Here, Martin J considers the application of s 139 Anti-Discrimination Act 1991 which provides that the Anti-Discrimination Commissioner power “must reject a complaint if the commissioner is of the reasonable opinion that the complaint is … (b) misconceived or lacking in substance”. His Honour rejected the applicant’s contention that “a high standard of certainty is required to meet the ‘misconceived or lacking in substance’ test”. Rather his Honour held that a consideration of the text of s 139 demonstrates that no higher standard than that a reasonable opinion can be formed is required.
11 December 2017
This matter concerned four applications for judicial review of decisions to reject complaints made about alleged discrimination to the Anti-Discrimination Commission of Queensland. . The applicants, two brothers, claimed that they had been discriminated against on the basis of their race and religion, during and subsequent to them being employed as interns at the Princess Alexandra Hospital. .
The primary complaint of the applicants was that the Anti-Discrimination Commissioner had applied the wrong test in deciding to dismiss the complaints under s 139 of the Anti-Discrimination Act 1991. . Section 139 provides that 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”.
The Commissioner in each case formed the view that the complaint was misconceived or lacking in substance.
The applicants argued that the standard to be applied was “high” and “should be seen as being analogous to striking out a claim or giving summary judgment”. . They put their case on three bases: (i) similar language was used in the O 22 r 31 of the repealed Rules of the Supreme Court 1991, which allowed for the striking out of pleadings and was in force at the time the Act came into force; (ii) the placement of the words “misconceived or lacking in substance” after the less strong “frivolous” or “vexatious”; and (iii) the intent behind s 139.
None of these provided support for the applicants’ case. As for (i), Martin J noted that the “analogy [was] difficult to see”, particularly because O 22 r 31 was not meant to take the place of a demurrer in which the facts averred in the pleading are taken to be admitted – here “the Commissioner is to proceed under s 139 as if the allegations were established”. . His Honour also rejected any argument that (ii) provided support for the applicants’ case as circular, stating that “[t]he mere proximity of one set of words to another – without more – cannot confirm a proposition that a high standard of certainty is required”.
Finally, in respect of (iii), his Honour noted that all the Commissioner needed to form was the “reasonable opinion” that the complaint was misconceived or lacking in substance. . His Honour explained that the “Act does not impose upon the formation of that opinion any higher barrier than that the opinion be ‘reasonable’.” . His Honour, concluding on this aspect of the case, said:
“Consideration of s 139 demonstrates that the test which is to be applied is that of whether or not a reasonable opinion can be formed that a complaint comes within one of the legs in s 139. The standard to be applied is no higher than that. To do, as the applicants suggest, would be to coat s 139 with an impermissible gloss.” .
Applying the correct standard his Honour held that two of the applications ought to be allowed, and the decisions to reject the complaints set aside. –. In setting aside those decisions, his Honour stated:
“Section 139 does not provide for the rejection of weak cases – which this case may well be – but only those which come within the category sometimes described as ‘hopeless’.” .
The remaining two applications were dismissed.