FEDERAL COURT OF AUSTRALIA

Wecker v Delegate to the President of the NSW Anti-Discrimination Board [2013] FCA 1167

THE COURT ORDERS THAT:

1.    The application filed 16 September 2013 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 16 September 2013, the applicant filed an originating application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of two decisions of the delegate to the President of the New South Wales Anti-Discrimination Board (Anti-Discrimination Board): the first was a decision not to list an application for leave to appeal to the Administrative Decisions Tribunal; the second was a decision not to hear the applicant’s case in the Anti-Discrimination Board. The complaints to the Anti-Discrimination Board were made on 30 July 2013 and 5 August 2013 and related to alleged discrimination against the applicant by the University of New South Wales.

2    The Anti-Discrimination Board is established pursuant to s 71 of Anti-Discrimination Act 1977 (NSW) (ADA NSW Act); it consists of five members, including a President: s 72. A person may make a complaint alleging that a provision of the ADA NSW Act has been contravened: s 87A. A complaint is made by lodging it with the President: s 89A. The President determines whether or not a complaint is accepted or declined: s 89B(1). The grounds on which the President may decline a complaint are set out in s 89B(2), including that the conduct complained of occurred more than 12 months before the complaint was made (s 89B(2)(b)).

3    The first respondent filed a Notice of Objection to Competency on 11 October 2013. The grounds of the objection are that:

1.    The President of the Anti-Discrimination Board declined the applicant’s complaint in accordance with s 89B of the ADA NSW Act and the applicant seeks a review of this decision;

2.    The Federal Court has jurisdiction to review certain administrative decisions under s 5 of the ADJR Act. Section 3(1) specifies the types of decisions to which the ADJR Act applies; and

3.    A decision under the ADA NSW Act is not a decision to which the ADJR Act applies.

4    The first respondent submits that the applicant carries the burden of establishing the competency of the application under r 31.05(2) of the Federal Court Rules 2011 (Cth) and if the Court decides that the application is not competent, the application is dismissed: r 31.05(5). Rule 31.05(1) provides for a Notice of Objection to Competency to be filed within 14 days after service of the application. No evidence has been provided of when the first respondent was served with the application but there are greater than 14 days between the date the application was filed and the date the Notice of Objection to Competency was filed.

5    At a directions hearing on 17 October 2013, the Court noted that the Federal Court Registry had advised the applicant that his application had been accepted in error and offering him the opportunity to withdraw it without incurring application fees; the applicant declined to withdraw his application. The Court invited brief written submissions from the parties concerning whether it had jurisdiction to entertain the application and drew attention to the decision of Greenwood J in Broadbent v Medical Board of Queensland (2011) 195 FCR 438, [2011] FCA 980.

Relevant law

6    Section 3(1) of the ADJR Act relevantly provides:

In this Act, unless the contrary intention appears:

…

Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.

decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

…

enactment means:

(a)    an Act, other than:

(i)    the Commonwealth Places (Application of Laws) Act 1970; or

(ii)    the Northern Territory (Self-Government) Act 1978; or

                          (iii)      an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or

…

(ca)      an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or

(cb)     an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or

…

7    Schedule 3 of the ADJR Act is as follows.

1        What this Schedule does

    This Schedule describes Acts of the States, the Australian Capital Territory and the Northern Territory, and parts of such Acts, that are enactments for the purposes of this Act.

2    State, ACT and NT Acts, and parts of such Acts, that are enactments

The following are enactments for the purposes of this Act:

(a)    an Act of a State, the Australian Capital Territory or the Northern Territory that applies, as a law of the State or Territory, the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth;

(d)    the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia;

(daa)    if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory—the National Gas Law as so applied;

(dab)     the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time, as that Law applies as a law of Western Australia;

(da)    the National Electricity (South Australia) Act 1996 of South Australia, or an Act of another State or of the Australian Capital Territory or the Northern Territory that applies the Schedule to that South Australian Act as a law of that other State or of that Territory;

(db)      the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, as that Law applies as a law of South Australia;

(dc)      if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, as that Law applies as a law of that other State or of that Territory—the National Energy Retail Law as so applied;

(e)      an Act of a State, the Australian Capital Territory or the Northern Territory that applies, as a law of the State or Territory, the text set out in Part 1 of Schedule 1 to the Competition and Consumer Act 2010 of the Commonwealth (which forms part of what is commonly known as the Competition Code);

(fa)      an Act of a State, the Australian Capital Territory or the Northern Territory that applies Schedule 2 to the Competition and Consumer Act 2010 as a law of the State or Territory;

(g)     the Petroleum (Submerged Lands) Act 1982 of Victoria;

(h)     the Petroleum (Submerged Lands) Act 1982 of Queensland;

(ha)      the Petroleum (Submerged Lands) Act 1982 of Western Australia;

(i)      the Petroleum (Submerged Lands) Act 1982 of Tasmania;

(j)    the Petroleum (Submerged Lands) Act of the Northern Territory.

Consideration

8    It is common ground between the applicant and the first respondent that s 5 of the ADJR Act confers jurisdiction on the Federal Court to entertain an application from a person who is aggrieved by a decision to which the ADJR Act applies. The decisions to which the ADJR Act applies are defined by s 3(1) and include a “decision of an administrative character made … by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) ... of the definition of enactment.”

9    The applicant referred to the decision in Broadbent and of Kerr J in Pardo v Australian Health Practitioner Regulation Authority (2013) 211 FCR 431 and went on to submit (emphasis and grammatical errors in original):

It is the definitions at s3 AD(JudRev)Act 1977, that constitute the background from which one should view both the ‘Broadbent’ and ‘Dr Nadira Pardo’ cases. In ‘Broadbent’ found was that the Federal Court had no jurisdiction over ‘Medical Board of Queensland and this was followed in ‘Dr Nadira Pardo’ as to the ‘Psychology Board of Australia’. This latter so because both were created by state Parliaments. Thus decided was that there could be no Commonwealth law or Commonwealth Officer involved in the administrative decision and that therefore “appeal rights” lay only with state courts.

Overlooked, however, in the above mentioned decisions, were ‘phrases including at section 3(1) “decisions to which this act applies” means a decision of an administrative character … made … (b) by a Commonwealth authority … … under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment.” Ad(JudRev)Act 1977.

‘Commonwealth Authority’ is defined under section 3 (1) AD(JudRev) Act 1977,

•    “Commonwealth Authority” means an authority or other body … that is established … by or under AN ACT.

•    “Under an Act”, as it stands, means any ‘Act of Parliament’ and therefore necessarily includes both ‘State’ and ‘Commonwealth’ ‘Acts’.

•    “Under an Enactment” means at s3(1)(b) [AD(JudRev)Act 1977] an Act referred to in paragraph (ca) or (cb) of the definitions of ‘enactment’.

•    Enactment means, at s3(1) paragraph (ca) “an Act of a state”.

Hence section 3(1) “decision to which this Act applies” means a decision … made [s3(1)(b)] by a Commonwealth Authority under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment.

NSD 1913/2013 refers to the definition of enactment in paragraph (ca) [enactment means] “AN ACT OF A STATE”, that is in this case, the NSW Anti-Discrimination Act 1977; the foundation Act of the NSW Anti-Discrimination Board.

Hence revealed is the legislative basis upon which the Federal Court of Australia has jurisdiction to hear AD(JudRev)Act 1977, section 5, “Applications for review of decisions” from ‘Commonwealth Authorities’ established by either Federal or State Acts of Parliament.

10    The first respondent submits that the Anti-Discrimination Board is not a “Commonwealth authority” because it is not constituted under an “Act” within s 38 of the Acts Interpretation Act 1901 (Cth) (Interpretation Act). Section 38 provides:

Reference to Acts

(1)    An Act passed by the Parliament of the Commonwealth may be referred to by the word “Act” alone.

(2)    An Act passed by the Parliament of the United Kingdom may be referred to by the term “Imperial Act”.

(3)        An Act passed by the Parliament of a State may be referred to by the     term “State Act”.

(4)        An Act passed by the legislature of a Territory may be referred to by     the term “Territory Act”.

11    Section 2 of the Interpretation Act provides:

Application of Act

(1)      This Act applies to all Acts (including this Act).

(2)    However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

12    The first respondent notes the manner in which the Anti-Discrimination Board is established and constituted under the ADA NSW Act as set out at [2] above and submits that since the Anti-Discrimination Board is not constituted under a Commonwealth Act, it is not constituted under “an Act” for the purposes of the definition of “Commonwealth authority” and it therefore cannot be a “Commonwealth authority”. I accept this submission: there is no contrary intention demonstrated in s 3(1) of the ADJR Act or in the definition of “Commonwealth authority” and therefore s 38 of the Interpretation Act applies.

13    The first respondent further submits that paragraph (ca) of the definition of “enactment” must be read in whole: that means that an Act of a State or Territory only has relevance if it is referred to in Schedule 3 of the ADJR Act, and the ADA NSW Act is not. I agree.

14    For these reasons, in summary and consistent with the decision of Greenwood J in Broadbent at [104]-[107], because the Anti-Discrimination Board is constituted under an act of the State of New South Wales and owes its jurisdiction to that Act, the Anti-Discrimination Board is not a Commonwealth Authority and because the ADA NSW Act is not mentioned in Schedule 3 to the ADJR Act its decisions are not subject to review by this Court under the ADJR Act. I reject the interpretation contended for by the applicant: it is plainly wrong.

15    Accordingly I have decided that the application is not competent; it is dismissed. I have no evidence that the first respondent’s Notice of Objection to Competency was filed within 14 days of service of the application on the first respondent as required by r 31.05(1); I will make no order as to costs for that reason.

Associate:

Dated:    8 November 2013