Exit Distraction Free Reading Mode
- Selected for Reporting
[2022] QSC 277
This case considered whether s 136 Anti-Discrimination Act 1991 empowers the Queensland Human Rights Commissioner not to accept a complaint. The applicant was an Aboriginal man diagnosed with gastric cancer whilst in prison, whose application for exceptional circumstances parole was refused. He subsequently lodged related complaints under the Anti-Discrimination Act 1991(“AD Act”) and the Human Rights Act 2019 with the respondent Human Rights Commissioner. After the Commissioner purportedly decided not to accept the complaint under s 136 of the AD Act, the applicant sought judicial review. Williams J found that s 136 of the AD Act specifies the formal or jurisdictional requirements for a complaint under the AD Act but does not empower the Commissioner not to accept a complaint.
Williams J
9 December 2022
Background
The applicant, an Aboriginal man, was diagnosed with gastric cancer whilst in prison. [2]. He applied for exceptional circumstances parole to allow him to receive culturally appropriate health care in the community, but the Parole Board refused his application. [2]–[4]. He later lodged related complaints under the Anti-Discrimination Act 1991 (“AD Act”) and the Human Rights Act 2019 (“HR Act”) with the respondent Human Rights Commissioner (“Commissioner”). [1], [4].
Initially, the Commissioner’s delegate refused to accept either complaint. [6]. However, following an internal review, the Commissioner decided to accept the complaint under the HR Act, but not to accept the complaint under the AD Act. [6]. The decision not to accept the latter complaint was expressed as having been made under s 136 of the AD Act, apparently on grounds that the complaint did not set out reasonably sufficient details to indicate an alleged contravention of the Act. [6], [9]–[16].
The applicant in turn sought judicial review of the Commissioner’s decision under s 20 of the Judicial Review Act 1991 (“JR Act”). [7]. Relevantly for present purposes, ground 5 of the application alleged that the decision involved an error of law, in that it applied an incorrect interpretation of provisions of the AD Act including s 136. [7]. Ground 4 of the application alleged that the Commissioner’s decision was unlawful for the purposes of s 58 of the HR Act. [7].
Ground 5: s 136 of the AD Act
After considering s 136 of the AD Act in accordance with the accepted principles of statutory construction, Williams J explained that the section identifies the formal or jurisdictional requirements of a complaint but does not identify any power in the Commissioner with respect to a complaint. [70]. While it would therefore be open to the Commissioner to apply for a declaration that a complaint did not comply with the jurisdictional requirements of s 136, the provision itself did not provide a basis for the Commissioner not to accept a complaint. [75].
In the instant case the Commissioner appeared to have evaluated the complaint to determine whether there was an irredeemable defect in the chain or reasoning or logic in the complaint. [84]. The power to undertake that exercise lies in s 139 of the AD Act, not s 136. [84]. Whilst a decision under s 139 of the AD Act is one to which the JR Act applies, the same could not be said for a decision purportedly made under s 136 of the Act. [86]–[87]. That was not a decision made or required to be made under an enactment. [87]. Accordingly, the Commissioner’s decision was not reviewable under the JR Act. [87].
Ground 4: s 58 of the HR Act
The finding that the JR Act did not apply to permit a review of the decision not to accept the complaint under the AD Act did not affect the validity of the application for relief under the HR Act, notwithstanding that s 59 of the HR Act does not permit an application in its own right. [93]–[98]. In theory, s 59(2) of the HR Act permitted that ground of the application to continue despite the finding that the JR Act did not apply. [99]–[100]. However, her Honour considered that there was no utility in considering the ground where the decision of the Commissioner was beyond power. [101]–[110].
Disposition
As declaratory relief and an order setting aside the Commissioner’s decision had not been addressed by the parties, her Honour determined to hear from the parties before making final orders. [89], [111].
B McNamara