NTSC 78 Hil1814 Lavery v Anti-Driscrimination Commissioner ...

CITATION: Lavery v Anti-Discrimination Commissioner & Anor [2018] NTSC 78

PARTIES: LAVERY, Priscilla v THE NORTHERN TERRITORY ANTI-

DISCRIMINATION COMMISSIONER and NORTHERN TERRITORY OF

AUSTRALIA TITLE OF COURT: SUPREME COURT OF THE

NORTHERN TERRITORY JURISDICTION: SUPREME COURT exercising Territory

jurisdiction FILE NO: 8 of 2018 (21806857) DELIVERED: 13 November 2018 HEARING DATE: 25 June 2018 FURTHER SUBMISSIONS: 6 and 13 July and 27 August 2018 JUDGMENT OF: Hiley J CATCHWORDS: ADMINISTRATIVE LAW – Judicial Review – Anti-discrimination – Complaint by a person aggrieved under s 60(a) of the Anti-Discrimination Act 1996 (NT) – Acceptance Stage – complaint declined under s 67(d) of the Anti-Discrimination Act 1996 (NT) ADMINISTRATIVE LAW – Judicial Review – Anti-discrimination – Complaint – complaint declined under s 67(d) of the Anti-Discrimination

2

Act 1996 (NT) where the Commissioner reasonably believes that the complaint fails to disclose prohibited conduct – what is involved in the judicial review of the Commissioner’s reasonable belief ADMINISTRATIVE LAW – Judicial Review – Natural Justice – no requirement to seek further information or submissions from a person making a complaint under s 60(a) of the Anti-Discrimination Act 1996 (NT) where decision maker not relying upon information that was not provided by the complainant before declining the complaint under s 67(d) – no requirement to afford the complainant the opportunity to amend the complaint STATUTORY INTERPRETATION – meaning of “on the basis of an attribute” in the context of s 20(1) of the Anti-Discrimination Act 1996 (NT) – requires causal nexus between the conduct and the attribute STATUTORY INTERPRETATION – meaning of “because of an attribute” in the context of s 24 of the Anti-Discrimination Act 1996 (NT) – requires causal nexus between the special need and the attribute DISCRIMINATION LAW – Anti-Discrimination Act 1996 (NT) – prohibited conduct – discrimination by harassment on the basis of an attribute – s 20(1) – whether the attribute of parentage as a foster carer was a sufficient link DISCRIMINATION LAW – Anti-Discrimination Act 1996 (NT) – prohibited conduct - failure to accommodate a special need that another person has because of an attribute – s 24 – whether the attribute of parentage as a foster carer was a sufficient link DISCRIMINATION LAW – Anti-Discrimination Act 1996 (NT) – processing of complaints – complainant to provide detail of complaint when making the complaint Anti-Discrimination Act 1996 (NT) s 4, s 5, s 20, s 28, s 24, s 60, s 64, s 65, s 66, s 66A, s 66D, s 67 Disability Discrimination Act 1992 (Cth) s 5 Interpretation Act (NT) s 62A Health Practitioner Regulation National Law 2009 (QLD) s 150, s 151

3

Justice Legislation Amendment Act 2015 Legal Profession Act 2006 (NT) s 477, s 478 Mining Act 1978 (WA) s 74 George v Rockett [1990] HCA 26; 170 CLR 104; Hofer v Anti-Discrimination Commissioner [2011] NTSC 20; 28 NTLR 154; Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301; Martin v McGowan, McCue and Anti-Discrimination Commissioner [2001] NTMC 63; Prior v Mole [2017] HCA 10; 343 ALR 1; Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 – applied Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; Anning v Batchelor Institute of Indigenous Territory Education [2007] NTADC 1; Attorney-General (NSW) v Quinn [1990] HCA 21; 170 CLR 1; Bernadt v Medical Board of Australia [2013] WASCA 259; Bruce v Cole (1998) 45 NSWLR 163; Brereton v Minister for Immigration and Ethnic Affairs (1995) 35 ADL 378; Commissioner for Revenue (ACT) v Alphaone Pty Ltd (1994) 49 FCR 576; 127 ALR 699; Commonwealth v Baume [1905] HCA 11; 2 CLR 405; Coppa v Medical Board of Australia (2014) 34 NTLR 74; Director General of Education v Breen (1982) 2 IR 93; Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33; Foley v Padley [1984] HCA 50; 154 CLR 349; Kioa v West [1985] HCA 81; 159 CLR 550; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Nitschke v Medical Board of Australia (No. 1) [2015] NTSC 39; 36 NTLR 55; Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144; Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Re Minister for Immigration & Multicultural Affairs; Ex pare Applicant S20/2002 (2003) 198 ALR 59; R v Connell; Ex parte Hetton Bellbird Colleries Ltd (1944) 69 CLR 497; Sean Investments Pty Ltd v MacKellar [1981] FCA 191; 38 ALR 363; Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247; State of Victoria (Office of Public Prosecutions) v Grant

4

[2014] FCAFC 184; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Varas v Fairfield City Council [2008] FMCA 996; Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 – referred to. REPRESENTATION: Counsel: Plaintiff: Self represented First Defendant: T Keys Second Defendant: L Peattie Solicitors: Plaintiff: Self represented First Defendant: Northern Territory Anti-Discrimination

Commission Second Defendant: Solicitor for the Northern Territory Judgment category classification: B Judgment ID Number: Hil1814 Number of pages: 57

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Lavery v Anti-Discrimination Commissioner & Anor [2018] NTSC 78

No. 8 of 2018 (21806857)

BETWEEN: PRISCILLA LAVERY Plaintiff AND: THE NORTHERN TERRITORY

ANTI-DISCRIMINATIONER COMMISSION

First Defendant AND: NORTHERN TERRITORY OF

AUSTRALIA Second Defendant CORAM: HILEY J

REASONS FOR JUDGMENT

(Delivered 13 November 2018)

Contents Introduction ............................................................................................. 3

Relevant background ................................................................................ 5

The Complaint ................................................................................... 5

What was the plaintiff complaining of? ............................................... 7

2

The Reasons .................................................................................... 12

Grounds of review .................................................................................. 13

Legislative context ................................................................................. 17

Processing and assessment of complaints .......................................... 20

Grounds 1 and 2a – not disclose prohibited conduct ................................. 24

Reasonable belief ................................................................................ 26

Disclosure of prohibited conduct ......................................................... 30

Prohibited grounds of discrimination – ss 19 and 20 .......................... 31

Failure to accommodate a special need – s 24 ................................... 34

Plaintiff’s Submissions ....................................................................... 36

Discrimination by harassment .......................................................... 38

Failure to accommodate special need ................................................ 42

Further submissions ......................................................................... 44

Conclusions ........................................................................................ 47

Discrimination – s 20 ....................................................................... 47

Failure to accommodate a special need – s 24 ................................... 49

Ground 2(b) – declined complaint too early ............................................. 50

Ground 3 – denial of natural justice ........................................................ 52

Disposition ............................................................................................ 56

3

Introduction

[1] The plaintiff was a volunteer foster carer registered with the

Department of Territory Families (TF) between approximately 2013

and June 2017. On 5 February 2016 she began caring for a foster

child, CM, then aged three years and 10 months.

[2] The plaintiff made a number of requests and complaints to TF

concerning the support that she considered TF should have been

providing to her and CM. On 8 June 2016 the plaintiff was informed

by a case worker at TF that there had been a complaint against her

regarding her supervision of CM.1 On 17 November 2016, TF received

a report outlining concerns for CM’s welfare while in the plaintiff’s

care.2 The plaintiff says that TF conducted an investigation concerning

the plaintiff’s capacity as a carer in November 2016 without her

knowledge.3 This apparently included a two-day hearing on 23–

24 November. 4 Officers of TF met with the plaintiff on about

27 November 2016 to discuss the concerns raised in the report that had

been received on 17 November 2016.5

[3] On 17 February 2017 TF officers advised the plaintiff that a complaint

had been made against her concerning her care for CM, and that the

1 Book of Materials Considered (BMC), p 60 [26].

2 BMC, p 41.

3 BMC, p 62 [38].

4 BMC, p 63 [41].

5 BMC, pp 10, 14, 41 and 63.

4

complaint had been investigated and substantiated. She was told that

CM would be removed from her care and that a transition plan would

be put into place.6

[4] At the plaintiff’s request, TF undertook an internal review of its

handling of the matter, which affirmed the decision to remove CM

from the plaintiff’s care.7 TF also undertook a review of the plaintiff’s

authorisation as a foster carer pursuant to the Care and Protection of

Children (Placement Arrangement) Regulations and the CEO revoked

the plaintiff’s authorisation on about 30 June 2017.8 On 4 August 2017

the plaintiff wrote to TF contending that TF had denied her procedural

fairness in relation to the revocation of her authorisation as a foster

carer and requesting that the revocation be set aside. TF responded on

18 August advising that the review of the TF process found it was

reasonable and advising her of her right to contact the Ombudsman.

[5] On 11 December 2017 the plaintiff lodged a complaint with the

Northern Territory Anti-Discrimination Commissioner, the first

defendant (the Complaint). On 18 December 2017 the

Commissioner’s delegate (the Delegate) advised the plaintiff that she

had decided not to accept the Complaint (the Decision) and provided

written reasons (Reasons) for the Decision. By Originating Motion

6 BMC, p 13.

7 BMC, pp 10 – 14.

8 Plaintiff affidavit affirmed 7 February 2018 at [2].

5

and Summons filed 8 February 2018 (the Application) the plaintiff

sought judicial review of the Decision, seeking to have the Decision set

aside and referring the Complaint back to the Delegate for further

consideration and acceptance.9 The Northern Territory was added as a

defendant in order to participate as a contradictor.10

Relevant background

The Complaint

[6] The plaintiff made her complaint by completing and lodging a

pro forma nine page Complaint Form11 and attaching about 75 pages of

documentation12. This included correspondence with various TF

officers, Mr Ken Davies (CEO, TF – the CEO), the Hon Dale

Wakefield (Minister for Territory Families – the Minister) and others

(of various dates, presented in random order), a 13 page submission by

the plaintiff to the Royal Commission into the Protection and Detention

of Children in the Northern Territory (the Royal Commission) dated

24 July 2017 and a 16 page Out of Home Care Plan for CM dated

October 2016.

[7] The Complaint Form contained a number of questions which the

complainant was to answer. In answer to Question 2 the plaintiff

9 Submissions of the Plaintiff filed 15 May 2018 (Plaintiff's Submissions) [1] and p 16.

10 The Northern Territory provided submissions including The Northern Territory’s Written Submissions dated 5 June 2018 (NT Submissions) and participated during the hearing.

11 BMC, pp 1 – 9.

12 BMC, pp 10 – 84.

6

asserted that she thinks she was treated unfairly by TF, the CEO and

the Minister.

[8] Question 3(a) asked: “Why do you think you were treated unfairly?

Was it because of: …” The plaintiff ticked the box opposite the words

“whether you have children or not (parenthood)”.

[9] Question3 (b) stated: “We also look at complaints where the following

things may have happened.” The plaintiff ticked the boxes opposite

the words:

(a) “you were harassed because of your race, impairment, sexuality or

parenthood etc’; and

(b) “you have a special need because of your race, sex, impairment,

etc, and your special need was not catered for”.

[10] Question 4 asked: “Where did the unfair treatment happen?” The

plaintiff ticked the box opposite the words “when you tried to get food,

drink, cars, clothes or anything that is legal to buy, rent or lease

(supply of goods, services and facilities).”

[11] Question 5 stated: “Please give a detailed description of your

complaint (Tell us what happened, where, when and who was

involved.)” The plaintiff wrote “Please see attached details of

complaint.” Presumably that was a reference to the 75 page

attachment.

7

[12] Question 6 stated: “It is important to show that you were treated

unfairly because of an attribute you have ticked at questions 3(a) and

3(b). Explain why you think the way you were treated was based on

your attribute. (Unless you have already explained this in question 5).”

The plaintiff wrote “Please see attached.”

[13] Question 8 stated: “Have you tried to talk to who you are complaining

about or have you tried to sort out this complaint in any other way? If

you did, write what happened here.” The plaintiff wrote:

YES complained to TF. As a Foster Parent (Foster Carer) I was not supported and further disadvantaged, harassed, bullied, treated unfairly (denied procedural fairness, natural justice), not supported still, victimised and psychologically tortured by the actions / inactions of TF. Ken Davies did not respond to my pleas for help. Hon Dale Wakefield referred me back to TF and repeatedly declined my requests to meet with her and failed to address the inadequate and the inappropriate treatment of her Department towards a Foster Parent and failed to provide any support.

What was the plaintiff complaining of?

[14] Instead of providing a detailed description of her complaint(s) as

requested in Question 5 on the complaint form, and showing how she

was treated unfairly because of an attribute and why she thought the

way she was treated was based on her attribute as requested in

Question 6 on the complaint form, the plaintiff merely referred to the

75 page attachment, thus requiring the reader to peruse all of that

detailed material and look for the answers to those questions herself.

8

[15] On 13 December 2017 Bronwen McLaughlin, a Conciliator and

Delegate of the Anti-Discrimination Commissioner, prepared a

checklist (the Checklist).13 Ms McLaughlin recorded that the complaint

should be declined because it failed to disclose prohibited conduct. In

particular the complainant did not:

(a) “link [the plaintiff’s] attribute ‘parenthood’ with the treatment by

TF”; or

(b) “provide information about what her ‘special need’ was on the

basis of being a ‘parent’ that TF refused or failed to

accommodate.”14

[16] Under the heading “Allegations” Ms McLaughlin wrote that:

The complainant alleges:

• TF investigated her capacity as a foster carer because she made complaints to the Office of the Children’s Commissioner and TF about her experience dealing with TF and TF’s incompetence.

• She has been denied procedural fairness by TF in relation to complaints made against her, the subsequent investigation and review by TF.

• Her foster daughter was removed from her care by TF and placed with a new carer in February 2017.

• Her foster carer authorisation has been revoked by TF.

[17] At the commencement of the hearing of the Application, I told the

plaintiff that I still had some difficulty working out exactly what

13 BCM, pp 86 – 88.

14 BCM, p 88.

9

conduct she had complained about. I asked her to confirm whether she

agreed with Ms McLaughlin’s summary of her complaints. She said

she did not agree with that summary and that it was “totally

misconceived”.15 She said that the complaint was about the whole

service that she and CM received and did not receive during the whole

period of CM’s foster care with her. She said there were repeated

failings by TF to provide proper service and that after she began

complaining about not getting support and services she was harassed

and bullied by TF. She said that the revocation of her foster carer

authorisation was not as important to her as her other complaints about

the conduct of TF.

[18] I asked the plaintiff to state precisely what her complaints were and to

indicate whereabouts in the Complaint Form and attached

documentation she had identified the conduct complained of. She

referred to her answer to Question 8 quoted in [13] above and to

particular paragraphs in her submission to the Royal Commission. She

acknowledged several times, and I agree, that her description and

disclosure of the conduct complained of was vague.

[19] The plaintiff said there is a substantial amount of material, perhaps up

to 1200 pages, which was not included with the Complaint and which

did not need to be included because this was a “preliminary stage” of

15 Transcript (TS) 3.9.

10

the complaint process. Frequently, during the plaintiff’s oral

submissions, she asserted that it was not necessary for her to provide

detail about her complaint because she expected that would be

requested by the Commissioner at a later time.

[20] The plaintiff ultimately identified four main aspects of TF’s conduct

that she says she complained about:

(a) that TF had not provided her and CM with adequate support,

services and professional help;

(b) after she complained about the lack of support and services she

was harassed and bullied;

(c) that TF denied her procedural fairness and natural justice when

responding to a complaint made about her care of CM; and

(d) the wrongful removal of the child from her care, describing it as

psychological torture.

[21] When I asked her where these complaints were identified in the

Complaint materials and where she had alleged that the relevant

conduct was “because of” or “on the basis of” her attribute of

parenthood or special need, the plaintiff had some difficulty in

responding. She said that these were matters of detail that did not have

to be provided as part of the Complaint and could be provided later on.

She contended that there was no requirement for that level of detail and

11

that the Delegate should have sought further information from her

before exercising her power under s 66 of the Anti-Discrimination Act

1996 (NT) (the Act).

[22] The plaintiff also suggested that it was misleading for questions

seeking information about the causal link, such as Question 6, to be

asked on the complaint form, as it was not necessary to show a causal

link at the acceptance stage of the process. That kind of information

could be provided later.

[23] I disagree with those contentions. Section 64(1)(b) of the Act states

that the complaint shall “set out in detail the alleged prohibited

conduct”. It is not appropriate, even bordering on oppressive and

vexatious, for a complainant to simply attach a bundle of materials to

the complaint form and expect the Commissioner to spend valuable

time and resources painstakingly going through those materials in order

to identify the relevant conduct that is said to be prohibited conduct.

[24] In her further written submissions following the hearing, the plaintiff

made numerous references to having been denied procedural fairness

by TF for much of the time when CM was in her care and to having

been harassed by TF as reprisals for her making requests of and

complaints to TF.

12

The Reasons

[25] The Delegate provided formal written reasons on 18 December 2017.

The main parts of the Reasons were as follows:

You allege you were discriminated against because of your parenthood status – section 19(1)(g) of the NT Anti-Discrimination Act (‘the Act’). You also allege the prohibited conduct of failure to accommodate a special need because of your parenthood status – section 24. You allege you are aggrieved by the conduct of discrimination in the area of goods, services and facilities – section 28(d) of the Act. The allegations relate to the conduct of Territory Families during late 2016 and 2017 and your authorisation as a foster parent. Under section 66 of the Act, I am required to accept or decline your complaint. I have considered your complaint under the Act and after careful consideration of the material before me I have decided I am unable to accept your matter. The reason for my decision is complaints can only be accepted if the story you provide describes a “distinction, restriction, exclusion or preference” or “less favourable treatment” because of an ‘attribute’ and within an ‘area of activity’ as defined under the Act. You selected the attribute of parenthood status. However your story does not identify how your ‘parenthood status’ is related to the alleged conduct of and treatment by Territory Families. You selected the area of activity as ‘goods, services and facilities’. The conduct you complain of relates to Territory Families’ treatment of you as a foster carer and revoking your authorisation as a foster carer. The definition of ‘services’ set out in section 4 of the Act. It is questionable that your authorisation as a foster carer and Territory Families decision to revoke authorisation is a ‘service’ as defined by the Act. It is not enough for a complainant to say that they think that they were treated unfairly or that the conduct or decision made is unfair; it must be because of your attribute. There needs to be something in your story that links the alleged discriminatory conduct to your selected attribute. Further, you alleged Territory Families failed to cater for your special need. However your complaint does not explain what

13

your special need is, how this special need is related to your attribute of ‘parenthood status’, and what or how Territory Families failed or refused to accommodate that special need. Unfortunately your complaint does not meet the criteria of the Act for us to assist you.16

Grounds of review

[26] The Originating Motion and Summons failed to identify any grounds of

review. Moreover they sought a wide range of relief including findings

of fact, findings of discrimination, damages and orders requiring TF to

do a number of things, including making a public written apology and

reinstating the plaintiff’s registration as a foster carer. Following

directions given by the Court, the Summons was amended. The

Amended Summons asserts that:

The question for determination is did the First Defendant unlawfully make a decision to decline the complaint of the Plaintiff pursuant to s 66 and/or s 67 (d) of the Act?

[27] In her written submissions17 the plaintiff states that she seeks:

(a) an order quashing or setting aside the first defendant’s decisions

of 13 December declining to accept the plaintiff’s complaint; and

(b) an order referring the plaintiff’s complaint to the first defendant

for further consideration and acceptance of the plaintiff’s

complaint.

16 BCM, pp 91 – 92.

17 Plaintiff's Submissions at p 16.

14

[28] The following grounds were asserted in the Amended Summons:

1. The making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made. Contrary to the decision maker’s decision to decline the complaint purportedly under s 67 of the Act in that the Plaintiff did disclose any prohibited conduct. The decision maker erred in law in declining the complaint on this basis.

2. The First Defendant (by her delegate) contrary to law purportedly rejected the complaint on the basis that there was no link between the conduct complained of and the Plaintiff’s attribute of parenthood. There is a link between the prohibited conduct complained of by the Plaintiff and her Parenthood attribute. The First Defendant erred in law to reject the claim on this basis and also additionally this was not a lawful basis on which to reject the complaint at this preliminary stage. The First Defendant has further improperly fettered its decision by incorrectly concluding that there was no link to the Parenthood attribute and the prohibited behaviour complained of by the Plaintiff.

3. The Plaintiff was not afforded natural justice by the decision maker before the decision was made by the First Defendant (by her delegate), in that she was not afforded, before the adverse decision/s was made any opportunity at all to respond to the adverse impending decision/s of the decision maker to decline her complaint and/or any of its adverse reasoning. Contrary to law the decision maker unfairly denied the Plaintiff natural justice and the opportunity to respond to, clarify and/or amend her complaint, if necessary, prior to the adverse decision/s being made, or even comment on the complaint prior to the adverse decision/s being made.

4. The decision/s was otherwise contrary to law.

[29] Ground 1 seems to be based upon the plaintiff’s disagreement with the

Delegate’s conclusion that the Complaint did not disclose “prohibited

conduct”.18

[30] Ground 2 seems to raise two contentions: 18 “Prohibited conduct” is defined in s 4(1) of the Act.

15

(a) that the Delegate erred in concluding that there was no link

between the conduct complained of and the plaintiff’s attribute of

parenthood (Ground 2a); and

(b) that the Delegate erred in declining the Complaint at a preliminary

stage on the basis that there was no such link (Ground 2b).

[31] Ground 3 seems to be to the effect that the plaintiff was not afforded

natural justice because the Delegate declined the Complaint without

giving the plaintiff any opportunity to address the concerns of the

Delegate by providing further information, or contentions, or to amend

the Complaint. This contention seems to underlie Ground 2b and many

of the other submissions made by the plaintiff.

[32] Counsel for the Northern Territory contended that Grounds 1 and 2(a)

are directed to the merits of the Decision and are not arguable in an

application for judicial review. Counsel contended that the condition

precedent for the exercise of the power to decline a complaint under

s 67 of the Act is the Commissioner’s belief as to the existence of a

relevant fact, here that the complaint failed to disclose any prohibited

conduct.19

[33] In her written submissions the plaintiff asserted that the Delegate

wrongly declined the complaints of “discrimination in the form of

19 NT Submissions [13] and [22] – [26].

16

harassment” and “failure to accommodate a special need”.20 She stated

that:

The grounds are that the decision to decline the complaint was an improper exercise of the power conferred by the enactment under which it was purported to be made and contrary to law in that the plaintiff did disclose prohibited conduct under the Act, that the plaintiff had the attribute of parenthood (foster parent), and that the first defendant further improperly fettered its decision in concluding that there was no link to the parenthood attribute and the behaviour complained of by the plaintiff and further in not affording the plaintiff natural justice before the adverse decision/s was made.21 The question of law for determination is did the first defendant unlawfully make a decision to decline the complaint of the plaintiff pursuant to s 66 and/or s 67((d) of the Act?22

[34] In her written submissions and during her oral submissions, the

plaintiff placed most of her emphasis upon the Delegate’s conclusions

that the Complaint did not disclose prohibited conduct and that there

was no link between the plaintiff’s attribute and TF’s conduct. She

sought to have the Court go behind the Delegate’s conclusions and

determine, in effect, that the Delegate’s belief was unreasonable in the

circumstances. It became apparent that the plaintiff’s main contentions

were that the Delegate’s belief that the Complaint did not disclose

prohibited conduct was not reasonable. Although this had not been

clearly raised as a ground of review, in light of the fact that the

plaintiff was representing herself, I invited and received further written

20 Plaintiff's Submissions [1]


22 Plaintiff's Submissions [3].

17

submissions on the assumption that Grounds 1 and 2a concern the

reasonable belief aspect of s 67 of the Act.

Legislative context

[35] The objects of the Act relevant for present purposes are:

(a) the promotion recognition and acceptance of “the principle of the right to equality of opportunity of persons regardless of an attribute”; and

(b) the elimination of “discrimination against persons on the ground of race, sex …, parenthood, …”23

[36] Section 4 contains a definition of “prohibited conduct”:

(a) discrimination, other than discrimination exempted from the application of this Act; or

(b) sexual harassment; or (c) victimisation; or (d) discriminatory advertising; or (e) seeking unnecessary information; or (f) failure to accommodate a special need; or (g) aiding a contravention of the Act.

[37] Subsection (a) above refers to conduct set out in Part 4, Divisions 1 –

7. Subsections (b) – (g) refers to conduct set out in Part 3 Division 2.

The relevant provisions for present purposes are those that relate to

“discrimination” and “failing to accommodate a special need”.24

[38] “Discrimination” is not defined exhaustively in the Act, however s 20

provides as follows: 23 S 3 of the Act.

24 S 4(1)(a) and (f).

18

Discrimination (1) For the purposes of this Act, discrimination includes:

(a) any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity; and

(b) harassment on the basis of an attribute, in an area of activity referred to in Part 4.

(2) Without limiting the generality of subsection (1), discrimination takes place if a person treats or proposes to treat another person who has or had, or is believed to have or had: (a) an attribute; or (b) a characteristic imputed to appertain to an attribute; or (c) a characteristic imputed to appertain generally to persons

with an attribute, less favourably than a person who has not, or is believed not to have, such an attribute.

(3) For discrimination to take place, it is not necessary that: (a) the attribute is the sole or dominant ground for the less

favourable treatment; or (b) the person who discriminates regards the treatment as

less favourable. (4) The motive of a person alleged to have discriminated against

another person is, for the purposes of this Act, irrelevant. (underlining added by me)

[39] Section 24 relates to the failure to accommodate a special need. It

provides:

Failure to accommodate special need (1) A person shall not fail or refuse to accommodate a special

need that another person has because of an attribute. (2) For the purposes of subsection (1):

(a) a failure or refusal to accommodate a special need of another person includes making inadequate or inappropriate provision to accommodate the special need; and

19

(b) a failure to accommodate a special need takes place when a person acts in a way which unreasonably fails to provide for the special need of another person if that other person has the special need because of an attribute.

(3) Whether a person has unreasonably failed to provide for the special need of another person depends on all the relevant circumstances of the case including, but not limited to: (a) the nature of the special need; and (b) the cost of accommodating the special need and the

number of people who would benefit or be disadvantaged; and

(c) the financial circumstances of the person; and (d) the disruption that accommodating the special need may

cause; and (e) the nature of any benefit or detriment to all persons

concerned. (underlining added by me)

[40] The main objects and principles of the Act are similar to those

expressed in other legislation such as the Disability Discrimination Act

1992 (Cth) discussed in authorities such as Purvis v State of New South

Wales (Department of Education and Training)25. That Act uses

similar language in its objects provision (s 3), referring to

discrimination against persons “on the ground of disability” in certain

areas and in the provision which defines what is meant by

discrimination (s 5).26

25 (2003) 217 CLR 92 (Purvis).

26 Section 5(1) of the Disability Discrimination Act 1992 (Cth) provides that: “For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.” (underlining added by me).

20

Processing and assessment of complaints

[41] Part 6 of the Act provides for the making and resolution of complaints.

Pursuant to s 60(a), a person may make a complaint to the

Commissioner if he or she is aggrieved by “prohibited conduct”.

[42] A complaint must include details of the alleged prohibited conduct and

specify each respondent.27 A complaint must be made no later than

12 months after the alleged prohibited conduct took place, unless the

Commissioner decides otherwise.28

[43] Sections 66 and 66A of the Act require the Commissioner to “assess”

and then either “accept or decline” the complaint within 60 days after

receiving the complaint (the Acceptance Stage). In exercising those

functions, the Commissioner must have regard to the matters in s 67 of

the Act.

[44] Section 67 provides:

Commissioner to decline frivolous, &c., complaint The Commissioner may decline a complaint at any time if the Commissioner reasonably believes that the complaint is: (a) frivolous or vexatious; or (b) trivial; or (c) misconceived or lacking substance; or (d) fails to disclose any prohibited conduct.

27 S 64(1)(b) and (c).

28 S 65(1) and (2).

21

[45] Barr J considered an earlier version of the Act in Hofer v Anti-

Discrimination Commissioner.29 His Honour observed that for a

complaint to be ultimately substantiated, it must pass through at least

three and possibly four stages: acceptance, investigation, conciliation

(possibly) and hearing.30

[46] His Honour quoted the following observations by Mr Luppino SM (as

he then was) in Martin v McGowan, McCue and Anti-Discrimination

Commissioner31:

The determination of a complaint under the Anti-Discrimination Act is essentially a three stage process. The first stage is designed to screen out unmeritorious complaints and to ensure that only matters worthy of investigation proceed further. The second stage requires the Commissioner to fully investigate a complaint. The third stage is the determination of a complaint once the Commissioner, having fully investigated the complaint, decides that it is appropriate to proceed further to a full hearing.32

[47] Barr J said, at [11]:

That is a useful summary, provided it is understood that, in the first stage, “unmeritorious” refers not to some assessment of the general merits of complaints, but to the fact that the complaints may be assessed within s 67 of the Act as frivolous or vexatious, trivial, misconceived or lacking in substance, or as failing to disclose any prohibited conduct.

29 [2011] NTSC 20 (Hofer).

30 Ibid [9].

31 [2001] NTMC 63.

32 Ibid [6]

22

[48] His Honour rejected a contention that the Acceptance Stage should be

characterised as a “low level” screening test, and pointed out that:

The decision-making power is vested in the Commissioner.33 There is no filtering by a lesser officer with the statutory obligation to refer to the Commissioner for confirmation of rejection. Moreover, the Commissioner’s considerations are not merely as to formal or regulatory compliance. They involve or may well involve quite difficult assessments, the drawing of conclusions, the making of judgements and the exercise of one or more discretions. 34

[49] In 2015 the Justice Legislation Amendment Act 2015 amended the Act

including Part 6 Division 1 to make changes to the complaint process.

The second reading speech states that a purpose of the amendments was

“to reform the complaint process to provide a quicker process for

parties to enable the process to operate more efficiently with reduced

resources.”35

[50] The “accept or reject” requirement in s 66 referred to in Hofer, was

replaced with the “accept or decline” requirement in s 66 as it now is.

Section 67 was in the same form as it is now except that the opening

words originally provided that the Commissioner “shall reject a

complaint if …” rather than the wording that now reads “may decline a

complaint at any time if…”. I consider that the words “may decline a

complaint” are intended to confer an additional discretion upon the

33 Although the power may be delegated under s 15(1) of the Act.

34 Hofer [15].

35 Second Reading Speech Justices Amendment Bill 2015.

23

Commissioner to accept a complaint, even where the Commissioner

believes that the complaint falls within one or other of the categories in

s 67. It seems to me that these particular amendments were designed to

overcome some of the difficulties identified in Hofer.

[51] The other main change in the legislation was to provide for accepted

complaints to be referred to compulsory conciliation, rather than to an

investigation as in the previous model. I consider that despite this

change in process the test to “accept or decline” a complaint under

ss 66 and 67 remains essentially the same as stated by Barr J in Hofer.

Support for this view can also be found in the fact that the

Commissioner is not given powers to gather evidence or evaluate the

merit of a complaint until after an assessment and conciliation.36

[52] These kinds of regime are fairly common in legislation which deals

with the receiving and processing of complaints against people.37 A

process such as the Acceptance Stage provides an important filter

designed to avoid the unnecessary waste of time and resources that

would otherwise be involved in investigating, considering and

determining the merits of complaints that do not meet certain threshold

requirements. 38 Such a process will often enable the complaint to be

dismissed if it is frivolous or vexatious, trivial, misconceived or 36 Note however that the Commissioner may request information in relation to the complaint

from a respondent, when assessing the complaint. See s 66B.

37 See for example ss 477 – 478 of the Legal Profession Act 2006 (NT) and s 150 – 151 of the Health Practitioner Regulation National Law 2009 (QLD).

38 See too Hofer at [10] – [11].

24

lacking substance or does not otherwise meet an important criterion for

invoking the jurisdiction of, and occupying the valuable resources of,

the relevant tribunal.

[53] The relevant provision for present purposes is s 67(d) of the Act. Two

observations must be made regarding the power in s 67(d). First, the

condition precedent for the power is not the fact itself – that is,

whether the complaint fails to disclose prohibited conduct – rather it is

the reasonable belief of the Commissioner as to the existence of that

fact.39 Second, the words “at any time” make it clear that the

Commissioner may decline a complaint under s 67 whenever he or she

holds that belief.

[54] If a complaint is accepted under s 66, it progresses to the next

complaint resolution stage.40 If the complaint is declined, it lapses and

the complainant cannot make another complaint in relation to the same

conduct.41

Grounds 1 and 2a – not disclose prohibited conduct

[55] Counsel for the Northern Territory initially contended that the

Delegate’s findings that the conduct alleged was not prohibited conduct

and/or that there was no causal link alleged, were findings of fact that

39 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [42] per Spigelman CJ

(Meagher and Powell JJA agreeing on this point at [179] and [187], respectively).

40 Once a complaint has been lodged, there are three complaint resolution stages: the Acceptance Stage (ss 66 – 68); the conciliation/evaluation stage (ss 78 – 85); and the hearing stage (ss 86 – 88).

41 S 66D(b) of the Act.

25

cannot be reviewed on judicial review. As I pointed out in [34] above

the real issue in the present matter concerns the Commissioner’s

reasonable belief as to whether the Complaint disclosed any prohibited

conduct. If in fact the Complaint did disclose prohibited conduct there

could well be some doubt about the reasonableness of a belief that it

did not.

[56] Counsel for the Northern Territory also submitted, and I accept, that

the jurisdiction of this Court in an application for judicial review is a

limited one, 42 confined to the legality, rather than the merits, of the

Decision.43 Accordingly, the plaintiff cannot invite the Court to

substitute its own view on the facts or merits of the Decision for that of

the Delegate.44 The Court’s role is to identify the limits on the

exercise of the power in ss 66 and 67(d). The plaintiff cannot use this

application “as a basis for a complete re-evaluation of the findings of

fact, a reconsideration of the merits of the case, or a re-litigation of the

arguments that have been ventilated, and that failed” before the

Delegate.45

42 Hofer at [44].

43 See for example Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 370 – 371 per Deane J; and Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35 – 36 per Brennan J.

44 Bruce v Cole (1998) 45 NSWLR 163 at 184 – 185 per Spigelman CJ and Abebe v Commonwealth (1999) 197 CLR 510 at 579 per Gummow and Hayne JJ.

45 Re Minister for Immigration & Multicultural Affairs; Ex pare Applicant S20/2002 (2003) 198 ALR 59 at [114] per Kirby J (in dissent, but not on this point).

26

Reasonable belief

[57] Subsequent to the hearing of oral submissions, counsel for the Northern

Territory provided further written submissions on this important

issue.46 The plaintiff then filed detailed written submissions in

response.47 For the most part, I agree with the submissions made by

counsel for the Northern Territory.

[58] The Commissioner’s power to decline a complaint pursuant to s 67(d)

of the Act is conditioned on the existence of a “reasonable belief” that

the complaint fails to disclose prohibited conduct. The existence of

that “reasonable belief” was necessary to enliven the power of the

Delegate to exercise her discretion.48

[59] The Court is able to review the objective existence of that criterion in

determining whether the decision was within jurisdiction.49 In doing

so, the Court must not substitute its opinion or belief for that of the

Delegate.50 Thus, the Court should not find the Delegate’s belief was

unreasonable, and the decision therefore invalid, merely because it

formed the view that the Complaint did disclose prohibited conduct. 46 Northern Territory’s Further Written Submissions dated 6 July 2018 (NT Further

Submissions).

47 Plaintiff's Further Written Submissions filed 13 July 2018 (Plaintiff’s Further Submissions).

48 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] per French CJ.

49 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [133] (referring to R v Connell; Ex parte Hetton Bellbird Colleries Ltd (1944) 69 CLR 497 at 430 per Latham CJ) and at [140]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275 per Brennan CJ, Toohey, McHugh and Gummow JJ.

50 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [73] per Gleeson CJ and Gummow J and the authorities referred to therein.

27

[60] The lawful exercise of a power such as that conferred by s 67(d)

requires two things:

(a) that the person exercising such a power in fact held that belief;

and

(b) that the facts and circumstances known to that person constituted

objectively reasonable grounds for that belief.51

[61] The first requirement is not in contention. The only issue is whether

there were reasonable grounds for the Delegate’s belief that the

Complaint failed to disclose prohibited conduct.52

[62] In his further written submissions53 counsel for the Northern Territory

contended that:

7. Proof of a “reasonable belief” requires that the facts and circumstances known to the Delegate54 were sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance that the Complaint did not disclose prohibited conduct.55 The circumstances that suffice to establish the grounds for the Delegate’s belief may leave

51 Prior v Mole (2017) 343 ALR 1 (Prior) per Kiefel and Bell JJ at [4], referring to George

v Rockett (1990) 170 CLR 104. See too Gageler J at [23], Nettle J at [73], and Gordon J at [99]. See too a summary of the relevant principles in Bernadt v Medical Board of Australia [2013] WASCA 259 at [63] – [68] per McLure JA and [173] per Newnes JA, followed in Nitschke v Medical Board of Australia (No. 1) (2015) 36 NTLR 55 (Nitschke) at [34] – [36].

52 Plaintiff’s Submissions at [28].

53 NT Further Submissions at [7] and [8].

54 It is agreed that the only material before the Delegate was the Complaint form and attached material.

55 Prior at [4] per Kiefel and Bell JJ, at [24] per Gageler J, at [100] per Gordon; Bernadt v Medical Board of Australia [2013] WASCA 259 at [67] per McLure JA, referred to in Nitschke at [34] per Hiley J.

28

room for some degree of conjecture.56 Thus, the test is “quite a low level”, requiring merely some tangible support that takes the existence of the state of affairs beyond the mere assertion by the Delegate.57 Inversely, to make good her contention, the plaintiff must establish there was no tangible support for the Delegate’s belief.

8. In that regard, it has been said that an allegation of unreasonableness in the formation of an administrative opinion will often be no more than an impermissible attack on the merits of the decision.58 That observation is apt here, where the plaintiff’s claim is that prohibited conduct was in fact disclosed, not that a reasonable person could not have concluded otherwise.

[63] Counsel for the Northern Territory contended that in forming the

relevant belief, the Delegate was required to assess whether the

Complaint included allegations which were capable of amounting to

“prohibited conduct” within the meaning of the Act.59 The plaintiff

disagreed with that contention and submitted that:

there is no requirement in section 67 or at the acceptance stage of the Act, that the prohibited conduct be assessed by the Commissioner (or her delegate) to determine if the allegations were “capable of amounting to prohibited conduct within the meaning of the Act”, just that any allegations of any prohibited conduct within the meaning of the Act were disclosed by the Plaintiff or that “the Commissioner reasonably believes that the complaint fails to disclose any prohibited conduct”.60

56 Prior at [4] per Kiefel and Bell JJ, at [100] per Gordon J. See also at [73] per Nettle J.

57 Coppa v Medical Board of Australia (2014) 34 NTLR 74 at [55] per Barr J, referred to in Nitschke at [36].

58 Foley v Padley (1984) 154 CLR 349 at 370 per Brennan J.

59 NT Further Submissions at [3] referring to s 4, and also 64(b) to of the Act, which provides that a complaint must set out “in detail the alleged prohibited conduct”.

60 Plaintiff’s Further Submissions [4].

29

[64] The plaintiff also challenged the contentions made in the first sentence

of paragraph 7 of the NT Further Submissions. She said:

8. Whilst in some jurisdictions or tribunals this may be the appropriate applicable test, in the matter at hand it is inappropriate given the finality of a matter under the Act (s 66D of the Act) in declining a decision, particularly at the acceptance stage, without any evidence being tested and the Delegate for the Commissioner in this matter failing in the assessment of the complaint to request any information in relation to the complaint from a Respondent when it was appropriate to do so.

9. The Plaintiff also submits that for the Delegate … to form a “reasonable belief” to decline the Plaintiff’s complaint at the stage she did she should have requested further information, clarity from the Plaintiff, invited the Plaintiff to amend the complaint, if necessary, before declining the complaint. Indeed the Plaintiff was contrary to law denied procedural fairness by the delegate … before the decision to decline her matter was made by the delegate ….

[65] The plaintiff frequently repeated her contentions that prohibited

conduct was in fact disclosed in the Complaint, that the Delegate

should have requested further information or clarity from her before

declining the Complaint and that TF and the Delegate denied her

procedural fairness.

[66] I agree with the Northern Territory’s contentions referred to paragraphs

[62] and [63] above and reject the plaintiff’s criticisms of those

contentions. As I conclude later, when considering Grounds 2b and 3,

there was no obligation on the Delegate to request further information

or clarity from the plaintiff, invite the plaintiff to amend the Complaint

30

before declining it, or to test any evidence, before declining the

Complaint.

[67] Moreover, it is not sufficient for a complainant merely to assert that

there has been prohibited conduct. The complaint must identify facts

and circumstances that, if true, would be capable of being prohibited

conduct. This includes facts and circumstances showing the necessary

link between the conduct and the relevant attribute.

Disclosure of prohibited conduct

[68] As counsel for the Commissioner acknowledges, the requirement

implicit in s 67(d), that the complaint “disclose” prohibited conduct,

should be broadly construed to require the Commissioner to consider

all of the information provided by the complainant. However, that

material must disclose “prohibited conduct”.61

[69] The Delegate provided two perhaps three reasons for declining the

Complaint: 62

(a) The Complaint failed to relate or link the plaintiff’s parenthood

status to the alleged conduct of and treatment by TF. The

necessary causal relationship was absent.

61 Commissioner’s Submissions [17] – [18].

62 See [25] above.

31

(b) The Complaint did not disclose any special need, how that special

need related to the plaintiff’s status as a foster carer, and how TF

failed to accommodate that special need.

(c) The Delegate queried whether the plaintiff’s authorisation as a

foster carer was a “service” within the meaning of the Act.63

Prohibited grounds of discrimination – ss 19 and 20

[70] The plaintiff’s allegations of discrimination rely upon the kind of acts

described in s 20(1), either of which acts must have been done:

(a) “on the basis of”;

(b) an attribute (relevantly parenthood);

(c) in an area of activity referred to in Part 4 (relevantly s 28).

[71] If the Commissioner reasonably believed that the allegations made by

the complainant failed to disclose one of these three elements the

Commissioner was entitled to decline the complaint under s 67 on the

ground that it failed to disclose any prohibited conduct.

[72] As counsel for the defendants pointed out it is not sufficient that a

person has an attribute in s 19. The discriminatory behaviour alleged

is required to be “on the basis of the attribute.” It need not be the sole

63 Section 28 of the Act provides that the Act only applies to prohibited conduct in certain

areas, provision of “goods, services and facilities” (s 28(d)). “Services” are defined to include services “provided by the government” (s 4(1)(h)). This application does not require the Court to determine whether the plaintiff’s authorisation as a foster carer, and the support provided by TF to foster carers, fell within that definition.

32

or dominant reason for the behaviour, but it must be a reason. While

the complainant need not demonstrate that she can prove her

allegations at this stage, she was required to disclose such a nexus in

the complaint. If the Commissioner forms a reasonable belief that a

complaint does not disclose such a nexus, this would allow a complaint

to be declined under s 67(d) on the grounds it fails to disclose

prohibited conduct.64

[73] It is clear from the words “on the basis of” that the mere coincidence of

an attribute and adverse treatment will not constitute discrimination.

Those words require a causal connection between the complainant’s

attribute and the respondent’s alleged discriminatory conduct. There

have been numerous decisions within the area of discrimination law

where expressions such as “by reason of”, “by virtue of”, “based on”,

“because of” and “due to” have been held to imply and require a

relationship of cause and effect between the characteristic of the

aggrieved person and the conduct said to be discriminatory.65

[74] In my opinion, the kind of causal connection required under the Act is

similar to that required under legislation such as the Disability

Discrimination Act 1992 (Cth) discussed in Purvis. Various members 64 Commissioner’s Submissions [19].

65 Many of these opinions were referred to by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 (Mt Isa Mines) at 321 – 322. They included opinions expressed by members of the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 (by Mason CJ and Gaudron J at 359 and McHugh J at 400 – 401), and by Street CJ in Director General of Education v Breen (1982) 2 IR 93 at 95. Since then the "causation element" has been considered and applied in other decisions, before and after the High Court’s decision in Purvis in 2003.

33

of the High Court discussed the meaning and effect of the words “on

the ground of” disability and “because of” disability in the context of

discrimination. In relation to their consideration as to whether the

discriminatory treatment alleged in that matter occurred “because of”

disability, Gummow, Hayne and Heydon JJ said, at [236]:

Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.

[75] Similarly, McHugh and Kirby JJ said that “it is necessary to consider

the reason why the discriminator acted as he or she did”.66 What was

“the ‘real reason’ for the alleged discriminator’s act”?67

[76] This important test, that is to enquire why the aggrieved person was

treated as he or she was and to focus on the real reason for that

conduct, has been applied in subsequent decisions concerning

allegations of discriminatory conduct. 68 In Purvis, McHugh and Kirby

JJ also pointed out that current authority does not support a “but for”

test. 69

66 Purvis at [160]. See too [148].

67 Purvis at [166]. See too their Honours’ consideration of other authorities at [148] – [166].

68 See for example Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 at [27]; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [56] – [57]; and Varas v Fairfield City Council [2008] FMCA 996 at [75].

69 Purvis at [154] – [166]. See too Mt Isa Mines at 326 per Lockhart J.

34

[77] As counsel for the Northern Territory pointed out, unless there was the

requisite causal connection between a complainant’s attribute and a

respondent’s conduct, a respondent would be guilty of discrimination if

a complainant had any attribute, even though the respondent’s conduct

towards the complainant was entirely unconnected to that attribute.

Thus, in Anning v Batchelor Institute of Indigenous Territory

Education70, the Hearing Commissioner held that a complainant had not

demonstrated racial discrimination by showing “that there was less

favourable treatment and then simply [pointing] to the fact that she is

indigenous and [the successful applicant] is not.”71 Rather, for the

purpose of s 20 of the Act, discrimination required adverse treatment

“based on race”.72

Failure to accommodate a special need – s 24

[78] Section 24 seeks to promote the right to equal opportunity. It is

different in its make up to the direct discrimination provisions set out

in Part 4, Divisions 1 – 7. Section 24(1) provides that “a person shall

not fail or refuse to accommodate a special need that another person

has because of an attribute.”

[79] As is the case for complaints based on discrimination, the concept of

failing to accommodate a special need requires a relationship between

70 [2007] NTADC 1 (Anning)

71 Anning at [5.11].

72 Ibid at [5.10].

35

the special need and the complainant’s attribute. The phrase “because

of” imposes a causal requirement of the kind discussed above. For a

need to be “special”, it must arise from the attribute. It cannot be a

need which everyone has regardless of the attribute.73

[80] As counsel for the Commissioner pointed out74 the critical elements to

be alleged in a complaint under s 24 are :

(a) What the special need arising from the attribute is. For example a

quadriplegic person has a special need for an accessible toilet at

his or her workplace. The need arising from the attribute does not

have to be precisely set out but must at least be capable of

inference from the allegations.

(b) How or why the need alleged is a “special” need arising from the

attribute. This goes to the heart of what s 24 is seeking to redress.

It would be insufficient to demonstrate a need everyone has. For

example, safety is a need everyone has, but it is not a special

need.

(c) What accommodations were not provided or were provided

inadequately or inappropriately. Accommodations are changes

required to assist a person achieve equal opportunity to participate

in an area in s 28. For example an employee with dyslexia may

73 NT Submissions [18].

74 Commissioner’s Submissions [20].

36

require all her work instructions to be in a particular font so she

can understand what tasks are being asked of her. Without this

accommodation she may not understand instructions from a

manager and thereby not have the same opportunity as her

colleagues who do not have this need, to perform their job.

(d) Identify the area in s 28 where this accommodation was required

to be made.

[81] If the Commissioner reasonably believes that one of these elements is

missing in the allegations raised in the complaint, this would be a basis

to decline a complaint under s 67(d).

Plaintiff’s Submissions

[82] As a TF foster parent the plaintiff clearly had the attribute of

parenthood. The plaintiff points out that her dealings with TF, the

CEO and the Minister have all been in her capacity as a parent.

[83] She placed special emphasis upon the meeting on 17 February 2017

when she was told about the complaint against her and that CM would

be removed from her care.75 She also complained about a letter dated

7 July 2017 sent to her by TF, 76 “much of which contains misleading,

distorted, procedurally unfair information by TF and fails to reasonably

75 See [3] above.

76 BMC, pp 12 – 14. This was one of many written communications between the plaintiff and TF between 22 February 2017 and 18 August 2017 reproduced with the randomly ordered materials provided with the Complaint. See BMC, pp 10 – 54.

37

answer important simple questions asked by the plaintiff”. In relation

to the meeting the letter stated:

During this meeting you were advised that your ‘parenting style’ was not meeting [CM’s] needs and consequently it was in [CM’s] best interest to be moved to a new placement.77 (Emphasis in Plaintiff’s Submissions)

[84] The plaintiff says that she was never told by TF what her “parenting

style” was and that “TF in house were supposed to support [the

plaintiff and CM] but for nine months made no contact at all, despite

complaints by the plaintiff.”78

[85] She says she was “bullied and harassed by TF at the meeting [of

17 February 2017]” and that “it was aggressively, cruelly,

unreasonably and unprofessionally conducted”.79 She says that it was

at that meeting that she was first told by TF that there was a complaint

against her and an investigation. She says that she “could not be told

the details of the complaint against her and worse still that another

foster carer had already been sourced, that [sic] had more experience of

foster children experiencing trauma, and even worse that her foster

daughter would be moved.”80 She says that during the meeting she

begged TF to give her more information about the complaint, she

insisted that it was in CM’s best interest for her not to be moved, and 77 Plaintiff's Submissions [5].




38

she said that she had not done anything wrong apart from complaining

about TF failing to support CM’s psychological health. She says:

It was tortuous to the plaintiff, and a form of harassment of TF not informing the plaintiff of the complaint against her. This meeting in itself and the way it was aggressively, cruelly, unreasonably and unprofessionally conducted, as was the impromptu meeting with the plaintiff on 24 November 2016 [which] was also in itself a form of harassment of the plaintiff related to her parenthood attribute status.81

[86] After referring to s 20(3) and (4) of the Act the plaintiff contended:

It is simply not plausible to suggest, because of the nature of the relationship between the plaintiff and TF as Foster parent (foster carer) and service provider that the prohibited conduct complained of or at least some of the prohibited conduct complained of was linked to the plaintiff’s parenthood attribute. The plaintiff submits that there was in fact a dominant link.82

Discrimination by harassment

[87] In her written submissions, the plaintiff stated that she had complained

about harassment in her answer to Question 8 of the complaint form,

quoted in [13] above. She then contended, from [14]:

14. The Commissioner (by her delegate) in declining to accept the complaint of the Plaintiff appears to not at all turn her mind to the discrimination in the form of harassment on the basis of the attribute of parenthood disclosed by the plaintiff and the serious allegations of torture and bullying and harassment related to her foster parent, parenthood status. The Commissioner’s (by her delegate) reasons for decision letter of 18 December 2017 only refers to a form of discrimination, which was not the form of discrimination complained of by the plaintiff and the decision under section



39

66 dated 13 December 2017 is also silent in this regard and also fails to address the allegations of harassment, including torture and bullying complained of by the plaintiff which are serious forms of harassment.

15. The correct period of time of the actual complaint made by the plaintiff to the Commission, in which she complained of prohibited conduct, did not appear to be properly understood or considered by the Commissioner (by her delegate) as the plaintiff’s answer at question 9 to the question “Did these things happen within the last 12 months? (We may not be able to deal with matters that occurred more than 12 months ago)” was “Yes and also in the twelve months prior”, yet the Commissioner (by her delegate) in her letter of reasons of decision dated 18 December 2017 oddly limits the period of the complaint as relating “to the conduct of Territory Families during late 2016 and 2017,” (see p.91 IMC), which is not correct and does not at all address the part of the complaint that was out of time.

16. The Commissioner (by her delegate) also incorrectly states that on the decision under s 66 (See p87 IMC) the plaintiff’s foster daughter’s age as 5, when the child was never 5 when she was living with the plaintiff, she was 3 years and ten months old when she came to live with the plaintiff and just a few weeks short of her fifth birthday when she was taken in retribution, or because of gross failings by TF, or perhaps both, against her will kicking and screaming, ripped from her foster mother whom she was clinging too by TF and then forced kicking and screaming by TF’s workers into the back of a TF vehicle, protesting telling TF she wanted to go home with her Mother. It was a form of torture to both the child and the plaintiff, as was TF Steve Sanders making the plaintiff suddenly have to tell her foster daughter in front of him she had to go and live somewhere else.

17. The plaintiff raised some extremely serious complaints of harassment on the basis of her attribute of parenthood that included psychological torture and bullying inflicted by TF on the Plaintiff relating to her status as foster parent of her foster daughter. The Commissioner erred in law in declining the complaint on the basis that the plaintiff did not disclose any prohibited behaviour.

[88] I pause at this stage to make some preliminary observations.

40

[89] There is no basis for drawing the inferences contended for in paragraph

[14] of the plaintiff’s submissions. Although the Delegate did not

expressly refer to harassment, bullying or torture in the Reasons, she

was clearly aware of, and considered, those allegations. The plaintiff’s

complaint of harassment was identified in her answer to Question 3(b)

as one of the two areas of conduct about which she was complaining

and her allegations that she was harassed, bullied and psychologically

tortured, were contained in her answer to Question 8 on the Complaint

form. Of the two areas of conduct the subject of her complaint,

harassment was the only form of discrimination selected by the

plaintiff.83

[90] The Reasons and the Checklist, each refer to the two categories of

conduct complained of, namely “discrimination” and “failure to

accommodate a special need”. It follows that, where the Reasons state

“You allege you were discriminated against because of your

parenthood status – section 19(1)(g)”, the Delegate was referring to the

harassment complaint. It is also clear that, in addition to having regard

to the Complaint form, the Delegate also had regard to the annexed

material. Both the Checklist and the Reasons refer to detail that could

only have been gleaned upon perusal of the annexed material.

83 See s 20(1)(b) of the Act.

41

[91] In any event, there was no need for the Delegate to enquire into the

detail of, and say much about, the various kinds of harassment and

related conduct that the plaintiff had alleged. It was sufficient that she

examine and consider, as she did, whether there was a relevant causal

nexus between the alleged discriminatory conduct and the plaintiff’s

status as a foster carer. Once she formed a reasonable belief that such

a nexus was not disclosed, she was entitled to decline the Complaint on

the basis that it failed to disclose any prohibited conduct.

[92] It is difficult to see the relevance of paragraph [15] of the plaintiff’s

submissions. It seems that her main concerns were the meeting of

17 February 2017, when she was first told about the complaint against

her and the investigation that had commenced in November 2016, and

subsequent correspondence and other dealings with TF. Her other

complaints of harassment and failure to accommodate a special need,

occurred in or after June 2016.84 The Checklist demonstrates that the

Delegate had regard to all of the material annexed to the Complaint and

not merely the information concerning events from late 2016 onwards.

The Delegate turned her mind to events which occurred before that

time, such as when the plaintiff began to care for CM (February

2016).85 The Delegate referred to the plaintiff’s complaints to TF and

84 The material disclosed that the plaintiff first complained to TF regarding services for her

foster child on 5 June 2016.

85 BMC, p 87.

42

the Children’s Commissioner, which commenced in June 2016.86 The

Delegate did not limit herself to matters between late 2016 and 2017.

[93] In any event, even if that had occurred, the Delegate would have been

entitled to so limit herself. Section 65(1) of the Act provides that a

complaint must be lodged within 12 months of the alleged prohibited

conduct taking place.

[94] I do not consider that the delegate’s error when she stated that CM was

five years old was material.

Failure to accommodate special need

[95] In her written submissions, the plaintiff quoted the provisions of s 24.

She then quoted s 58 which provides an exception to s 24(1) in

circumstances where it would be unreasonable to require the person to

supply the special services or facilities.

[96] She then contended, from [19] of her written submissions:

19. The plaintiff complained to the Commission of the prohibited behaviour under the Act of failure to accommodate a special need on the basis of her attribute of parenthood (foster parent). The plaintiff raised that she had a special need as a foster parent (foster carer) to be supported by TF (see p6 IMC), to provide her foster daughter with psychological help, including psychological assessment regarding significant concerns that the child entered the Northern Territory child care protection system with [sic] as the child appeared to have a serious psychiatric disorder relating to attachment, and or other disorder relating perhaps to too many prior separations from primary care giver as a young child,

86 Ibid.

43

including from her biological mother at a few weeks of age, two further foster mothers before the age of eighteen months, and then from her father and/or trauma experiences for which she should be assessed and helped according to the medical professionals who met her and also the plaintiff, day-care and numerous respite carers.

20. The plaintiff in her status as foster parent of her foster daughter could not help her foster daughter psychologically without the consent of TF who repeatedly failed, despite reasonable requests made by the plaintiff to provide a reasonable service to both the plaintiff and her foster daughter, even when the child at one stage was ripping her hair out at day-care around the time of her trial and at a time when TF had been meeting the child abruptly without the knowledge of the plaintiff to enable her to forewarn her daughter, or be present and causing distress to the child.

21. Other special needs of the plaintiff outlined in her story were the repeated failure of TF, despite the plaintiff’s request’s to obtain a passport for her foster daughter so that the child could travel with her to visit family, this was despite the case manager telling the plaintiff how easy it was to obtain a passport and the child pestering her foster mother repeatedly. The plaintiff wanted and preferred her daughter to travel with her but instead the plaintiff was forced to put her foster daughter in respite care that proved disruptive and detrimental to the child, she frequently hit any younger children they had and peed and pooed her pants for respite carers, for attention perhaps, which she did not do with the plaintiff as she had full attention and felt safe.

22. TF also never held any case meetings with the plaintiff regarding the child in the whole time the plaintiff had care of the child or included her to the amended care plan and oddly delayed giving her a copy. TF did not communicate any concerns to the plaintiff about her ‘parenting style’ until they abruptly took the child and support to the plaintiff by TF was almost non-existent.

23. The Plaintiff in her complaint raised significant failures by TF to support her and Foster Daughter. The Commissioner (by her delegate) in declining to accept the complaint of the Plaintiff erred in law as the Plaintiff disclosed prohibited conduct in the failure to accommodate a special need on the attribute of parenthood.

44

Further submissions

[97] The plaintiff submitted that the services of TF, the CEO and the

Minister, were all services provided by a government and/or services of

“any profession or occupation” and thus fell within the definition of

“services” in s 5 of the Act. She proceeded to accuse them and/or

members of their staff of engaging in serious misconduct.87

[98] The plaintiff also contended that the Delegate decided to decline the

Complaint within one day of receiving it, that is on 13 December 2017,

although she did not communicate that decision and provide the

Reasons until about 18 December. The plaintiff said that she “should

have been given natural justice before the decision was made for the

complaint to be declined by the Commissioner (by her delegate)”88 and

was thus not afforded procedural fairness. After quoting from various

parts of Hofer, including Barr J’s rejection of the argument that the

acceptance stage was some kind of “low level” screening test, the

plaintiff said, from [31] of her written submissions:

31. The Plaintiff submits that given the finality of the decision making in the Act at the acceptance stage, that while preliminary it is not “low level”, that it would be implied before rejecting a matter at the acceptance level that the Applicant should be afforded natural justice and be given the reasonable opportunity to satisfy the Commissioner that the application discloses prohibited conduct and/or if necessary be permitted to amend the application. This is compounded by the finality of the decision making in that it lapses and

87 Plaintiff's Submissions [24] – [25].


45

cannot be bought again and that in the Northern Territory review of the decision at the acceptance stage to not accept is by way of judicial review to the Supreme Court, which is a costly and complicated process, out of reach of most of the population of the Territory and that stands starkly at odds with the purpose of the Act to prevent discrimination and promote equal opportunity.

[99] And at [33] – [34]:

33. The plaintiff further submits that the Commissioner (by her delegate) erred in law and crossed to a general merits review at a stage when not appropriate or required at this stage when [sic] says, “No link between behaviour complained of”, this did not need to be determined at the acceptance stage. In any event it is submitted that there was a definite link as the plaintiff’s entire personal dealings with TF was as a foster parent and the prohibited conduct complained of by the plaintiff related to her capacity as foster parent parenthood attribute.

34. Further it is, or would be inconsistent with the purposes of the Act for the complaint to be declined.

[100] In her subsequent written submissions, 89 the plaintiff repeated much of

what she had previously said. This included her assertions that she and

CM were subjected to harassment and psychological torture and that

she was repeatedly denied procedural fairness by TF. She also referred

to the unfortunate and poor medical, psychological and other

conditions of CM, her difficulties obtaining a passport for CM, TF’s

lack of support for CM and the plaintiff as her carer, and TF’s

harassment of her in retribution for seeking support and complaining

about TF.

89 Plaintiff’s Further Submissions.

46

[101] The plaintiff asserted that all of the conduct that she complained of was

causally linked to her status as a foster carer. In her further written

submissions she said:

26 There is an obvious link between the behaviour complained of by the plaintiff and her foster parent parenthood status. The plaintiff complained as a parent and all complaints against her were about her parenting of [CM] and she was harassed and not supported by TF at all times wearing her foster parenthood hat and about her “parenting style”.

… 28 The plaintiff’s parenthood attribute was directly and

repeatedly attacked in a procedurally unfair manner by TF and her foster daughter taken abruptly from where she was happy, safe and loved. The plaintiff’s repeated requests for procedural fairness by TF to this day remain unmet and stands falsely accused and blamed for something she didn’t do …

[102] The plaintiff maintained that her parenthood status was all that was

necessary to satisfy the requirement of a causal link with the

discrimination and failure to provide special needs that she complained

of. It only occurred because she had that attribute of parenthood. For

example, TF was criticising her parenting style, but not telling her

what was wrong with it. The reason that she needed support was

because of her parenthood. The bullying and harassment of her, for

example during meetings on 25 November 2016 and 17 February 2017,

occurred because of her parenthood.

47

Conclusions

[103] I reject the plaintiff’s contentions to the effect that the necessary

causal links can be established merely on the basis that the alleged

conduct all occurred to her in her capacity as a foster carer. That

contention is, in effect, that these things would not have happened but

for the fact that she was a foster carer. I do not consider that a “but

for” test is appropriate. The complainant needed to go further and

provide a basis for a conclusion that a “real reason” for TF’s conduct

was her “attribute” as a foster carer and/or that she had a special need

“because of” that attribute.90

[104] In my opinion, the Delegate had reasonable grounds for declining both

the complaint about discrimination and the alleged failure to

accommodate a special need.

Discrimination – s 20

[105] It was necessary for the Complaint to disclose that the plaintiff had

been discriminated against and that the discrimination had occurred

“on the basis of” her parenthood.

[106] The Complaint had to disclose the necessary causal link between the

discrimination complained of and her parenthood, specifically that she

had been treated differently because she was a foster parent. That

requirement could not be satisfied by merely pointing to the fact that

90 See discussion at [72] – [77] and [79] – [81] above, particularly my discussion of Purvis.

See too Mt Isa Mines at 326 per Lockhart J.

48

she was a foster carer when she had these various interactions with

TF.91 As counsel for the Northern Territory pointed out, the plaintiff is

also a female. It could not be suggested that, because of the

coincidence of that fact alone, TF discriminated against her because of

her gender.

[107] The Complaint form did not disclose any such causal relationship.

Under the question asking for details of how she was treated unfairly

“because of” her parenthood, the plaintiff merely stated “Please see

Attached”. None of those attached documents suggested TF had

treated the plaintiff differently because she was a foster carer.

[108] Rather, a reasonable person considering the Complaint material would

have identified other reasons why TF engaged in the conduct alleged

by the plaintiff. For example, TF’s complaints about her parenting

style and whatever it was that eventually led to CM being removed

from the plaintiff's care, appear to have arisen in response to TF’s

concerns about the plaintiff’s own conduct. The basis of TF’s conduct

would appear to have been its concerns for the welfare and special

needs of CM, not any discriminatory conduct directed at the plaintiff

because of her attribute as a foster carer. Even if TF acted unfairly

towards the plaintiff, engaged in some form of harassment, bullying or

reprisal against the plaintiff, or performed incompetently, as the

91 Plaintiff’s Written Submissions at [5]. See Anning [5.10] – [5.11]. See too Mt Isa Mines

at 326 per Lockhart J, disapproving of the “but for” test.

49

plaintiff contends, it did not do so “on the basis” of her parenthood

attribute.

Failure to accommodate a special need – s 24

[109] Similarly, it was necessary for the Complaint to disclose that the

plaintiff had a special need, that she had that need “because of” her

parenthood, and that TF had failed to accommodate that special need.92

The Delegate declined this aspect of the Complaint because the

Delegate believed the Complaint did not disclose those matters.

[110] That belief, in particular as to the lack of a causal link between any

special need of the plaintiff and the plaintiff’s parenthood, was

reasonable. There was nothing on the face of the Complaint form

which addressed those matters. Nor did the accompanying material

disclose a relevant causal link, or what the plaintiff’s special needs

were and how they were not accommodated because of her parenthood.

Indeed, it was CM, not the plaintiff, who had relevant attributes,

namely age and impairment,93 and special needs “because of” those

attributes.

[111] The plaintiff now contends she had a number of special needs which

were not met. 94 In the context of the ad hoc material provided, it is

92 See discussion at [78] – [81] above.

93 Cf s 19(1) of the Act

94 Plaintiff’s Submissions at [19] – [21], referring to the need to be supported, to provide psychological help to her child, and to obtain a passport for her child to enable her to go travelling with the Plaintiff.

50

unreasonable to have expected the Delegate to identify those matters.

Regardless, a reasonable person, having reviewed the material, could

have concluded that no prohibited conduct was disclosed. The needs

now raised by the plaintiff were either not disclosed in the Complaint

material, 95 did not constitute a special need,96 or could reasonably be

seen to be a need of the child but not a special need of the plaintiff.97

[112] In my opinion there were reasonable grounds for the Delegate to

believe that the Complaint did not disclose prohibited conduct on the

part of TF (or the other respondents) by failing to accommodate any

special need that the plaintiff had because of her attribute of

parenthood.

[113] Grounds 1 and 2(a) are not made out.

Ground 2(b) – declined complaint too early

[114] Ground 2(b) contends that the Delegate erred in rejecting the

Complaint “at this preliminary stage” on the basis of her view that the

Complaint did not show a link between the conduct complained of and

the plaintiff’s attribute of parenthood. I reject this contention.

95 There is no reference in the BMC to CM not having a passport and in any event, the need

attaches to the child (not the plaintiff) and is not a “special” need, because it is a document all people require.

96 All people require “support”, therefore it is not a special need.

97 There was material alleging that the child had not received psychological care (which TF denied) (BMC, pp 56 – 62). It may have been open for the Delegate to conclude that this suggested a need of the child had not been met, but there was nothing to suggest the plaintiff was alleging her special needs had not been met. That is consistent with the material provided by the Plaintiff (BMC, p 60: “I emailed the Territory Families complaints inquiring as to why [the child’s] psychological needs were not being met”).

51

[115] The Act contemplates that complaints may be declined at the

Acceptance Stage. Section 60 provides that, once a complaint is made,

the Commissioner shall accept or decline a complaint. The word

“shall” is obligatory. The Commissioner has no discretion but to

undertake that function.98 The words “or decline” require a

discretionary election, contemplating the possibility that a complaint

may be declined. The plaintiff’s submission, if accepted, would

require those words to be read out of the Act. Those words must be

given meaning and effect.99

[116] Further, the plaintiff’s contention is inconsistent with an important

purpose of the Acceptance Stage, which is to provide a preliminary

screening test for unmeritorious complaints.100 That purpose would be

wholly frustrated if the Commissioner could not decline complaints at

that time.101

[117] Thirdly, the plaintiff’s contention is inconsistent with Barr J’s

conclusions in Hofer. His Honour pointed out that, when deciding

whether to accept or decline a complaint, there was an implied

98 The words “shall” impose an obligation to make that decision: see Director of Public

Prosecutions (ACT) v Hiep Huu Le (1998) 86 FCR 33 (FFC) at 40 – 41 per curiam and Forrest at [67] per Kiefel CJ, Bell, Gageler and Keane JJ, referring to s 74(1)(ca)(ii) of the Mining Act 1978 (WA), the text of which is set out at [8].

99 Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, referred to with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

100 See [46] - [48] above discussing Hofer.

101 Cf s 62A Interpretation Act (NT) and Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ.

52

obligation to consider the matters in s 67 of the Act.102 Although the

Commissioner should not engage in an assessment of the general merits

of the case, the test imposed by s 67 is not “low level” or merely

“regulatory”. 103 It requires the Commissioner to make “quite difficult

assessments”104 about whether the complaint is “frivolous or vexatious,

trivial, misconceived or lacking in substance, or [fails] to disclose any

prohibited conduct.”105 If, after exercising that function, the

Commissioner reasonably believes that one of those circumstances

exists, the power to decline the complaint on that basis is enlivened.

That is what occurred here.

[118] Finally, the Act puts the matter beyond doubt by providing an express

mandate for the Commissioner to decline a complaint under s 67(d) “at

any time”. The plaintiff’s contention cannot be reconciled with those

clear words. This ground is not made out.

Ground 3 – denial of natural justice

[119] The plaintiff contends that the Commissioner was required to give her

an opportunity to provide further materials or address concerns that the

Commissioner may have had before declining the Complaint and give

her the opportunity to amend the Complaint.106 The plaintiff also

102 Hofer at [39] – [40].

103 Ibid at [15].

104 Ibid.

105 Ibid at [11].

106 See [97] – [99] above.

53

contended that the Commissioner could have obtained more

information from TF.107 Despite her frequent references to having been

denied procedural fairness, she did not provide any authority to support

these contentions.

[120] Like any person making an administrative decision which affects

rights, interests and legitimate expectations, the Commissioner was

under a duty to act fairly, in the sense of according procedural fairness.

The application and content of such a duty will depend to a large extent

on the construction of the relevant statute and the circumstances of the

particular case.108 The latter might include circumstances peculiar to

the applicant, such as mental impairment, language difficulties or some

other disability. 109

[121] Where the decision maker is proposing to rely upon information

adverse to the interests of the applicant that has not been provided by

the applicant, the decision maker would normally be obliged to inform

the applicant of that adverse information and provide the applicant with

an opportunity to respond.110

[122] However such a requirement does not normally exist where, as here,

the decision was based solely on the material provided by the 107 TS 38. See too Plaintiff’s Further Submissions at [9].

108 Kioa v West (1985) 159 CLR 550 (Kioa) at pp 584 – 585 per Mason J.

109 There is no suggestion that the plaintiff had any such problems. Rather, she is a mature adult who has practised as a legal practitioner for some time.

110 See for example Kioa at 587 – 588 per Mason J and 628 per Brennan J; and Commissioner for Revenue (ACT) v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone)

54

applicant. In such cases, a decision maker is not normally required to

foreshadow his or her views on the material and give the applicant the

opportunity to make further comment.111

[123] Per the Full Court in Commissioner for Revenue (ACT) v Alphaone Pty

Ltd112 at pp 591 – 592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (underlining added by me)

[124] In the present matter:

(a) The Delegate did not rely on adverse material from another

source.

111 Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 (FFC) at

506.5 per Fox J and 513.5 per Neaves J followed in Alphaone at 591 and Brereton v Minister for Immigration and Ethnic Affairs (1995) 35 ADL 378; [1993] FCA 656 at [15] per Beazley J. See too Mason J in Kioa at p 587.

112 Alphaone per curiam (Northrop, Miles and French JJ).

55

(b) The prospect that the Complaint would be declined was apparent

from the terms of the Act, in particular the existence of the

Acceptance Stage and the terms of ss 66 and 67(d).

(c) The Decision was clearly open on the known material. The issue

on which the Decision turned (whether there was a link between

the alleged conduct and the plaintiff’s attribute) was fundamental

to the identification of prohibited conduct and the concept of

discrimination.

[125] As in Alphaone113 that issue was clearly brought to the plaintiff’s

attention by the Complaint form. Question 6 of that form placed

significant stress on the issue of causation, stating (emphasis in

original):

It is important to show that you were treated unfairly because of an attribute you have ticked at questions 3a & 3b. Explain why you think the way you were treated was based on your attribute.

[126] Having had that issue brought to her attention, the plaintiff was entitled

to support her Complaint with whatever information she considered

appropriate. She exercised that right and provided a substantial body

of material to the Delegate. The plaintiff cannot now complain that,

without more, the material she put forward was not accepted.114

113 At 592D – E.

114 Kioa at 587 per Mason J; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] per curiam; and Alphaone at 591 per curiam.

56

[127] Even if the Delegate did request the plaintiff to provide further

information or elaboration, I would have thought that it would be to

ask her to answer the very questions already asked in Questions 5 and 6

on the complaint form. As I have previously observed, it is clear from

the Act, particularly s 64(1)(b), that a complainant must “set out in

detail the alleged prohibited conduct” in the complaint. Were there

some obligation upon the Commissioner to revert to a complainant to

seek further information, it would be very difficult for the

Commissioner to comply with its statutory obligations, particularly

under s 66, which requires the Commissioner to perform the

Acceptance Stage and accept or decline the complaint within 60 days

after receiving the complaint. Notwithstanding the finality of the

Commissioner’s decision to decline a complaint, Parliament has

deliberately established this process for the prompt disposal of

complaints of the kind covered by s 67 of the Act.

[128] I reject this ground.

Disposition

[129] The plaintiff has not shown reviewable error on the part of the

Commissioner. Accordingly, the Application is dismissed.

[130] Whilst I acknowledge that the plaintiff feels aggrieved both on her own

behalf and on behalf of CM, and that she is bitterly disappointed with

the way she says she has been treated by Territory Families, this Court

57

is unable to provide her with the relief that she seeks in this

proceeding.

--------------------------

NTSC 78 Hil1814 Lavery v Anti-Driscrimination Commissioner ...

Documents