McAllister v Anti-Discrimination Commission Queensland
[2018] QIRC 120
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- Unreported Judgment
- McAllister v Anti-Discrimination Commission Queensland[2018] QIRC 120
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McAllister v Anti-Discrimination Commission Queensland[2018] QIRC 120
McAllister v Anti-Discrimination Commission Queensland[2018] QIRC 120
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McAllister v Anti-Discrimination Commission Queensland [2018] QIRC 120 |
PARTIES: | McAllister, Maricon Cruz (Applicant) v Anti-Discrimination Commission Queensland (Respondent) |
CASE NO: | AD/2018/46 |
PROCEEDING: | Application for orders |
DELIVERED ON: | 20 September 2018 |
HEARING DATE: | 21 August 2018 |
MEMBER: HEARD AT: | O'Connor DP Brisbane |
ORDER: |
|
CATCHWORDS: | ANTI-DISCRIMINATION – APPLICATION FOR ORDERS PROTECTING COMPLAINANT'S INTERESTS – whether the Queensland Industrial Relations Commission has power to prohibit the Acting Anti-Discrimination Commissioner from lapsing a complaint – where applicant alleges there is a real risk of actual or apprehended bias – statutory interpretation |
LEGISLATION: CASES: | Anti-Discrimination Act 1991 (Qld) s 144, Dillon v Anti-Discrimination Commission Queensland [1998] QADT 21 Finn v Minister for Education [1995] QADT4 Hastie v Ryan [2003] QADT 17 Ivory v Griffith University [1996] QADT 15 Jones v State of Queensland [2010] QCAT 700 K v N School [1995] QADT 16 McIntyre v Hastings Deering (Australia) Ltd [2012] QCAT 438 R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13 Transport Workers Union of Australia, Boss & Wood v Boral Resources (Qld) Pty Ltd [2006] QADT 10 |
APPEARANCES: | Ms K Gothard, of counsel, instructed by Worker Law, for the applicant Ms J Ball of the respondent |
Reasons for Decision
- [1]This matter concerns whether the Queensland Industrial Relations Commission (the Tribunal) has power to prohibit the Acting Anti-Discrimination Commissioner from lapsing a complaint. The effect of a lapse is to permanently end the complaint without a hearing on the merits.
- [2]On 8 February 2018, Ms Maricon Cruz McAllister (the applicant/complainant) filed a complaint about her employer and two colleagues with the Anti-Discrimination Commission Queensland (the respondent). The complaint was assessed as indicating alleged contraventions of Anti-Discimrination Act 1991 (Qld) (the Act), namely race discrimination in work;[1] and, an unlawful request for information.[2] The complaint was accepted by the respondent and the parties were notified.
- [3]A conciliation conference, held on 11 April 2018, proved unsuccessful. Afterwards, Ms McAllister made a formal complaint regarding the conduct of the conciliator (Mr Hongoh) and requested that the matter be referred to this Commission.[3]
- [4]On 30 May 2018 Ms Julie Ball, Principal Lawyer of the ADCQ, wrote to the parties in accordance with s 168 detailing that she was of the reasonable opinion that the complaint was misconceived or lacking in substance. As Principal Lawyer, Ms Ball had the delegated authority under s 244 to exercise the powers, duties and functions under s 168. Section 168 provides that the complainant has 28 days to satisfy the Commissioner that the complaint is not misconceived or lacking in substance otherwise the complaint will lapse.
- [5]Pursuant to s 144, the applicant now seeks the following order from this Commission:
- (a)the Acting Anti-Discrimination Commissioner or any delegate be prohibited from lapsing Complaint BNE34138, by the Applicant against Ms Renee Shahjahan, Mr Royce Cleaver and Stay Centro Pty Limited under section 168 of the Anti-Discrimination Act 1991 (Qld), or at all;
- [6]The respondent resists the application primarily on the ground that the Tribunal lacks jurisdiction to grant the relief sought.
- [7]As it stands, the Commissioner is yet to make a decision pursuant to s 168.
The attitude of the respondent
- [8]Consistently with the principles set out in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors the respondent did not propose taking an active part in the proceedings and would not provide submissions in support of the preliminary decision.[4] However, the respondent provided valuable assistance in drawing the Tribunal's attention to the relevant statutory provisions and authorities.
The statutory framework
- [9]The purpose of the Act is set out in s 6, which relevantly provides:
6 Act's anti-discrimination purpose and how it is to be achieved
One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.
…
- [10]Section 144 allows for the complainant or the Commissioner to apply to the Tribunal for an order protecting the interests of the complainant. It is in the following terms:
144 Application for orders protecting complaint'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.
- [11]Section 164A describes the circumstances when a complainant can seek referral to the Tribunal. It is in the following terms:
164A Right of complainant to seek referral to Tribunal after conciliation conference
(1) This section applies if—
(a) a conciliation conference has been held under division 3 in relation to a complaint; and
(b) the complaint has not been resolved by conciliation.
(2) This complainant may give the commissioner a written notice requiring the commissioner to refer the complaint to–
…
(3) The Commissioner must promptly –
(a) refer the complaint to the Tribunal; and
(b) give the respondent a copy of the complaint.
(4) However, the commissioner is not required to act under subsection (3) if the commissioner decides to act under section 168 in relation to the complaint.
(emphasis added)
- [12]The Commissioner may, pursuant to s 168, lapse certain matters:
168 Frivolous etc. complaint lapses
(1) This section applies if, at any time after a complaint is accepted and before it is referred to the Tribunal, the commissioner is of the reasonable opinion that the complaint is—
(a) frivolous, trivial or vexatious; or
(b) misconceived or lacking in substance.
(2) The commissioner must tell the complainant in writing that, unless the complainant is able to show to the commissioner’s satisfaction within 28 days that the complaint is not frivolous, trivial, vexatious, misconceived or lacking in substance—
(a) the complaint will lapse; 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.
(3) If, at the end of 28 days, the commissioner is of the reasonable opinion that the complaint is—
(a) frivolous, trivial or vexatious; or
(b) misconceived or lacking in substance;
the commissioner must write to the complainant and respondent as soon as practicable to tell them that the complaint has lapsed.
(4) The complaint then lapses, and the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint.
- [13]The functions conferred on this Tribunal under the Act are set out in s 174B:
174B Functions 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 Ac—
(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;
(c) to provide opinions about the application of 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).
- [14]Section 174B enumerates the functions of the Tribunal. It mirrors similar provisions in relation to the functions of QCAT under s 174A.
Submissions
- [15]Broadly, the applicant makes a number of submissions in this matter, the first of which is:
- (a)Section 168 is broader than a form of "summary judgment" as no further action is able to be taken by the respondent before this Tribunal after the complaint is lapsed. As there are still factual matters in dispute between the parties the matter should not be lapsed, and the Commissioner, in moving to lapse the matter, may be straying into the realm of apprehended bias.
- [16]The other submissions of the applicant are framed as responses to the submissions of the respondent. By way of summary, those submissions, as framed by the applicant, are as follows:
- (b)Section 144 orders are a review of the Commissioner's decision to act under s 168. Such an order would be beyond the power of the Tribunal.
- (c)The Commissioner is not a "person" for the purposes of s 144.
- (d)The construction of s 144, to allow an order against the Commissioner would be an absurdity.
- (e)Section 144 orders are interim in nature.
- [17]Submissions (a) through (e) will be dealt with in turn below, and thereafter the various uncategorised submissions made the applicant.
- (a)Section 168, "summary judgment", and apprehension of bias
- [18]The applicant submits that a lapse under s 168 will, in this matter, effectively preclude any further conduct relating to Ms McAllister's complaint. Putting s 144 and its operation to one side, a lapse under s 168 ends proceedings and precludes same-fact proceedings from arising after the lapse. That prohibition extends beyond the ADCQ to applications made by dismissed workers for industrial relief sought from this Tribunal after the complaint to the ADCQ is accepted.[5] However, industrial relief can be sought from this Tribunal, in tandem with the filing of an ADCQ complaint, by a dismissed worker if the industrial relief is sought prior to the complaint being accepted.[6]
- [19]Section 168 enables the Commissioner to filter complaints from the system which are frivolous, trivial, vexatious, misconceived, or lacking in substance. The likening of s 168 as effecting a "summary judgment" is a mischaracterisation given that it is more akin to a "show cause" process as it gives the complainant an opportunity to show why the complaint should not be lapsed.
- [20]Given the nature of s 168, the applicant contends that the complaint should not be lapsed because there are factual matters in dispute. In furtherance of this particular submission the applicant also indicated that the Commissioner, in acting to lapse the matter, has acted partially by deciding the "factual version of the events by preferring the statement of the Respondents to that of the [applicant]." If that is the case, and there was no evidence produced to support that view, then it is properly a matter for judicial review, once the Commissioner has made a decision, and not this Tribunal.
- (b)The powers of the Tribunal and section 144 as a review of section 168
- [21]Section 174B(a)(ii), which sets out the functions of this Tribunal, provides an explicit right of review of the decision of the Commissioner to lapse a matter if the Commissioner is of the reasonable opinion that the complainant has lost interest in continuing with a complaint. The Commissioner relies on that explicit power to highlight the absence of a similar provision to allow a review of a decision to lapse a complaint under s 168. Indeed, there are many other functions of the Commissioner that are not reviewable by the Tribunal.[7]
- [22]The respondent's submission, while correct, does not go the issue of whether this Tribunal may make a s 144 order to prevent the lapsing of the complaint. I accept that there is no power for this Tribunal to review a decision under s 168. However, in this matter, the Commissioner has yet to make a decision.
- [23]Section 174B only confers power on the Tribunal to review decisions of the Commissioner made under s 169 and, in my view, this shows a clear intent by Parliament to limit the review powers to circumstances where the Commissioner is of the reasonable opinion that a complainant has lost interest in continuing with a complaint.[8]
- [24]In addressing whether s 144 acts as a "review" of the Commissioner's decision to act, the applicant also questioned whether the forming of the "reasonable opinion" by the Commissioner under s 168 was something that could be delegated.
- [25]The applicant submits that while s 244 permits the Commissioner to delegate power, it is contended that the forming of a "reasonable opinion" under s 168, in and of itself, is not a power that may be delegated.[9]
- [26]However, s 27A(1) of the Acts Interpretation Act 1954 (Qld) provides that, if an Act authorises a person to delegate a function or power, the function or power may be delegated to a person by name, or the delegation may be to the holder of a specified office by reference to the title of the office concerned.
- [27]Further, sections 27A(8) and 27A(9)(b) respectively provide:
If, when performed or exercised by the delegator, a function or power is dependent on the delegator’s opinion, belief or state of mind, then, when performed or exercised by the delegate the function or power is dependent on the delegate’s opinion, belief or state of mind.[10]
…
the function or power may be performed or exercised by the person for the time being occupying or acting in the office concerned. time to time occupying or acting in the office concerned.[11]
- [28]I am satisfied that the Commissioner is able to delegate the forming of an opinion under s 168.
- (c)Whether the Commissioner is a person for section 144
- [29]Section 144 provides recourse for a complainant where there is a risk that a person might do an act that might prejudice the complaint. The applicant submits that reference to "a person" in s 144(1) is wide enough to encompass the Commissioner. In response, the respondent directed the Tribunal's attention to the decision of Dillon where the President of the Anti-Discrimination Tribunal Queensland discussed the ambit of s 144:
I do not agree with Mr Rangiah's submissions that the term "a person" is wide enough to encompass the Commissioner. The consequence of this contention would be that an independent statutory office holder could prejudice an investigation.
I am therefore firmly of the view that s.144 does not provide the Tribunal with jurisdiction to review the decision of the Commissioner.[12]
- [30]The respondent submits that s 144, read in the context of the Act as a whole, shows that it is not the intention of the legislature that an order would be made against the Commissioner, nor that the power extended to a review, or a quasi-review, of decisions of the Commissioner.[13] I agree.
- [31]Section 144 falls within Chapter 7, Part 1 "What the Anti-Discrimination Commission may do". The six sections preceding s 144 all relate to various powers and obligations conferred on the Commissioner in relation to dealing with complaints.[14] It would be extraordinary if s 144 provided recourse for a complainant to prevent the Commissioner from exercising its statutory duty. If the legislature had intended to give the Tribunal a supervisory function over the ADCQ and the Commissioner, it would have been made clear. It would also have been provided for in section 174B.
- (d)Section 144 orders against the Commissioner
- [32]The Commissioner submits that if s 144 is read to include the Commissioner as a "person" then it would allow the Commissioner to seek an order against herself. That, it is submitted, is an absurd result. I agree.
- (e)Section 144 orders are interim in nature
- [33]It is argued by the applicant that in making an order under s 144, the Tribunal has traditionally applied the tests applicable to interlocutory injunctions. However, it is also contended that in doing so, the Tribunal ought not consider an order under s 144 as interim "until the applicant's complaint has been heard or 'until further order' ". But as Wilson J points out in McIntyre v Hastings Deering (Australia):
The discretion to make an order under s 144 is also to be exercised in a way which recognises that it is intended, primarily, to protect the interests of the complainant before reference of the complaint to this Tribunal.[15]
- [34]The applicant submits that in making an order under s 144 the Commissioner would not be prevented from performing its statutory functions but it would merely hold the Commissioner accountable in certain circumstances, the example being, a circumstance where there is a risk of real or apprehended bias on the part of the Commissioner. That submission is, of course, the antithesis of what the applicant seeks. The order sought by the applicant seeks to prevent the Commissioner from lapsing the complaint under s 168. That, however, as recognised by Wilson J,[16] is not intended purpose of s 144.
Other submissions
- [35]Section 168 operates before a complaint is referred to the Tribunal and in circumstances where the Commissioner forms a reasonable opinion that the complaint is frivolous, trivial or vexatious; or misconceived or lacking in merit. Unless the complainant is able to show to the Commissioner's satisfaction within 28 days that the complaint is not frivolous, trivial, vexatious, misconceived or lacking in substance then the complaint will lapse.
- [36]Section 164A(4) provides that if the Commissioner decides to act under s 168 then there is no requirement to promptly refer the complaint to the Tribunal and give the respondent a copy of the complaint.
- [37]The applicant is opposed to allowing the Commissioner to make a final decision because as stated in paragraph 13 of the application, "the lapsing of the complaint has the apprehension of bias and/or is otherwise an abuse of process, as the decision is conduct that is outside of the delegated legislative power of the decision maker".
- [38]The applicant takes issue with the fact that the Commissioner, being the person who formed the opinion under s 168 that the complaint was misconceived or lacking in substance, is the same person who will assess the reasonableness of that opinion when lapsing the Complaint.[17] The applicant further submits:
As the same person appears to be, in effect, the "check and balance" and self-assessor of her own actions, albeit at times in the name of the Commissioner, it is submitted it is appropriate the Tribunal have scope to assess the Commissioner's acts and, if necessary, make orders under section 144 of the Act. This is particularly so in this instance as it would be difficult to apprehend how the delegated decision maker could form a "reasonable opinion" in the face of her conflicting roles.[18]
- [39]The apparent apprehension of bias is based upon the argument that the decision maker is in a position in which she is on the one hand to form the reasonable opinion, and then "self-assess" the reasonableness of that opinion. The applicant again makes reference to an apparent apprehension of bias without an evidentiary basis for doing so. This submission is without merit as what is proposed to be undertaken by the respondent is a reflection of what is required to be done under s 168.
- [40]As I indicated above, if the decision-making process undertaken by the respondent in assessing the complaint miscarries then the appropriate avenue for redress is judicial review.
- [41]With respect to the applicant's attitude towards judicial review, two submissions were made. The first is that it would be premature because the Commissioner is yet to make a decision. However, the applicant accepts that once a decision is made by the commissioner regarding the complaint then it properly comes within the realm of judicial review.[19] The second is that judicial review is not appropriate because it is "very expensive and very delayed, and it's not reasonable – or necessarily a viable recourse in this instance, given that the applicant's interests are capable of protection under section 144".[20]
- [42]A judicial review application might well be premature but that does not provide a basis for expanding the scope of s 144. Nor is there merit in the argument that reference can be had to s 144 because judicial review is expensive or protracted.
Conclusion
- [43]In McIntyre v Hastings Deering (Australia) Ltd, Wilson J observed:
The consideration of those questions occurs within the ambit of a provision which, on its face, involves the exercise of a wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling processes provided under the ADA to be effectively pursued, and to maximise the opportunity for its objectives to be achieved. Those objectives include protection from unfair discrimination; the investigation of complaints in which discrimination is alleged; and, if the commissioner believes resolution by conciliation is possible, attempts to do so.[21]
- [44]As his Honour noted, the discretion to make an order under s 144 is to be exercised in a way that recognises that it is primarily intended to protect the interests of the complainant before reference of the complaint to the Tribunal.[22]
- [45]The jurisprudence cited by the respondent involves examples where a complainant has sought an order under s 144 in circumstances where a party wishes to prevent another from affecting the status quo, adversely to the applicant, pending final adjudication of the matter. Orders under s 144 have been granted to:
- retain the complainant's enrolment in a school;[23]
- preserve a complainant's job by prohibiting compulsory retirement on the basis of age;[24]
- prohibit a school from refusing to accept an enrolment for the following year;[25]
- prohibit an employer from transferring a complainant from her workplace;[26]
- prohibit an employer from requiring the complainant to attend medical assessments, from disciplining the complainant for not attending medical assessments, and from terminating employment for not attending medical assessments;[27]
- prohibit an employer from exercising powers relating to medical retirement under the Public Service Act 2008;[28]
- [46]However, this application does not seek a preservation of the status quo pending final adjudication. Rather, it seeks to interfere in the exercise of a statutory function of the Commissioner. Namely, to prevent the Commissioner from further considering the complaint under s 168.
- [47]Even if relevant, no submissions have been made which demonstrate to me that the Commissioner has exhibited conduct that would constitute bias or apprehended bias.
- [48]Lastly, it is not possible for a complainant to continue prosecuting their matter after it has been rejected by the Commission other than by way of judicial review proceedings in the Supreme Court. The statutory scheme relfects an intent of the legislature to limit avenues of appeals from a decision of the Commissioner under s 168 and to increase the Commission's ability to vet unmeritorious complaints. In my view the applicant is attempting to impermissibly circumvent the statutory process of s 168.
- [49]I am of the view that the Tribunal does not have the power to grant the order sought. The application must be dismissed.
Order
- Application dismissed
Footnotes
[1] Anti-Discrimination Act 1991 (Qld) s 15.
[2] Ibid s 124.
[3] Ibid s 164A.
[4] R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13, 35-36.
[5] Anti-Discrimination Act 1991 (Qld) s 153.
[6] Ibid s 154
[7] Ibid ss 134(1)(c), 137, 138, 139, 140, 141, 145, 156, s 160, s 163, s 168A, 171, 172.
[8] Ibid s 169(1).
[9] Submissions of the Applicant, [45].
[10] Acts Interpretation Act 1954 (Qld) 27A(8)
[11] Ibid 27A(9)(b).
[12] Dillon v Anti-Discrimination Commission Queensland [1998] QADT 21, [6.1.1.4(a)].
[13] Submissions of the Respondent, [28].
[14] Anti-Discrimination Act 1991 (Qld) ss 138, 139, 140, 141, 142.
[15] [2012] QCAT 438, [15].
[16] Ibid.
[17] Submissions of the Applicant, para 47-48.
[18] Submissions of the Applicant, para 51.
[19] T-16, Ll 29-30.
[20] T1-29, Ll 40-45.
[21] [2012] QCAT 438, [14].
[22] Ibid [15].
[23] Finn v Minister for Education [1995] QADT 4.
[24] Ivory v Griffith University [1996] QADT 15.
[25] K v N School [1995] QADT 16.
[26] Hastie v Ryan [2003] QADT 17.
[27] Transport Workers Union of Australia, Boss & Wood v Boral Resources (Qld) Pty Ltd [2006] QADT 10.
[28] Jones v State of Queensland [2010] QCAT 700.