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  • Unreported Judgment

State of Queensland v Walters

 

[2007] QSC 12

Reported at [2007] 2 Qd R 451

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

1 February 2007

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

27 October 2006

JUDGE:

Douglas J

ORDER:

Application dismissed. No order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where second respondent alleges racial discrimination against the applicant – where complaints made by the second respondent to first respondent – where one complaint met the threshold test, but others did not – whether those other complaints were rejected by the first respondent – whether first respondent can now deal with those other complaints

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Peldan v Anderson (2006) 229 ALR 432; (2006) 80 ALJR 1588; [2006] HCA 48, cited

Anti-Discrimination Act 1991, s 135, s 136, s 136(b), s 138(2), s 139, s 142, s 148, s 165, s 167(5)

COUNSEL:

D P O’Gorman for the applicant

J Ball (solicitor) for the first respondent

S J Hamlyn-Harris for the second respondent

SOLICITORS:

Queensland Police Service for the applicant

Anti-Discrimination Commission (Qld) for the first respondent

Legal Aid Queensland for the second respondent

[1] Douglas J: The main legal issue raised by this application is whether part of a complaint made by the second respondent to the Anti-Discrimination Commissioner had been rejected, disentitling him from continuing with that part of the complaint or from making a further complaint relating to “the act or omission that was the subject of the complaint”; see ss 139 and 142 of the Anti-Discrimination Act 1991.  A subsidiary issue is whether the complaint had been referred to the Anti-Discrimination Tribunal when the decision complained of by the first respondent, the Commissioner’s delegate, was made, leaving her without jurisdiction to deal with it.

[2] The difficulties that have caused the dispute arose because the complaint mentioned a number of factual issues, one of which, the alleged failure to provide an interpreter, was accepted as raising an issue of racial discrimination at an early stage.  The other issues raised in the complaint referred to equivocal behaviour, capable of being interpreted as a misunderstanding of the applicant by police officers or as bad manners, but not necessarily reflecting racial discrimination by those officers.   Those issues were not treated initially as providing reasonably sufficient details to indicate an alleged contravention of the Act; see s. 136(b).

Background

[3] The second respondent, Mr Parsa, is an Iranian political refugee, resident in Australia since 1994. He was a schoolteacher in Iran, can understand some English, but needs an interpreter to explain and communicate properly, particularly in respect of legal issues.  He was unfamiliar with the Australian legal system.

[4] He was working in Bowen as a seasonal worker and was assaulted there on 9 August 2002 in what he described as a racially motivated attack. He went to the local police station on 14 August 2002 and says that he asked for an interpreter but was told that an interpreter would cost too much. He also complained that the detective whom he saw dropped his case because he described the alleged offender incorrectly and that another uniformed officer rudely pushed him and his wife out of the police station.  He later took his concerns to police in Brisbane by whom he says he was treated much better and who initiated a prosecution of the person alleged to have attacked him.

[5] He complained about his earlier treatment to the Anti-Discrimination Commissioner (Queensland) on 29 July 2004, alleging that he had been discriminated against on the ground of his race by the police officers in Bowen. Section 136(b) of the Act requires a complaint to set out reasonably sufficient details to indicate an alleged contravention. The first respondent wrote to the Queensland Police Service solicitor on 9 September 2004 and said that the allegations “which have made threshold conditions under section 136 of the Act relate purely to the failure to provide an interpreter.”  She went on to say that Mr Parsa was informed that all other allegations did not set out sufficient details to substantiate his allegation of less favourable treatment because of his race.

[6] Further information was supplied by or on behalf of Mr Parsa about his complaints, particularly attached to a letter dated 12 July 2005 and received by the Commissioner on 18 July 2005, but the first respondent took the view, until 20 December 2005, that Mr Parsa had not set out sufficient details to indicate an alleged contravention of the Act as required by s 136, other than the allegation in respect of the refusal to provide an interpreter.  The first respondent had by then been asked to refer “the complaint” to the Tribunal by both parties and was obliged to do so because of the terms of s. 167(5) of the Act.  She did that by a referral report dated 23 December 2005 that itself made it clear that the complaint referred involved the failure to provide an interpreter and that there was “another related complaint alleging race discrimination which is being dealt with separately.”  Her letter of that date to the applicant’s solicitor also referred to the fact that the complaint that had been referred was one where the parties had been notified more than six months before of its acceptance. 

[7] By 20 December 2005, she had reviewed the more detailed statement of Mr Parsa sent to her on 18 July 2005 and decided that the other allegations made by him “met threshold requirements” under s. 136 of the Act on 18 July because of the information supplied then.  It was clear that she had decided that the complaint about the failure to supply an interpreter met the threshold test much earlier, by 30 December 2004.  It had also been accepted out of time by then.  Section 138(2) gives her a discretion to accept a complaint after one year has expired if the complainant shows good cause. 

[8] On 21 December 2005 she decided to accept “that part of the complaint” that fell outside the statutory time limits and to allocate it to a conciliator.  In context that decision must have related to the complaints separate from the complaint about the failure to supply an interpreter. 

[9] In my view it is clear that the only allegations which the first respondent intended to refer to the Tribunal were those which related to the failure to provide an interpreter: see pp. 148 and 165 of the annexures to the affidavit of Amanda Clarke filed 30 May 2006.  It is also clear that she was treating the complaint as one which raised a number of possible contraventions of the Act; see s. 135.

The issues

[10] The legal issue raised by these facts requires me to examine the effect of s 142(1) of the Act which provides that:

“If a complaint is rejected, it lapses and the complainant is not entitled to make a further complaint relating to the act or omission that was the subject of the complaint.”

[11] Section 139 deals with the rejection of frivolous, trivial or vexatious complaints or where the Commissioner is of the reasonable opinion that the complaint is misconceived or lacking in substance.  At no stage did the first respondent explicitly reject the complaint or complaints of Mr Parsa. Rather, she accepted the complaint in respect of the failure to provide an interpreter and, until 20 December 2005, took the view that not enough details had been set out in respect of the further conduct complained of to indicate an alleged contravention of the Act.

[12] The submission for the applicant was that, in accepting the complaint on or about 11 January 2006, the first respondent erred in law. The argument was that the conduct of the first respondent, in, consistently, concluding that Mr Parsa had not set out sufficient details to indicate an alleged contravention of the Act, amounted to a rejection of that aspect of his complaint. Where, however, the first respondent continued to be willing to entertain further evidence and submissions about those issues and did not expressly reject those aspects of the original complaint pursuant to her powers under s 139, I would be loath to infer from her conduct that she had actually rejected those aspects of Mr Parsa’s complaint.

[13] In particular, Mr Hamlyn-Harris for Mr Parsa drew my attention to the first respondent’s decision of 30 December 2004 where she referred to the allegation which had made the threshold conditions under s 136 as being those which related purely to the failure to provide an interpreter and then to Mr Parsa’s later letter of complaint of 12 July 2005 confirming that he wished to proceed with his other complaints and not to be confined to the refusal to provide an interpreter.

[14] Further submissions in respect of the other issues continued to be made, including one of 18 November 2005, and it is significant that on 20 December 2005 the first respondent said in her letter to the applicant’s solicitor that s 139 had not been invoked in Mr Parsa’s complaint to reject it. In that context, the second respondent’s submission was that the complaint made by Mr Parsa dated 12 July 2005 had been treated by the Commissioner as a second complaint, accepted as such by her on 21 December 2005, and confirmed on 11 January 2006 in the letter evidencing the decision the subject of this attack.  I do not believe that it needs to be treated as a second complaint. Rather, I see it as an elaboration of the evidence said to constitute contraventions already the subject of the original complaint.

[15] The question then is whether Mr Parsa was entitled under the Act to make a complaint about more than one contravention and whether the first respondent acted within her powers in dealing with the alleged contraventions piecemeal or by separate timetables.

[16] Mr Hamlyn-Harris submitted that a complaint may allege more than one contravention of the Act so that a number of alleged contraventions may be the subject of one or more complaints. That follows from the terms of s 135 which provides that a person may make a complaint alleging more than one contravention of the Act.

[17] Where there had been no explicit rejection of the other aspects of Mr Parsa’s  complaint or conduct which should be treated as equivalent to a rejection, it is my view that there was nothing to prevent Mr Parsa from pursuing the other aspects of his original complaint or preventing the first respondent from dealing with complaint by treating it as involving separate contraventions in respect of some of which she was not originally satisfied with the detail provided but where, later, she became so satisfied. 

[18] Section 141(1) requires the Commissioner to decide whether to accept or reject a complaint within 28 days of receiving the complaint.  In this case, the first respondent made no decision either to accept or to reject the complaint within that 28 day period but eventually decided to accept it out of time.  That failure to apply s 141(1) in its strict terms should not require any conclusion that further dealing with the complaint by the second respondent was invalid.  Her continued dealing with the complaint is not precluded by the Act, in my view, particularly because of the terms of s 138(2) permitting the acceptance of a complaint more than a year after the alleged contravention if the complainant shows good cause.  In construing the Act to try to ensure that its provisions “give effect to harmonious goals” it seems to me to be legitimate for the Commissioner not to accept or reject a complaint within the 28 day period, at least if the issue whether good cause has been shown for accepting the complaint out of time is also alive; see, generally, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382, [70]-[71], 389-390 [92]-[93] and Peldan v Anderson (2006) 229 ALR 432; (2006) 80 ALJR 1588; [2006] HCA 48 at [40].

[19] Nor is it my view that her failure to accept all of the complaint immediately should have the effect that she is deemed to have rejected those aspects of the complaint that were not then accepted.  The Act does not require that result and it is not one that I believe I can imply into its operation. 

[20] In the circumstances it is unnecessary to decide what would be the effect of the rejection of one alleged contravention on the complainant’s ability to continue with a complaint raising a number of possible contraventions of the Act.  Because s. 135 allows a person to make a complaint alleging more than one contravention of the Act, it seems more practical to permit the Commissioner to treat such a complaint as one where several complaints have been made, some of which may be rejected without affecting the status of the others.  That follows from my view that it is possible to accept separate alleged contraventions of the Act at different times after the original complaint was made.

Orders

[21] Accordingly, in my view, there is no demonstrated error in the first respondent dealing with the complaint in the manner in which she did. The application is dismissed. The parties agreed that there should be no ord er as to costs.

Close

Editorial Notes

  • Published Case Name:

    State of Qld (through the Qld Police Service) v Walters (in her capacity as Delegate of the Anti-Discrimination Commission Qld) & Anor

  • Shortened Case Name:

    State of Queensland v Walters

  • Reported Citation:

    [2007] 2 Qd R 451

  • MNC:

    [2007] QSC 12

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    01 Feb 2007

Litigation History

Event Citation or File Date Notes
Primary Judgment [2007] 2 Qd R 451 01 Feb 2007 -

Appeal Status

No Status