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The applicant had made two separate complaints to the Anti-Discrimination Commission (later the Human Rights Commission), however both complaints were made well outside the relevant statutory time limit. The first respondent decided to accept one of the complaints but refused to accept the other. The applicant sought judicial review of the decision. The key question before the Court was whether the discretion under s 138 of the Anti-Discrimination Act 1991, to reject or accept complaints under the Act made out of time was limited to accepting or rejecting all allegations of contravention made in a complaint. Davis J concluded that it was not.
31 March 2021
In 2011, the applicant, Ms Ryle, who was then employed at the Department of Justice and Attorney-General (“DJAG”), made a public interest disclosure in relation to a bail program being run by her colleague. . On 1 February 2019, Ms Ryle made a complaint of reprisal contrary to the Public Interest Disclosure Act 2010 (the “PID Act”). . Ms Ryle alleged that a colleague had spread exaggerated allegations of criminal conduct against her in the workplace as reprisal for that disclosure which had resulted in her suffering a psychiatric injury. –.
As a result of events that occurred in 2014, on 27 February 2019, Ms Ryle lodged a second complaint of impairment discrimination contrary to the Anti-Discrimination Act 1991 (the “AD Act”).
Both complaints were directed to the Anti-Discrimination Commission but were made after the exhaustion of the relevant statutory time limit. .
The reprisal complaint was accepted by the first respondent acting as the delegate of the Anti-Discrimination Commissioner. . However, the complaint of impairment discrimination was rejected by the first respondent acting as the delegate of the Human Rights Commissioner on the basis it was out of time. . Ms Ryle sought judicial review of the decision to reject the complaint of impairment discrimination. .
The discretion under s 138 Anti-Discrimination Act 1991
It was accepted that the decision of the first respondent was a “decision under an enactment” and that the applicant was a “person aggrieved” by the decision. Therefore, the only issue before the Court was whether the applicant had established a ground of judicial review pursuant to s 20 of the Judicial Review Act 1991 (the “JR Act”). .
Davis J accepted that Ms Ryle had made the impairment discrimination complaint with the Anti-Discrimination Commission after the Commission advised her that a separate complaint ought to be made in relation to the impairment discrimination. , . The respondents also accepted that, despite there having been two separate complaints made, the first respondent’s decision to accept the reprisal complaint but reject the later impairment discrimination complaint constituted an error of law if Ms Ryle’s construction of s 138 AD Act was correct. .
Ms Ryle submitted that the discretion under s 138 AD Act is to accept or not accept a “complaint”, and that the definition of “complaint” is the entire document the contents of which are prescribed by s 136 and which initiates the processes of Ch 7. Therefore, the “complaint” is the document containing allegations. However, the allegations themselves are not the “complaint”. . In other words, Ms Ryle submitted that there exists a distinction between the “complaint” (which must be the document lodged) and the “contravention” which is the breach of the AD Act alleged in the “complaint”. Therefore, having accepted the initial reprisal allegations beyond time, the impairment allegations necessarily had to be accepted as they were part and parcel of the same “complaint”. , .
Davis J considered that, the “obvious” purpose of ss 138 and 139 is to “exclude the litigation of allegations that are lacking in merit or where circumstances are such that a complaint cannot be fairly litigated”. . His Honour observed that if Ms Ryle’s construction of s 138 was accepted, then the term “complaint” would have the same meaning in s 139 as it does in s 138. It would then follow that the Commissioner’s powers under s 139 are limited to rejecting the complaint as a whole or rejecting none of it. .
His Honour went on to note that in respect of s 139, Ms Ryle’s construction would yield “even odder results” because if contained in the document there are allegations that are frivolous, trivial or vexatious, then a discretion would arise to reject other claims made in the same document that are arguably potentially valid claims. . Moreover, his Honour pointed out that a further difficulty with Ms Ryle’s construction is the fact that different allegations of contraventions of the AD Act made in the one complaint document may give rise to different rights in different parties which was particularly the case in this application. .
Justice Davis considered that contraventions of the AD Act do not trigger the powers of the Ch 7 until they are acted upon by the complainant. They are acted upon when a complaint is made. Therefore, the complaint is a complaint of contravention of the AD Act. . Accordingly, Davis J considered there was no reason to assume the legislative intention was to limit the discretion created by ss 138 and 139 to rejecting or accepting all allegations of contravention which may be complained of in the one document lodged with the Commissioner. . Therefore, the delegate was correct to approach the exercise of discretion in relation to the reprisal complaint separately to the exercise of the discretion in relation to the second impairment discrimination complaint. . As such, there was no error of law demonstrated. .