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CITE

Unreported Judgment
Appeal Pending

Jin v State of Queensland (Department of Communities, Housing and Digital Economy)[2023] ICQ 10Davis J and President
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Jin v State of Queensland (Department of Communities, Housing and Digital Economy)[2023] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Anor [2023] ICQ 010
PARTIES:	YIN CHENG JIN (appellant) v STATE OF QUEENSLAND (DEPARTMENT OF COMMUNITIES, HOUSING AND DIGITAL ECONOMY) (first respondent) and SIMON ELLIOT (second respondent)
FILE NO:	C/2023/7
PROCEEDING:	Appeal
DELIVERED ON:	30 May 2023
HEARING DATE:	30 May 2023
MEMBER:	Davis J, President
ORDER:	Appeal dismissed
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – QUEENSLAND – where the appellant made complaint of racial discrimination – the complaint was made under the Anti-Discrimination Act 1991 (AD Act) – where the Human Rights Commissioner did not accept the complaint – where the Commissioner advised the appellant that no breach of the AD Act or the Human Rights Act 2019 were shown in the complaint – where the appellant applied to the Queensland Industrial Relations Commission (QIRC) to review the determination of the Human Rights Commissioner – where the QIRC held that there was no jurisdiction to review the determination of the Human Rights Commissioner – where the appellant appealed that decision – whether the determination of the Human Rights Commissioner was a decision – whether the QIRC had jurisdiction to review that determination Anti-Discrimination Act 1991, s 7, s 134, s 139, s 141, s 142, s 143, s 144, s 169, s 174A, s 174B Human Rights Act 2019 Judicial Review Act 1991, s 4, s 20 Public Interest Disclosure Act 2010
CASES:	Griffith University v Tang (2005) 221 CLR 99, cited Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Or [2023] QIRC 013, related
REPRESENTATION:	No appearance for the appellant D Walker for the first respondent No appearance for the second respondent

[1]
The appellant, Yin Cheng Jin, has appealed a decision of the Queensland Industrial Relations Commission.^[1]
[2]
The decision of the QIRC was one dismissing what was alleged to be a decision of the Queensland Human Rights Commission (QHRC) rejecting a complaint made by Mr Jin under the Anti-Discrimination Act 1991 (AD Act). The QIRC found that it had no power to review the decision of the QHRC.

Background

[3]
In 2021, the position of Curatorial Manager of Asian and Pacific Art at the Queensland Art Gallery of Modern Art (the Gallery) became available.
[4]
Mr Jin applied for the position but was not shortlisted.
[5]
Mr Jin is of Chinese descent and he complained to the QHRC that in the selection process he had been discriminated against on the basis of race.^[2]
[6]
On 8 February 2022, the QHRC wrote to Mr Jin. The letter is very detailed. The author referred to Mr Jin’s complaint and then said:

“Our Decision

We have considered whether your complaint amounts to a breach of any of the Acts listed above.^[3] The AD Act and the HR Act appear relevant to your complaint.

Under section 136 of the AD Act, a complaint must set out reasonably sufficient details to indicate an alleged breach of the AD Act. Under section 67 of the HR Act, a complaint must set out enough details to indicate an alleged breach of the HR Act.

Your complaint does not appear to come under either Act because the information provided does not indicate a contravention of the Acts.”

[7]
There followed a detailed explanation as to why Mr Jin’s complaint did not establish a breach of either the AD Act or the Human Rights Act 2019 and then this was said:

“Next Steps

If after reading this decision, you believe you have more information to indicate your complaint is covered by the AD Act, the HR Act or the PID Act, please provide it to us within 7 days.

You should keep in mind that you have only 1 year from the first incident you are complaining about, to provide us with enough information to show it comes under any of the Acts. Your complaint may not be accepted if you delay beyond 1 year.”

[8]
Mr Jin filed an application to the Queensland Civil and Administrative Tribunal (QCAT). Member Fitzpatrick of QCAT rejected the application. On 4 July 2022, Member Fitzpatrick ordered:

“IT IS THE DECISION OF THE TRIBUNAL THAT:

1.
The application for miscellaneous matters is dismissed on the basis that:

(a)
The Queensland Civil and Administrative Tribunal is not properly seized of the applicant’s complaint because the applicant’s complaint to the Queensland Human Rights Commission was rejected and was not referred to the Queensland Civil and Administrative Tribunal;

(b)
The Queensland Civil and Administrative Tribunal has no function it may perform under s 174A of the Anti-Discrimination Act 1991 (Qld) in circumstances where the original complaint to the Queensland Human Rights Commission has been rejected and is not referred to the Queensland Civil and Administrative Tribunal;

(c)
In any event the Queensland Civil and Administrative Tribunal has no power to review a decision of the Queensland Human Rights Commission to reject a complaint.

2.
The decision of the Registrar to reject the applicant’s purported referral filed 7 April 2022 is affirmed.”

[9]
Section 174A of the AD Act referred to in the QCAT orders is:

“174AFunctions of QCAT

QCAT has the following functions—

(a)
in relation to complaints about contraventions of this Act that are referred, or to be referred, to QCAT under this Act—

(i)
to make orders under section 144 before the complaints are referred to the tribunal; and

(ii)
to review decisions of the commissioner under section 169 about lapsing of the complaints; and

(iii)
to enforce agreements for resolution of the complaints by conciliation; and

(iv)
to hear and decide the complaints;

(b)
to grant exemptions from this Act, other than in relation to work-related matters;

(d)
any other function conferred on QCAT by this Act;

(e)
to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).”

[10]
Mr Jin then filed an application in the QIRC for a review of what he saw as the decision of QHRC to reject his complaint. Mr Jin named two respondents to his application neither of whom were the QHRC. They were:

Corporate Administration Agency, Department of Communities, Housing and Digital Economy;
Mr Simon Elliot.

[11]
Mr Elliot is a Deputy Director of the Gallery.
[12]
The application sought:

“The QHRC twist my complaint regarding the discrimination act conducted by the respondent.

I am seeking a hearing held by the Tribunal to investigate the matter.

I believe that the respondent should apologise and pay proper compensation (sic).

The facts and reasons for My application:

1.
In Feb 2021, I applied for the position (QAG 361474) advertised by QCAA as ‘Curatorial Manger - Asian & Pacific Art’ with an addition statement - ‘Asian & pacific language is desirable’.

2.
In April, QCAA informed that I was not successful but could ask for feedback from Mr. Elliot. I asked. However, I could not receive it until I complained to QCAA. The ‘feedback’ clearly indicated that I was discriminated in the recruitment processing.”

[13]
Attached to the application was a document entitled “The facts and reasons for My application for review”. It is unnecessary to analyse that document. Suffice to say, Mr Jin complained about the selection process as well as his dealings with the QHRC.
[14]
Both the QCAT^[4] and the QIRC^[5] have limited jurisdiction under the AD Act.
[15]
The Industrial Commissioner identified s 169(3)^[6] of the AD Act^[7] as a potential source of jurisdiction for the QIRC.
[16]
On 6 December 2022, the Industrial Commissioner made directions:

“DIRECTIONS ORDER

HAVING received a copy of the Queensland Human Rights Commission’s decision of 8 February 2022, Commissioner Pidgeon notes that the decision subject of the Complainant’s application is not one to dismiss the complaint for having lapsed pursuant to section 169(3) of the Anti-Discrimination Act 1991 (Qld). IT IS ORDERED:-

1.
That the Complainant file in the Industrial Registry and serve on the Respondent, written submissions of no more than three (3) pages, type-written, 1.5 line spaced, 12-point font size and with numbered paragraphs plus any relevant attachments, in support of the application by 4:00 pm on 20 December 2022.

2.
That the Complainant’s submissions must address:

(a)
How section 169(3) of the Anti-Discrimination Act 1991 (Qld) applies to the complaint; and

(b)
What jurisdiction the Queensland Industrial Relations Commission has to consider the decision of the Queensland Human Rights Commission dated 8 February 2022.”

[17]
On 4 January 2023, Mr Jin filed further submissions. Again, it is not necessary to analyse those submissions. It is sufficient to observe that the submissions made complaint about the selection process and the conduct of the QHRC but did not address the jurisdictional issue raised by s 169(3).
[18]
The QIRC dismissed the application on 19 January 2023. In so doing, the QIRC observed:

Section 169(3) of the AD Act empowered the Human Rights Commissioner to take steps to cause the complaint to lapse.^[8]
If the complaint lapses, the Commissioner must write to the complainant informing them that the complaint has lapsed.^[9]
Within 28 days of being notified that the complaint has lapsed, the complainant may apply to the Tribunal^[10] to review the decision. Here, the Tribunal was the QIRC.^[11]

[19]
The QIRC then held:

The decision of 8 February 2022 was not a decision made under s 169(3) of the AD Act.
Therefore, there was no jurisdiction in the QIRC to review the decision. The application was dismissed.^[12]

[20]
From that decision, Mr Jin mounted the present appeal. The respondents are the Corporate Administration Agency, Department of Communities, Housing and Digital Economy, Queensland and “Queensland Art Gallery”, although various orders of the Court are headed naming Mr Elliot as a respondent.
[21]
The grounds of appeal as they originally appeared:

“It is very difficult to engage a lawyer to fight for my right with powerful governmental agent and institution which takes great advantages. (f1)

1.
The Ombudsman advised me to take that matter to QIRC. But on 15/12/22 he wrote to me his first advice was ‘incorrect’ as the matter could be handled by Ombudsman as QCAA is a government agent. QIRC already made a Direction Order on 9/12/22. It was a great confusion as QIRC’s decision states (16) ‘QRIC did not have the power to review a decision of the QRHC to reject a complaint’. I raised the issue to Ombudsman. This time, I did not even get any submission from other parties. I wonder if they can do the same way if the matter be handled by Ombudsman. I just do my best and highly appreciate you understanding when some error in my papers.

2.
QCAA advertised the position - ‘Curatorial Manager, Asian & Pacific Art’ with ‘Asian and pacific language is desirable’. Elliot used ‘The position covers ‘Broader geography of Southeast Asia and throughout the Pacific’ to exclude me with ‘Chinese Art and Mandarin’ fundamentally.

3.
The unfair discrimination against people with the knowledge of ‘Asian’ art, language culture, markets that covered by what was advertised was vindicated by ‘Broader geography of’ and throughout which was an artificial expression as Asia is much broader. (Re: the QCAA’s ad (GAG 361474) and Elliott statement).

4.
QCAA and Elliott didn’t release the details of recruitment. QCAA it Ms Terry admitted was a bureaucratic issue however, it was categorically a matter of human right and equal opportunity. While gallery’s conducted an unfair discrimination against me, QCAA’s ad contained a categorical inducement. It is liable for a discriminatory advertising (re the ACT 14 and Part 3.127).

5.
Ruled by the AD Act, QHRC’s decision ‘must be in 28 days’. I complained to QHRC on 11 July 2021. On 8 Feb 2022 QHRC sent a decision and asked me to provide ‘detail’ in ‘7 days’. Its decision twisted key facts and point of unfair discrimination that was fundamental and categorical using trivial points from ‘feedback’ and Ms Zeihmer’s letter to me; separated ‘race’ from the knowledge of art, culture and language.

6.
Recruitment of industrial relation that is much human and intellectual than commercial regulation like a shop will be punished if it flaunts selling Asian goods, but chines, Indian, Japanese goods are excluded in the shop) It was violation to turn ‘Asia & Pacific’ to ‘broader geography of Southeast Asia & throughout The Pacific’ (re the ADT act).”^[13]

[22]
Various submissions were filed. The appeal was listed for hearing on 1 August 2023.
[23]
The matter was mentioned on 16 May 2023. The respondents appeared but Mr Jin did not. The following orders were made:

“1.
The appeal will, subject to orders 2 and 3, be determined on the written submissions that have been filed, without further oral hearing.

2.
The parties have leave to file an application for leave to make oral submissions on the appeal on or before 4.00 pm on 26 May 2023.

3.
In the absence of any application for leave being filed, the appeal will be determined on the written submissions without further oral hearing.”

[24]
No application was made by 4.00 pm on 26 May 2023 by any party. However, on the afternoon of 26 May 2023, Mr Jin sent an email to the Court registry in terms:

“On 6 May 2023, I was advised that a hearing would be on 1 August 2023.

I am not very clear about the order ‘2’.

In the court processing, I made submissions according to the orders and sent copies to the other parties as advised. However, the other parties just made the ‘submission’ once, and regardless how elusive and empty their submission was, it could only pass to me by the court about 10 days later rather than by themselves.

The other parties’ behavior has been bureaucratic, arrogant and abusive. I have to apply for ‘leave to make oral submission on the appeal’.”

[25]
I regarded that as an application to apply for leave to make oral submissions on the appeal and on 26 May 2023 I set the appeal down for hearing on Tuesday, 30 May 2023.
[26]
On 26 May 2023, the Industrial Registry sent a “Notice of Amended Appeal Listing” (NOAAL) to Mr Jin and the respondents by email. The address for Mr Jin was the email he used to send the email referred to in paragraph [24] of these reasons. The NOAAL advised Mr Jin that the date of 1 August 2023 was vacated and the appeal would be heard at 9.00 am on 30 May 2023.
[27]
On 29 May 2023, the Industrial Registry emailed all parties reminding them of the new listing.

Consideration

[28]
On 30 May 2023, the appeal was called for hearing. Mr Walker appeared for the first respondent. There was no appearance on behalf of Mr Elliot and Mr Jin did not appear.
[29]
The AD Act provides a structure whereby a person may make a complaint to the Human Rights Commissioner.^[14]
[30]
Various mechanisms are provided in the AD Act for investigation of complaints^[15] and conciliation.^[16]
[31]
For the purposes of the AD Act, much turns on whether a complaint is accepted or rejected by the Human Rights Commissioner.^[17] The Human Rights Commissioner is empowered to make various decisions (including not to accept a complaint), many of which may be a “decision under an enactment”.^[18] Those decisions may be reviewable under the Judicial Review Act 1991 by application to the Supreme Court.
[32]
The QIRC has limited jurisdiction. That is conferred by s 174B of the AD Act. It provides:

“174BFunctions of industrial relations commission

The industrial relations commission has the following functions—

(a)
in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act—

(i)
to make orders under section 144 before the complaints are referred to the tribunal; and

(ii)
to review decisions of the commissioner under section 169 about lapsing of the complaints; and

(iii)
to enforce agreements for resolution of the complaints by conciliation; and

(iv)
to hear and decide the complaints;

(b)
to grant exemptions from this Act in relation to work-related matters;

(d)
any other function conferred on the commission by this Act;

(e)
to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).”

[33]
By s 174B(a)(i) and (ii), the QIRC has jurisdiction to make orders under s 144 and review decisions made by the Human Rights Commissioner under s 169.
[34]
Section 144 provides:

“144Applications for orders protecting complainant’s interests (before reference to tribunal)

(1)
At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice—

(a)
the investigation or conciliation of the complaint; or

(b)
an order that the tribunal might make after a hearing.

(2)
A party or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order varying or revoking an order made under subsection (1).

(3)
If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.”

[35]
No party has made application under s 144.
[36]
Section 169 provides as follows:

“169Complaint may lapse if complainant loses interest

(1)
If the commissioner is of the reasonable opinion that a complainant has lost interest in continuing with a complaint, the commissioner must tell the complainant in writing that—

(a)
the complaint will lapse unless the complainant indicates that the complainant wishes to continue with it; and

(b)
if the complaint lapses, the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint.

(2)
If the complainant does not give the indication within 28 days, the complaint lapses, and the commissioner must write to the complainant and the respondent as soon as practicable to tell them that the complaint has lapsed.

(3)
Within 28 days of being notified that the complaint has lapsed, the complainant may apply to the tribunal to review the commissioner’s decision.

(4)
If the tribunal is satisfied that the complainant has a genuine interest in continuing with the complaint, the commissioner must resume dealing with the complaint.

(5)
The complainant can not make a further complaint relating to the act or omission that was the subject of the complaint.”

[37]
A complaint also “lapses” if it is rejected. For example, ss 139 and 142 provide as follows:

“139 Commissioner must reject frivolous, trivial etc. complaints

The commissioner must reject a complaint if the commissioner is of the reasonable opinion that the complaint is—

(a)
frivolous, trivial or vexatious; or

(b)
misconceived or lacking in substance.

142Reasons for rejected complaints

(1)
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.

(2)
If a complaint is rejected, the complainant may, within 28 days of receiving notice of the rejection, ask the commissioner for written reasons.

(3)
If requested, the commissioner must promptly give the complainant written reasons for the rejection.

(4)
To remove any doubt, it is declared that a reference in this section to rejecting a complaint includes a reference to deciding not to accept a complaint under section 137(1) or 138(2)(b).

(5)
In this section—

complaint includes a complaint mentioned in section 141A to the extent it relates to an out-of-time contravention.”

[38]
It is difficult to determine whether the letter of 8 February 2022 constitutes a decision to reject Mr Jin’s complaint. It purports to be a decision as relevant comments are made under a heading “Our decision”.^[19]However, under the heading “Next steps” the letter invites further submissions.^[20]
[39]
In any event, the QIRC does not have jurisdiction to review a decision concerning “lapsing of the complaints” other than a decision under s 169.^[21]
[40]
The Industrial Commissioner correctly held that the letter of 8 February 2022 was not a decision made under s 169(3). In particular:

there is no evidence that the Human Rights Commissioner wrote to Mr Jin in terms of s 169(1);
there is no evidence that the letter of 8 February 2022 purported to be a notification that the complaint had lapsed under s 169(2).

[41]
The letter of 8 February 2022 does not indicate that the Human Rights Commissioner considered Mr Jin’s complaint has lapsed through lack of interest, but rather that it has no substance.
[42]
Mr Jin’s complaint does not raise any of the matters mentioned in s 174B(b), (c), (d) or (e).
[43]
No error is shown in the Industrial Commissioner’s judgment. The QIRC has no jurisdiction to entertain Mr Jin’s application. The appeal should be dismissed.
[44]
Order:

Appeal dismissed.

Footnotes

[1]Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Or [2023] QIRC 013.

[2]Anti-Discrimination Act 1991, s 7(g).

[3]A reference to the Anti-Discrimination Act 1991, the Human Rights Act 2019 and the Public Interest Disclosure Act 2010.

[4]Anti-Discrimination Act 1991, s 174A; which appear at paragraph [9] of these reasons.

[5]Anti-Discrimination Act 1991, s 174B; which appears at paragraph [32] of these reasons.

[6]When read with s 174B.

[7]Which appears at paragraph [36] of these reasons.

[8]Sections 169(1) and (2).

[9]Section 169(3).

[10]Anti-Discrimination Act 1991, s 4, Schedule 1, Dictionary; definition of “Tribunal”.

[11]Anti-Discrimination Act 1991, s 4, Schedule 1, Dictionary; definition of “Tribunal” and see Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Or [2023] QIRC 013 at [12].

[12]Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Or [2023] QIRC 013 at [15]-[16].

[13]Two further grounds were sought to be added by Mr Jin. These do not concern jurisdiction.

[14]Anti-Discrimination Act 1991, s 134.

[15]Chapter 7, Part 1, Division 2.

[16]Chapter 7, Part 1, Division 3.

[17]Anti-Discrimination Act 1991, ss 141 and 143.

[18]Judicial Review Act 1991, ss 4 and 20 and see Griffith University v Tang (2005) 221 CLR 99.

[19]See the passage set out at paragraph [6] of these reasons.

[20]See the passage set out at paragraph [7] of these reasons.

[21]Anti-Discrimination Act 1991, s 174B(a)(ii).

Editorial Notes

Published Case Name:
Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Anor
Shortened Case Name:
Jin v State of Queensland (Department of Communities, Housing and Digital Economy)
MNC:
[2023] ICQ 10
Court:
ICQ
Judge(s):
Davis J, President
Date:
30 May 2023

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2023] QIRC 13	19 Jan 2023	-
Primary Judgment	[2023] ICQ 10	30 May 2023	-
Notice of Appeal Filed	File Number: CA 2704/25	30 Jun 2025	-

Appeal Status

Appeal Pending

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Griffith University v Tang	View on:JADE(2005) 221 CLR 99	2 citations Jump To Cite 1 - (2005) 221 CLR 99 Cite 2 - (2005) 221 CLR 99
Jin v State of Queensland (Department of Communities, Housing and Digital Economy)	[2023] QIRC 13	4 citations Jump To Cite 1 - [2023] QIRC 13 Cite 2 - [2023] QIRC 13 Cite 3 - [2023] QIRC 13 Cite 4 - [2023] QIRC 13

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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Jin v State of Queensland (Department of Communities, Housing and Digital Economy)[2023] ICQ 10