its orders but, under s90, a certified copy of an order made by it may be filed in this Court, and may then be enforced as if it were an order of this Court.
• The Tribunal's role of reviewing decisions of the Commissioner relates not only to rejections and dismissals of complaints, but also to decisions relating to exemptions and withdrawals: s13(b), 59, 68.

9 Thus, when a complainant applies to the Tribunal for the review of a decision by the Commissioner dismissing a complaint, the Tribunal can, if it thinks it appropriate, make a series of three decisions favourable to the applicant:

• A decision, as contemplated by s72(3), that the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint.
• A finding, after dealing with the complaint as if holding an inquiry, that the complaint was substantiated.
• A decision to make one or more orders pursuant to s89(1), eg, an order for re-employment or an order for compensation.

10 In Kentish Council v Wood [2011] TASFC 3, the Full Court held that a finding by the Tribunal after an inquiry that a complaint was substantiated, and a subsequent order for the payment of compensation, amounted to two separate decisions that were not of an administrative character for the purposes of the JR Act. However, in this case, the applicant lost at the first stage when the Tribunal made a decision that it was satisfied that the Commissioner had made a correct decision in dismissing the complaint.

11 Counsel for the Attorney-General submitted that that decision should not be characterised as one of an administrative character. He relied on the fact that the Tribunal would have had powers to find the complaint substantiated and make remedial orders under s89(1) if its decision at the first stage had gone the other way. He also relied on the fact that the Tribunal, in reaching its decision, had received evidence from witnesses and permitted cross-examination. The applicant submitted that the Tribunal does not have the power to take evidence during reviews, as distinct from inquiries; that the taking of evidence for the purpose of reviewing the Commissioner's decision was irregular; and that the taking of evidence should therefore be ignored for the purpose of determining whether the decision under review was one of an administrative character. He relied on another decision concerning one of his applications, that of Evans J in Von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9.

12 In Mazukov v Anti-Discrimination Tribunal [2004] TASSC 68, Underwood J (as he then was) held that a decision by the Commissioner to dismiss a complaint after an investigation was a decision of an administrative character for the purposes of the JR Act.

13 In State of Tasmania v Anti-Discrimination Tribunal (2009) 19 Tas R 54 at par[16], Porter J held that a decision of the Tribunal upon the review of a dismissal of a complaint by the Commissioner was a decision of an administrative character. At par[13] he observed that the exercise embarked upon by the Commissioner was "that of a screening process". At par[14] his Honour said:

"... 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."

14 I should follow that decision unless I conclude that it is clearly or plainly wrong: Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 at pars[70] - [74]; Motor Accidents Insurance Board v Young (2011) 20 Tas R 89 at par[8]. In my view his Honour's decision was plainly correct. It is only after a decision is made to refer a complaint to the Tribunal for an inquiry, or after a decision is made that requires the Tribunal to deal with the complaint as if holding an inquiry, that the Tribunal may make decisions of a non-administrative character, of the types considered in Kentish Council v Wood.

15 Decisions made by the Commissioner at the conclusion of an investigation, and decisions made by the Tribunal upon reviews of dismissals and rejections of complaints, all have similarities to the sorts of decisions made by magistrates as to whether to commit an accused person for trial. Since 2008, Tasmanian magistrates have not had any power to decide not to commit an accused person for trial: Justices Act 1959, s60(1). However, when a magistrate does have to make a decision whether or not to commit an accused person for trial, that decision is one of an administrative character: Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 558 - 559; Emanuele v Cahill (1987) 71 ALR 302. Such decisions, like decisions under the AD Act about rejections, dismissals and referrals for inquiries, are decisions as to whether or not there are to be further proceedings of a non-administrative character.

16 For these reasons I determine that the decision under review was one of an administrative character for the purposes of the JR Act.