K v Domestic Violence Crisis Service Inc [2000] HREOCA 29 (26 July 2000)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

Matter: H95/49

BETWEEN:

K

Complainant

AND:

DOMESTIC VIOLENCE CRISIS SERVICE INC

Respondent

REASONS FOR DECISION ON PRELIMINARY MATTER OF INQUIRY COMMISSIONER GRAEME INNES

Date of Decision: 26 July 2000

Appearances: O’Connor Harris for the Complainant

Gary Robb & Associates for the Respondent

1. INTRODUCTION

The matter before me for consideration arises from a complaint made by the complainant, K, to the Human Rights and Equal Opportunity Commission (“Commission”) under the Sex Discrimination Act 1984 (Cth) (“SDA”) against the Domestic Violence Crisis Service Inc (“DVCS”) in February 1994. The complaint was referred for hearing by the Commission by the then Sex Discrimination Commissioner in March 1995 pursuant to s.57(1) of the SDA.

The complaint came before then Commissioner Michael Dodson for hearing. It should be noted that on 1 September 1997, Commissioner Dodson made an order pursuant to s.67(1) of the SDA that any information that might enable K or his family to be identified shall not be published. That order is still in existence and has not been revoked.

On 20 January 1998, Commissioner Dodson dismissed K’s complaint under the SDA and published his Reasons for Decision. That decision was the subject of an application by K to the Federal Court of Australia pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). On 16 June 1999, His Honour Justice Finn allowed K’s application, set aside the decision of the Commission and remitted the matter to the Commission for further consideration.

On 9 November 1999 I made a number of directions in relation to the matter so as to prepare it for rehearing. I subsequently vacated those directions and adjourned the matter sine die pending a decision of the Commonwealth Attorney-General in relation to an application made by K for legal aid. The representative for the complainant advised the Commission on 16 March 2000 that a grant of legal aid had been made and on that date I made further directions in relation to the matter so as to prepare it for rehearing.

On 4 April 2000, the representative for K wrote to the Commission concerning the application of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) (“HRLAA”) and challenging the Commission’s jurisdiction to hear the matter that had been remitted to it by the Federal Court.

On 17 April 2000 I directed that the complainant file and serve written submissions addressing the challenge to Commission’s jurisdiction by 28 April 2000 and that the respondent file and serve written submissions on the issue of the Commission’s jurisdiction by 12 May 2000.

The submissions on behalf of the complainant were received on 28 April 2000. The representative for the respondent advised the Commission on 5 June 2000 that it did not wish to be heard nor have any submissions to make in relation to the question of jurisdiction.

2. THE SUBMISSIONS OF THE COMPLAINANT

The essential thrust of the submissions made on behalf of the complainant is that the Commission does not have jurisdiction to hear the matter remitted to it by the Federal Court because of the operation of provisions of HRLAA that commenced on 13 April 2000 (that is, six months after HRLAA received Royal Assent: see s.2(3) of HRLAA).

The relevant provisions of HRLAA relied upon by the complainant are ss.12 and 13. They provide as follows:

“12 Complaint referred to Commission but inquiry not started

(1) A complaint is treated in the way set out in subsection (2) if, before the starting day:

(a) the appropriate Commissioner referred the complaint to the Commission; and

(b) a holding of an inquiry into the complaint had not started under the old DDA, old RDA or old SDA; and

(c) the complaint had not been withdrawn under whichever of the following sections is applicable:

(i) section 79 of the old DDA;

(ii) section 25A of the old RDA;

(iii) section 59 of the old SDA.

(2) On the starting day, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note: The President is required to give a notice of termination of the complaint under section 14 of this Act.

13 Inquiry started

(1) A complaint is treated in the way set out in subsection (2) if, before the starting day:

(a) a holding of an inquiry into the complaint had started under the old DDA, old RDA or old SDA; and

(b) the complaint had not been withdrawn under whichever of the following sections is applicable:

(i) section 79 of the old DDA;

(ii) section 25A of the old RDA;

(iii) section 59 of the old SDA.

(2) The amendments made by Schedule 1 to this Act do not apply in relation to the complaint.”

The submission made on behalf of the complainant is that as I had only made directions in relation to the remitted matter prior to 13 April 2000, the holding of an inquiry into the complaint had not started as required by s.13(1)(a). Therefore the provisions of s.12 applied and on 13 April 2000 the President was required to terminate the complaint and issue a notice of termination in relation to it. The effect of this termination would be that the complainant could use the notice of termination to initiate proceedings in the Federal Court in relation to the subject matter of the complaint.

The complainant’s submissions also provide that:

“the public policy behind the recent legislative changes is that the decisions made by the Federal Court are enforceable but decisions made by the Commission are not. It would therefore be preferable in the current excruciatingly long matter for the finality of proceedings to be a legitimate goal for all parties. A hearing in the Federal Court would provide this goal in the manner contemplated by the legislation”.

3. DECISION AS TO COMMISSION’S JURISDICTION

As stated above, the complainant relies upon the operation of sections 12 and 13 of HRLAA to support the application that the complaint should be terminated and a notice of termination issued. This is no doubt the result of there being no specific transitional provision that relates to the situation where a complaint that was the subject of a public inquiry has been remitted to the Commission by the Federal Court either before or after 13 April 2000. This should be compared to s.11 of HRLAA that provides:

11 Administrative review of President’s decision

(1) A complaint is treated in the way set out in subsection (2) if:

(a) before the starting day, the President made a decision in relation to the complaint under:

(i) section 101 of the old DDA; or

(ii) section 24AA of the old RDA; or

(iii) section 52A of the old SDA; and

(b) on or after the starting day, the Court makes an order under the Administrative Decisions (Judicial Review) Act 1977 to refer the matter to which the decision relates to the Commission for further consideration.

(2) On the day the order is made, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note: The President is required to give a notice of termination of the complaint under section 14 of this Act.

Section 11 provides certainty as to the status of matters that were the subject of a decision by the President that are remitted to the Commission on or after 13 April 2000. There are, however, no equivalent transitional provisions in relation to the remittal by the Federal Court of matters before or after 13 April 2000 that have been the subject of public inquiry or the remittal by the Federal Court of matters before 13 April 2000 that have been the subject of a decision by the President.[1]

I am of the view that the absence of any reference in ss.12 and 13 to circumstances where there is remittal by the Federal Court under the ADJR Act results in it not being possible to read those provisions as addressing the situation of remitter.

The absence of such specific transitional provisions leads me to the conclusion that s. 8 of the Acts Interpretation Act 1901 (Cth) is the relevant provision to be applied in these circumstances.

Section 8 of the Acts Interpretation Act 1901 (Cth) provides that:

Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(a) ...

(b) ...

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or

(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.

The SDA, unamended by HRLAA, conferred on a complainant a right to the hearing and determination of a complaint referred to the Commission for that purpose and a right to a determination of discrimination conditional upon a finding by the Commission that the complaint was substantiated. Proceedings under the ADJR Act challenging a determination or related decision of the Commission are proceedings “in respect of” such a right and any remedy resulting from those proceedings may be “enforced ... as if the repealing Act had not been passed”.[2]

It follows that the effect of s.8 of the Acts Interpretation Act is that the Commission must hear K’s complaint as remitted to it by Justice Finn on 16 June 1999 in accordance with the SDA in its unamended form. I can find nothing in the transitional provisions of HRLAA that manifests a contrary intention to this outcome.

I should state, however, that I am not unsympathetic to the sentiments expressed by the representative for the complainant that if the rehearing of the matter results in a determination in favour of the complainant then that determination is unenforceable and it can only be enforced by a hearing de novo in the Federal Court. This is the very situation that the transfer of the Commission’s hearing jurisdiction under HRLAA to the Federal Court is designed to remedy. I believe that it is an unsatisfactory outcome that the lack of appropriate transitional provisions will result in parties to matters remitted to the Commission by the Federal Court (other than those provided for in ss.6 and 11 of HRLAA) will find themselves involved in a jurisdiction where an unenforceable determination may be the outcome and the President is powerless to terminate the matter so as to permit the complainant to enter the parallel enforceable jurisdiction that now exists in the Federal Court. I am of the view, however, that this is the situation that will prevail unless legislative amendment is made to the transitional provisions of HRLAA so as to override the effect of s.8 of the Acts Interpretation Act.

I, therefore, dismiss the complainant’s application that this matter should be taken to be terminated pursuant to s.12(2) of HRLAA. I direct that a directions hearing be conducted in relation to this matter within 21 days so as to prepare this matter for rehearing in accordance with the order of remittal made by the Federal Court on 16 June 1999.

Dated in Sydney this 26th day of July 2000

.........................................

Graeme Innes AM

Hearing Commissioner

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[1] See also s.6 of HRLAA that relates to the situation where the Federal Court remits to the
Commission a matter relating to a decision of the Commission as to whether a purported
complaint is a complaint or not.
[2] ACI PET Operations Pty Ltd v Comptroller-General of Customs [1993] FCA 500; (1993) 118 ALR 114 at 126. See
generally, Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440-441; Yao v Minister for
Immigration and Ethnic Affairs [1996] FCA 1792; (1996) 69 FCR 583 at 588- 590.