[2003] TASSC 24

Administrative Law - Judicial review legislation - Jurisdiction and generally - "Decision" within Act's application - "Of an administrative character" - Anti-Discrimination Tribunal (Tas) - Decision Commissioner correct in rejecting complaint.

Anti-Discrimination Act 1998 (Tas), ss65(2) and 72(1).

Judicial Review Act 2000 (Tas), s4(1).

Judgment ID Number: [2003] TASSC 24

KURT von STALHEIM v CHAIRPERSON OF THE ANTI-DISCRIMINATION TRIBUNAL

1 The applicant is aggrieved by a decision of the chairperson of the Anti-Discrimination Tribunal ("the Tribunal"). The learned chairperson ("the respondent") decided she was satisfied that the Anti-Discrimination Commissioner ("the Commissioner") had made a correct decision in rejecting a complaint made by the applicant pursuant to the Anti-Discrimination Act 1998. The applicant has filed in this Court, and served, a document headed "notice of appeal", by which he has given notice that he will move the Court to review the decision of the respondent, and to quash it, on seven grounds, each of which asserts that she erred in law and in fact in some respect. Counsel for the respondent has submitted that the Court has no jurisdiction, but has not taken any point as to the form of the "notice of appeal". The applicant contends that the Court has jurisdiction pursuant to the Judicial Review Act 2000.

2 According to the decision of the respondent, the applicant lodged a complaint alleging unlawful discrimination by a prospective employer on the basis of age and disability, but the Commissioner rejected it, relying on the Anti-Discrimination Act, s64(1)(a), (b) and (f). Rejection under that Act is something different from dismissal. Under s64, the Commissioner is required to decide whether to accept or reject each complaint. If she decides to reject a complaint, she does not proceed to investigate it. If she decides to accept a complaint, she may investigate it and, at the conclusion of an investigation, must either dismiss it, determine that it is to proceed to conciliation, or determine that it is to proceed to an inquiry. See s71(1). The complaint in question was not dismissed pursuant to s71(1), but was rejected pursuant to s64(1).

3 Under s65(2), a person whose complaint is rejected by the Commissioner may apply to the Tribunal for the rejection to be reviewed. Apparently the applicant made such an application. One possible result of such an application is dealt with in s72(1), which reads as follows:

"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."

4 It appears that the respondent reviewed the rejection of the applicant's complaint, and was satisfied that the Commissioner made a correct decision in rejecting it. It therefore lapsed as a result of the operation of s72(1). The applicant is seeking to challenge the respondent's decision that she was satisfied that the Commissioner made a correct decision in rejecting the complaint.

5 The Anti-Discrimination Act, s100, makes provision for appeals to this Court from certain specified types of decisions. The only decisions that can be challenged by appeals under s100 are orders made under ss89(1), 89(2) or 95, dismissals under s99, and determinations of questions of law under s86(4). A decision within the scope of s72(1) is not a decision to which s100 applies. That is common ground. Despite the form of his "notice of appeal", the applicant is relying solely on the Judicial Review Act.

6 Jurisdiction is conferred on this Court by the Judicial Review Act, s17(1), which reads as follows:

"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."

7 The term "decision to which this Act applies", is defined in s4(1), which reads as follows:

"In this Act, '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)."

8 There is no doubt that the respondent's decision was one made under an enactment. However, her counsel contends that it was not "a decision of an administrative character" but a decision of a judicial character.

9 He argued (inter alia) that it was a decision of a judicial character because the Tribunal falls within the definition of "lower courts" in the Magistrates Court Act 1987, s3. That section includes the following:

"In this Act, unless the contrary intention appears -

(b) courts of summary jurisdiction within the meaning of the Justices Act 1959;

(ba) the Land Valuation Court continued under Part 7 of the Valuation of Land Act 2001;

(ii) of which a magistrate is the chairperson".

10 Although the Tribunal constitutes a lower court for the purposes of the Magistrates Act, it does not follow that it constitutes a court nor that, for the purposes of the Judicial Review Act, it makes decisions that are not of an administrative character. The term "lower courts" is used in four sections in the Magistrates Court Act, namely ss15, 15AA, 16 and 17B. Under s15, the Chief Magistrate is required to determine the places where lower courts may be held each year; to determine what jurisdictions shall be exercised by each lower court; to direct in which lower courts each magistrate, justice, or coroner is to sit; to ensure the orderly and expeditious discharge of the business of the lower courts; and to be responsible for the allocation of matters for first appearance in the lower courts. Under 15A, he may issue, vary, revoke and publish practice directions in relation to the practice and procedure of the lower courts. Under s16, the Administrator of the Magistrates Court is responsible for the control and direction of the staff of the lower courts. Under s17B, the majority of the magistrates may make rules of court under the Evidence (Audio and Audio Visual Links) Act 1999. Clearly the Tribunal is treated as a court for the purposes of those provisions only as a matter of convenience. The fact that Parliament chose to extend the operation of those provisions to the Tribunal by including it in the definition of "lower courts", rather than by using words that did not involve treating the Tribunal as a court, is of no relevance to the question whether the respondent's decision was one of an administrative character.

11 In judicial review legislation, the term "a decision of an administrative character" relates to the distinction that is maintained between administrative, legislative and judicial activities: Evans v Friemann [1981] FCA 85; (1981) 35 ALR 428 at 433 - 434. Because of the wording of the Constitution of the Commonwealth, there is a large body of case law as to the factors that should be taken into account in deciding whether a particular statutory power does or does not constitute part of the judicial power of the Commonwealth. See, for example, Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144; R v Quinn ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1; Steele v Defence Forces Retirement Benefits Board [1955] HCA 34; (1955) 92 CLR 177; Commonwealth v Anderson [1957] HCA 44; (1957) 97 CLR 345. One significant case in relation to the distinction between decisions of an administrative character and those of a judicial character is Registrar of Motor Vehicles v Dainer [1985] FCA 10; (1985) 57 ALR 759. The applicant in that case made a decision refusing to renew the registration of a motor vehicle pursuant to an ordinance of the Australian Capital Territory. The ordinance provided that any person aggrieved by such a decision could appeal to the Court of Petty Sessions. The applicant's decision was reversed on an appeal to that court. The applicant applied to the Federal Court of Australia for the review of that decision, relying on the Administrative Decisions (Judicial Review) Act 1977 (Cth). Neaves J held that the decision of the magistrate was not a decision of an administrative character, but a decision of a judicial character, even though the Court of Petty Sessions was required not to consider whether the registrar had erred, but to decide, on such material as might be placed before the court, what was the correct or preferable decision. Neaves J took into account the fact that the review function was conferred upon the Court of Petty Sessions rather than upon the magistrates as individuals; the fact that the appeal to the Court of Petty Sessions involved a proceeding with parties, and a formal hearing, with the right to examine and cross-examine witnesses, and to make submissions; the fact that the court's decision was binding on the registrar; the fact that the provision for an appeal to the Court of Petty Sessions replaced a provision providing for review by the relevant Minister of State; the language of the ordinance in relation to the functions of the registrar and the Court of Petty Sessions; and the nature of the "appeal".

12 In my view there are very few factors that weigh in favour of the respondent's decision being regarded as one of a judicial character. It is true that she happened to be a magistrate. It is also true that the making by her of a decision favourable to the applicant would have opened up the possibility of the Tribunal ultimately making orders to his benefit, and to the detriment of the prospective employer. If the respondent had not been satisfied that the Commissioner had made a correct decision in rejecting the complaint, she would have been obliged by s72(2) to refer the complaint back to the Commissioner for investigation. A possible outcome of an investigation by the Commissioner is a determination that the complaint is to proceed to an inquiry before the Tribunal. Such an inquiry could be expected to involve a formal hearing with the applicant and the prospective employer participating as complainant and respondent. The Tribunal could make orders under s89 for the benefit of the applicant, and to the detriment of the prospective employer, if it found the complaint was substantiated after such an inquiry.

13 However, the Anti-Discrimination Act does not require the Tribunal to be constituted by a magistrate. Under s12(1)(c), its chairperson is required to be either a legal practitioner of not less than seven years' standing, a magistrate, or a former judge. Persons who have no such qualifications are able to be appointed as members of the Tribunal under s12(1)(b). The Tribunal may not exercise its powers unless a member with one of those qualifications either constitutes the Tribunal, or is one of the members who constitutes the Tribunal: s12(2) and (3). However, there is no requirement for the Tribunal to include, or be constituted by, a magistrate or any other sort of judicial officer. The Tribunal is not a court.

14 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), 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.

15 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. I therefore reject the submission that the Court lacks jurisdiction. I hold that the Court has jurisdiction to review the respondent's decision pursuant to the Judicial Review Act, s17(1).