(a) in the opinion of the Commissioner, it is trivial, vexatious, misconceived or lacking in substance; or
(b) the complaint does not relate to discrimination or prohibited conduct; or
(c) the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or
(d) a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or
(e) in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or
(f) the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or
(g) in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority.”
3. The Applicant A lodged a complaint with the Commissioner dated 8 March, 2000. The Applicant’s complaint concerns the way he was treated as a cadet by Officers of Naval Reserve Cadets at the TS Tamar Unit. The complaint asserts that the conduct in breach of the Act occurred “May 1999, every Friday night and some Sundays. Ongoing till now” (page 4 of the complaint lodgement form). The complaint speaks of humiliation, intimidation, insults or ridicule and also refers to ‘victimisation’ (page 3 of the complaint lodgement form).
5. A concise statement of some of the allegations in this case appears in a document provided to the Respondents by the Commissioner and described as a summary of the complaint. The summary is in the following terms:
“A alleges that he ‘was picked on because I became friends with B’. Apparently, the whole it was forbidden to socialise with B. On two occasions Mr Cottrell told him to stay well away from B because he is ‘nothing but trouble’.
A alleged that the cades area assaulted by female cadets. One night a female cadet apparently kicked him in the shins which left him bleeding and bruised.
A alleges that the female cadets are given favourable treatment. For example, Mrs Cottrell order the male cadets to do harder jobs than the females. The females are allowed to smoke whereas the male cadets get in to trouble.
A alleges that after his mother complained about Mr Cash’s behaviour he [A] was singled out. A explains that he was provoked to ‘hit him’ or ‘abuse him back’.
On one weekend camp, PO Cash was telling A, Joe Cohen and Niekia Denholm how to break people’s backs, later that night they were taken from their bunks and sent onto the roadway in their boxer shorts, where members of the public walked by.
A alleges through lack of sleep he reused to do his quartermaster duty and got into trouble in front of everybody. A then decided to resign. He filled in the form and handed it to Mr Bryne. Mr Byrne advised him to change the form and state that he requests leave until he feels comfortable to return.
In addition, A provides a statement noting that on 6 November 1999, he was having fun on the dance floor and PO Cash stood 2 inches from his face and yelled ‘What the fuck do you think you are doing?’ he continued to sear and A has stated that he found him overbearing and intimidating (Emphasis in original)”.
6. By letter dated 27 April, 2000 the Commissioner notified the Applicant that the complaint was accepted for investigation. The people named as Respondents were Mr Cottrell, Mrs Cottrell, Mr Cash, Mr Edson, Mr Bryne as well as the Naval Reserve Cadets Tasmania. The Commissioner indicated that the complaint disclosed possible breaches of the Act involving sections 16, 17, 18, 22 and 104 of the Act.
The Commissioner’s decision and reasons
7. In March 2003 the Commissioner dismissed the complaint and provided detailed reasons for her decision in a letter to the Applicant dated 26 March 2003. The decision and reasons set out in that letter covered the Applicant’s complaint and also referred to a complaint made by the Applicant’s Mother Ms Morrison (also referred to as Ms Holloway). A file note by the Commissioner concerning both complaints provided supplementary reasons for dismissing the complaints. It appears that the Applicant (as well as Ms Morrison) was sent a letter from the Commissioner dated 28 March, 2003 in the same terms as the file-note. Unfortunately a copy of this letter sent to the Applicant is not included in the documents provided by the Commissioner in relation to this matter. It is assumed in the Respondents’ favour (noting that the file-note raises an additional ground of dismissal under s64(1)(b) which is not referred to as a ground of dismissal in the earlier letter dated 26 March, 2003) that a letter was sent dated 28 March, 2003 in the same terms as the file-note.
8. The letters dated 26 and 28 March, 2003 provided the Commissioner’s reasons for dismissing the complaint made by the Applicant. The letter dated 26 March, 2003 is lengthy and carefully considers a complex jurisdictional issue as well as usefully addressing various other legal and factual issues. It appears from a consideration of the letters that the principal reason for dismissing the complaint related to the failure of the Applicant to provide information that was sought at a meeting held with the Commissioner on 13 November, 2000. The Commissioner referred to this meeting and noted at para 4.4 and 4.5 of her letter:
“It further appeared from the matters put forward by the claimants that the claims as submitted to the Commission did not contain all issues and events, etc of concern to them, and all matters relevant to the claims and the provisions of the Anti-Discrimination Act 1998 had not been included in the original claims. Further, there was a view that some of the claimants had not named respondents whom they believed should be respondents to their claims.
This meant that:
· either the claims as they stood would require amendment, with the inclusion of more material; or
· the claims should be withdrawn as they stood, to be replaced by fresh claims incorporating all the matters which now appeared to be of importance and relevance; and/or
· the claims should be referred to the Anti-Discrimination Tribunal so that a determination on jurisdiction could be made; or
· the claims should be referred to the Human Rights and Equal Opportunity Commission in the light of the jurisdictional issue.” (Paras 4.4 and 4.5 of Commissioner’s dismissal letter)
9. The Commissioner referred to the outcome of a meeting held on that date which was that the claimants were to provide a detailed chronology of the matters in the claims and provide further statements or new claims so as to clarify and expand upon the original claims (para 11.3 of letter dated 27 March 2003). The Commissioner noted that as the information was not provided the claims were unable to be progressed. The Commissioner further indicated that she moved to assist progress of the claims by presenting a submission to the Military Justice Audit (para 11.9 of the letter). The Commissioner went on to say:
“The claimants quite properly chose to take the route of utilising the Military Justice Audit as the avenue for resolving the claims or at least arising the issues in the claims in an endeavour to resolve them. This was a commendable approach, and to be supported for the Military Justice Audit had as its focus the matters directly involved in your claims.” (Para 11.13 of Commissioner’s dismissal letter)
10. The Commissioner went on to state that once this was done it appeared to her that interest in pursuing the claims through the Commission lapsed. In these circumstances the Commissioner considered section 64(1)(c) and (e) of the Act applied (see paragraph 11.15 of Commissioner’s letter dated 26 March, 2003). The relevant part of section 64 is set out in paragraph 2 above.
11 As to whether the Military Justice Audit is a ‘commission’ the Commissioner noted the definition of ‘commission’ in the Act as meaning a body authorised by any Act to conduct inquiries and expressed the view that this might be relevantly applied to the Military Justice Audit (para 11.19). Further, the Commissioner went on to state:
“It also seems to me that a body established wholly for Defence Force purposes, including matters relating to Cadets, is more appropriate to deal with these matters giving solely to the operation of the Naval Cadets which, whether a body established by federal law or not, or wholly within the purview of the federal government and federal power or not, is a specialist body with specialist knowledge about the conduct and operation of the services.” (Para 11.20 of Commissioner’s dismissal letter)
12. As a further and alternative reason for dismissing the complaint the Commissioner referred to section 64(1)(g) of the Act. The Commissioner stated as follows:
“If I am wrong in this, then section 64(1)(g) in my opinion applies. That is, as earlier advised some of the conduct may come under the Anti-Discrimination Act 1998, and some may not, but may be covered by federal law administered by the Human Rights and Equal Opportunity Commission only. That is, some of the conduct complaint of appears to have occurred on federal government property which may not be susceptible to the operation of the Anti-Discrimination Act 1998, and some appears to have occurred on property which is not under the control of the federal government and therefore may be covered by the Anti-Discrimination Act 1998.
Because, as explained, the jurisdictional question is not straightforward, taking all matters into account and most particularly the question of convenience, it appears to be on balance more appropriate for the matter to be dealt with by the Human Rights and Equal Opportunity Commission, a Commonwealth statutory authority. (Paras 11.23 and 11.24 of Commissioner’s dismissal letter dated 26 March, 2003)”
13. The Commissioner made some comments at paragraph 3.75 of her letter dated 26 March, 2003 which have a bearing on her conclusion that the complaint should be dismissed on the basis of section 64(1)(g) of the Act:
“As noted earlier, if an alleged act of discrimination takes place in a state or territory outside property not owned and operated by the Defence Force the state Anti-Discrimination Acts may apply. All the alleged acts did not in these claims occur on Defence Force property and hence in respect of those the Anti-Discrimination Act 1998 may apply. However, because some did or may have occurred on federal property, it would be preferable to have them all dealt with ‘at once’ rather than piecemeal, some under the state legislation only. An issue here, too, is whether the fact that the land is not leased to the Defence Department (according to Mr Leeman) but to TS Tamar means it is not ‘Commonwealth land’. In a sense, there may be an issue here that begs the question: is TS Tamar itself ‘Commonwealth land or property’ or is it ‘something else’?
14. As a further reason for dismissing the complaint the Commissioner referred to section 64(1)(b) of the Act. The Commissioner stated the following in the file note in relation to this matter:
“The dismissal was solely in relation to section 71(1) by reference to section 64(1)(c), and in part by reference to section 64(1)(b). The latter provision relates to a portion of the claims only (as to age and other matters not continuing on or after 10 December 1999, taking into account the Tribunal’s decision in Buchanan v. Returned & Services League).”
15. As noted above, it is assumed that the Applicant was sent a letter to this effect dated 28 March, 2003.
16. The Commissioner gave detailed consideration in her dismissal letter dated 26 March, 2003(under the heading Part B) to a jurisdictional issue regarding the status of the Naval Reserve Cadets and whether the Act applied to the Cadets. The Commissioner considered the factual question of where responsibility for the Naval Cadets lay (para. 3.3). This question has been investigated by the Commissioner and she revealed the results of that investigation in her reasons. I do not propose to canvass these factual matters. The question articulated by the Commissioner was whether or not the Naval Reserve Cadets is a Commonwealth government organisation regulated by the Defence Force, through the Defence Act 1903 and the Naval Defence Act 1910 or is a community based youth training organisation incapable of existing without the support of state government/s local communities and volunteers (ref para 3.45).
17. The Commissioner also noted an argument raised by the Respondents that their service whether voluntary, or as instructors or officers, is regulated by the Defence Act 1903 and the Naval Defence Act 1910 and that, as these are federal Acts the ‘field’ is covered and the state legislation (the Act) has no force or effect (para 3.49). The Commissioner went on to consider case-law relevant to this point (para’s 3.60 and following). This issue may be referred to as the inconsistency argument arising by virtue of section 109 of the Constitution. As will be seen it is not appropriate for the Tribunal to consider this argument at this stage and so the Tribunal will not embark on a summary or consideration of the Commissioner’s reasons on this issue.
18. After consideration of the jurisdictional issue the Commissioner regarded it as unclear and did not make a determination about it (para. 3.71).
The course of proceedings before the Tribunal
19. The Applicant sought a review of the Commissioner’s decision by letter received by the Office of the Tribunal on 24 April, 2003. It should be noted that that letter not only sought a review of the decision in the Applicant’s case but also a review of a decision made by the Commissioner with respect to a complaint lodged by his Mother, Ms Morrison. That letter provides:
“Ms Leonie Morrison
13 Ray Street
Invermay, 7248
LAUNCESTON
23rd April, 2003
Re Claims: 00-235D. 00235F
Dear Ms Bridge,
We wish to appeal the decision handed down by Dr J Scutt on the 27th of March 2003 with regard to her dismissal of our claim.
The rejection of our claim appears to be based on the fact that we failed to lodge a chronology of events to Ms Crotty and Dr Scutt following a meeting with the above parties in Launceston the 13th November 2000.
It was my understanding the chronology was to be submitted for the purpose of composing a more concise picture of the events that led to our submission of complaint. However, we were not informed at anytime verbally or in written form that it was important to submit the chronology thus allowing Dr Scutt to make an informed decision on the next avenue required with regard to our claim. The importance of presenting the chronology was never at anytime expressed to us and therefore should not be used as a basis for dismissal of our claims. Dr Scutt also gave us a verbal assurance that Ms Crotty would be available to return to Launceston and establish another meeting with us, this was to finalise the chronology document. Ms Crotty failed to establish another appointment time with us and we therefore were of the personal understanding that it was of little relevance to our claim. I am upset that the issue of the chronology appears to be one of the main focuses to the rejection of our claims.
At the time of the meeting in Launceston Dr Scutt gave us a verbal reassurance that if she was unable to establish jurisdiction, Dr Scutt would formally forward our claim to the Human Rights and Equal Opportunity Commission in Sydney. We were assured by Ms Scutt that she would have a personal undertaking to forward this information and I recall the great relief I experienced by her conveyance of those words.
I wish highlight that Ms Crotty was our investigating officer and it had come to light that Ms Crotty had vacated her position within the Commission. Could you please state to me in writing the precise date that Ms Crotty vacated this position, and inform me as to why we were not conveyed this information at the time it occurred, and if indeed, another officer appointed to proceed with our claim?
The reasons that Dr Scutt claims “jurisdiction” or lack of are the basis for the rejection of our claim appears to be confusing in their interpretation to myself and I therefore request a meeting to allow clarification on the documentation of the findings presented by Ms Scut.
I am disappointed that the matter has never been resolved or a satisfactory outcome achieved. The information was presented with great detail and accuracy by all claimants and we followed the instructions from the investigating officer with diligence. The time frame is now three years and I feel that the events that have occurred since the lodgment of our claim appear to outline an irresponsible approach from us when indeed this was never the case.
Look forward to your response and to meeting with you as soon as possible.
Kind regards,
Leonie Holloway
A”
20. Once the Tribunal received that application a letter was sent to the Commissioner, in accordance with usual practice, requesting a copy of the complaint and other documentation. The request was dated 28th April, 2003. It was not until October, 2003 that the documents were forwarded to the Tribunal. This delay was referred to by the Commissioner and explained in her covering letter dated 3 October, 2003.
21. The application was listed for a conference on 14 January, 2004 at 10:00am before the Tribunal. The purpose of the conference was to ascertain an estimated hearing time, ensure that the parties had been provided with relevant documentation from the Commission, allow the parties an opportunity to be heard about whether the hearing should be closed to the public and to allocate a hearing date. The Applicant did not attend the conference. Two of the Respondents, Mr Greg Cottrell and Mr Byrne did not attend the conference. Due to the absence of some of the parties the conference was adjourned to 2 March, 2004. An indication was received from the Applicant’s Mother, Ms Morrison that the Applicant did not wish to attend the proceedings. The Tribunal requested that the Applicant confirm that in writing. A letter was sent to the Applicant from the Office of the Tribunal dated 16 January, 2004 informing him of the following:
“The Tribunal was advised that you do not wish to attend the hearing of the application. For your information you may wish to consider the following:
· You are not obliged to make submissions or present information at the hearing of your application if you do not wish to. Whether or not you wish to make submissions or present information is entirely a matter for you.
· The Chairperson determining your application, will as a matter of course, consider the papers provided to the Tribunal by the Commission together with your application dated 23rd April 2003.
· This consideration will be given to your case whether or not you choose to make submissions or provide additional information.
· It may be noted that the hearing of your application is an opportunity for you to present information which has not been presented to the Commission or make submissions which you consider may be helpful to your case.
An alternative approach you may take, if you wish, is to present any information or submissions in writing instead of attending the hearing.
Could you please confirm in writing if you do not wish to attend the hearing of the application and whether you wish to make any written submissions.”
22. The Office of the Tribunal received a letter dated 14 February, 2004 from the Applicant and Ms Morrison who had also lodged an application to review the Commissioner’s decision dismissing her complaint. That letter provided:
“14 February, 2004
Attention Sally Bridge
Dear Sally
When I began this complaint process I was assured of an equal playing field. However, at the most recent hearing I was left defending myself against a Navy “Top-gun” lawyer.
The commission has chosen to ignore the central issue of the physical mental and verbal abuse that my son and I have endured while he was at the unit. Instead, it has fallen into a quagmire of debate about jurisdiction (which in my opinion is a typical Defence Force tactic to protect the perpetrators).
My son and I refuse to be subjected to any more abuse. I find your anti-discrimination procedures to be discriminatory.
I brought this complaint because my child and I were the targets of a campaign of bullying and harassment. Many other are at risk, how many more are going to kill themselves before you step in and take action to protect them?
Where do you go to seek help and protection for the children, that are mentally, verbally and physically abused by the men in the cadet units? The police were not interested, the navy were not interested and neither is the anti-discrimination commission so when you dismiss our complaint with their jurisdiction argument this will mean that no child is safe from abuse - WHERE do you go for self protection?
I feel harassed and deprived of natural justice. I do not want to hear from you again, I will not partake in this farce or play this patriarchal game.
Leonie and A”
23. The Office of the Tribunal responded to that letter with a letter dated 23 February 2004 in the following terms:
“I refer to your letter dated 14 February 2004 in relation to the above matter.
It is noted that you do not wish to hear from the Tribunal again in relation to this application. However in light of a number of matters you raise in your letter I feel I must endeavour to clarify some points raised.
You presume that the Tribunal will uphold the Commissioner’s decision to dismiss the complaint. In particular you say,
“The police were not interested, the navy were not interested and neither is the anti-discrimination commission so when you dismiss our complaint with their jurisdiction argument this will mean that no child is safe from abuse -WHERE do you go for self protection?”
Please note that the Tribunal will undertake the review initiated by you and independently review the Commissioner’s decision. The Tribunal is completely separate from the Commission and has separate statutory functions and responsibilities under the Anti-Discrimination Act 1998. It is important to note that we are completely impartial, we are not on anybody’s side, we are objective and we review the Commissioner’s decision in an objective manner.
You may if you wish re-consider your position not to be involved in this process.
An option available to you is to write to the Tribunal setting out why you believe the decision is incorrect. If you take this course the Tribunal will take your document into account when reviewing the matter.
The conference will proceed on Tuesday 2 March 2004 at 10am and you are welcome to attend if you wish. The conference will give you the opportunity to raise any questions or concerns you may have in relation to the Tribunal’s procedures.”
Yours sincerely
Sally Bridge
Office of the Tribunal”
24. A response was not received to that letter. While the Applicant had indicated a wish not to hear from the Tribunal again and that he would not participate in the proceedings before the Tribunal he had not withdrawn his application to have the Commissioner’s decision dismissed. Accordingly, the Tribunal pressed on to deal with the application. The Applicant did not attend the conference held on 2 March, 2004 and the Tribunal indicated that the application would be dealt with in the absence of the Applicant.
25. At the time that the conference was held on 2 March, 2004 Mr Byrne, one of the Respondents had not been located and in the absence of any information regarding his whereabouts the Tribunal indicated that the application would proceed in his absence. At a subsequent conference held on 1 April, 2004 the Respondents indicated that they wished to be legally represented. The Respondents were informed by the Tribunal that there were other applications (made by Mr Peter Ford, Mrs Wilma Ford and B referred to as the ‘Ford matters’) involving the Naval Reserve Cadets and in relation to those applications the respondents were represented by a lawyer and there was to be legal argument about the Tribunal’s jurisdiction. After this was explained the Respondents indicated that if they were to be unrepresented then they would want these applications listed after the Ford matters had been heard to see if the decision on the Ford matters had implications for these applications. The Respondents in this case also wished to see if the same lawyer, Ms Brook would represent them. Accordingly, the application was adjourned for hearing to the 4 June, 2004 on the basis that the Respondents may request that the application in this case be brought forward to the same hearing date as the Ford matters. The application in this case was listed to be heard with the application by Ms Morrison which was to proceed in her absence.
26. At a later stage, Ms Brook requested that the application be brought forward and listed at the same time as the Ford matters. The application was brought forward in accordance with that request.
27. On 5 May, 2004 Ms Brook attended the Tribunal by telephone link on behalf of all of the Respondents in this matter. The application was stood down for hearing until after the hearing of the Ford applications. At the commencement of the hearing in relation to this application and Ms Morrison’s application Ms Brook stated that she relied on her written and oral submissions made on the Ford matters. Ms Brook indicated that she had not yet had the opportunity to consider the documents on the files involving this application and Ms Morrison’s application which had been provided to the Tribunal by the Commissioner. A direction was made by the Tribunal allowing Ms Brook access to the files subject to any documents that appeared to be confidential.
28. Ms Brook also requested an opportunity to provide supplementary written submissions. A direction was made giving Ms Brook an opportunity to provide supplementary written submissions by 7 June, 2004. The Tribunal indicated that if the Tribunal had any questions about any aspects of those submissions then the applications would be re-listed. The Tribunal also directed that copies of the submissions should not be provided to the Applicant and Ms Morrison noting their indication that they did not wish to participate in the proceedings (see above). At the conclusion of the hearing the Tribunal’s decision was reserved.
29. Supplementary written submissions from Ms Brook dated 16 June, 2004 were received by the Office of the Tribunal. An extension of time had been granted for the filing of those submissions until that date. These supplementary submissions address factual matters specific to this application and, as requested, the Tribunal has taken these submissions into account together with the submissions made on the Ford matters concerning the jurisdictional issue. It is noted that these submissions on jurisdiction are repeated in the later written submissions filed on 16 June, 2004. It is convenient to consider (as requested) the original written submissions (dated 15 April, 2004 and the amended set of those submissions filed 19 May, 2004) in relation to the jurisdictional issue and the later submissions dated 16 June, 2004 when considering issues specific to the complaint in this case. It is convenient to turn first to a consideration of the jurisdictional issue and the submissions made by Ms Brook concerning that issue. It may be noted that the Tribunal’s reasons in this case regarding the jurisdictional issue, raised in the Ford matters and relied upon by Ms Brook in this case, are the same as those provided in the Tribunal’s decisions regarding the Ford matters.
30. A summary of the Respondents’ submissions on jurisdiction filed on the Ford matters and relied upon in this application is set out in those written submissions (amended submissions filed 19 May, 2004) as follows:
“Part B - Summary of Submissions
3. This Tribunal has no jurisdiction to hear this application because:
The Naval Reserve Cadets (NRC) has no legal personality independent from the Commonwealth.
The Commonwealth is not a “person” for the purposes of the AD Act.
The Naval Reserves Cadets is not a “person” for the purposes of the AD Act.
See Paragraphs 19 to 48 below
As a matter of statutory construction, the Anti-Discrimination Act 1998 (Tas) (“the AD Act”) does not apply to the Crown in right of the Commonwealth or to the Naval Reserve Cadets.
Accordingly, neither the Commonwealth nor the Naval Reserve Cadets can be made the subject of a complaint under the AD Act.
See Paragraphs 49 to 66 and 98 to 102 below
The proper respondent for matters involving the Australian Cadet Forces is the Commonwealth of Australia. Individual officers and instructions of the Australian Cadet Forces, members of the Australian Defence Force and Members of Parliament should not be named as Respondents in either of these cases.
See Paragraphs 67 to 68 below
31. The written submissions made on behalf of the Respondents did not extend to “questions of constitutional law regarding implied constitutional immunity and inconsistency between Commonwealth and State laws”. (para 69 of Respondents written submissions filed 19 May, 2004). The Respondents sought leave to have those questions determined at a later date if all the other questions are determined against them.
32. At the outset of the hearing on the Ford applications the Tribunal raised with Ms Brook the fact that her written submissions (dated 15 April, 2004) contained new factual information that was not before the Commissioner. In fact, some of the facts relied on by the Commissioner and set out in her decision (para. 3.4 and following) were contested by the Respondents. It should be noted that these proceedings are not the forum to resolve issues of fact. This application to review the Commissioner’s decision is an opportunity for the Tribunal to determine whether, according to the facts available to the Commissioner, the Tribunal is satisfied that the Commissioner made a correct decision. While the Tribunal has previously held in other cases (refer Geoffrey Dean -v- Department of State Development (Arts Tasmania) [2003] TASADT 10) that the Tribunal has a discretion to admit fresh factual material it would not be appropriate to exercise that discretion in this situation where respondents are seeking to contest factual conclusions reached by the Commissioner and advance information in order to refute those facts. It should be noted that if a decision of the Commissioner is overturned then the Tribunal is to deal with the complaint as if it were an Inquiry (section 72(3)) and it would be at that stage that factual disputes may be resolved.
33. Once this matter was raised with Ms Brook and she was informed that the Tribunal could not resolve the issues of fact and ought to disregard the new facts, those aspects of the submissions containing the new factual information were not relied upon and Counsel lodged amended submissions after the hearing and filed 19 May, 2004 identifying the new information and distinguishing it from information that was before the Commissioner. The Tribunal has disregarded those parts of the submissions which contain new information.
The submissions
34. The submissions made by Ms Brook on behalf of the Respondents considered the relationship between the Commonwealth and the Australian Services Cadet Scheme including the Naval Reserve Cadets. Ms Brook addressed the legislative scheme governing the Naval Reserve Cadets and submitted that the Cadets do not have an independent legal or juridical personality separate from the Commonwealth.
35. Ms Brook also addressed the structure and administration of the Australian Services Cadet Scheme. Submissions were made applying a decision of the Anti-Discrimination Tribunal in Murphy -v- Family Court of Australia [2002] TASADT 9 and it was argued that the Naval Reserve Cadets is not a ‘person’ for the purposes of the Act. It was submitted that the Cadets are a manifestation of the Commonwealth and do not fall within the meaning of ‘person’ or ‘organisation’ in the Act. Furthermore, section 4 of the Act was relied upon which provides:
“This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.”
36. It was submitted that “in the absence of an express intention to bind the Crown in right of the Commonwealth, it is submitted that s4 cannot be construed to mean that the Tasmanian Parliament intended to bind the Crown in right of the Commonwealth.” (para 59 of written submissions filed 19 May, 2004). It was submitted on behalf on the Respondents that the construction of the Act makes it clear that the Tribunal was not established to inquire into a complaint of discrimination against a Commonwealth body.
Consideration of the submissions on jurisdiction
37. The Tribunal has considered the submissions that were made but has determined that it is not appropriate at this stage to decide the questions of whether the Naval Reserve Cadets is an emanation of the Commonwealth and whether the Act applies to a body which is an emanation of the Commonwealth. There are authorities which would need to be considered which have not been the subject of any submissions. As a starting point, there are cases which assist in determining whether a body may be regarded as an agent or emanation of the Commonwealth: Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (1996) 190 CLR 410, Townsville Hospitals Board -v- Council of the City of Townsville (1982) 149 CLR 282. Further, there are cases which suggest that, contrary to the submission made by Ms Brook, an express intention to bind the Crown in right of the Commonwealth is not required in order for the State legislation to bind the Commonwealth: Bropho -v- State of Western Australia (1990) 93 ALR 207 and Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority. Section 6(6) of the Acts Interpretation Act would need to be considered as well as cases which have considered the meaning of that section.
38. The jurisdictional issue is a complex one and requires consideration of cases which have not been the subject of submissions. It would not be appropriate to determine the jurisdictional issue without the advantage of further submissions. The Tribunal is of the view that the appropriate course is to consider the jurisdictional issue at a later stage if the Commissioner’s decision is overturned. The advantage of this course is that the issue may be determined during a preliminary hearing when evidence may be called. It is anticipated that by then the Tribunal will also have the advantage of a Tribunal decision on point in Susan Campbell on behalf of Eleanore Tibble and Susan Campbell -v- FLGOFF B Smith, FLGOFF G Kowalik and Australian Air Force Cadets.
Other submissions
39. Ms Brook made other submissions (refer written submissions filed 16 June, 2004) which focus on the particular complaint before the Tribunal. It was submitted that the complaint is statute barred by virtue of the application of section 108 of the Act. Section 108 of the Act provides:
108. (1) This Act does not apply to discrimination or prohibited conduct that took place and concluded before the commencement of this Act.
(2) This Act applies to discrimination and prohibited conduct within the meaning of the Sex Discrimination Act 1994 that took place after the commencement of that Act.
40. Ms Brook submitted that the various incidents referred to in the complaint occurred and were concluded prior to the Act entering into force. Ms Brook submitted that there was no aspect of the Applicant’s applications that could enliven the limited continuing effect of the Sex Discrimination Act 1994 (Tas) (written submissions filed 16 June, 2004).
41. It was also submitted that there is no material to suggest a prima facie case of discrimination or offensive conduct on the basis of gender (para. 111 of written submissions filed 16 June, 2004).
42. It was further submitted on behalf of the Respondents that the conduct alleged by the Applicant did not amount to victimisation under the Act. It was submitted that there is no suggestion that the impugned conduct occurred as a result of any efforts of the Applicant to make a complaint under the Act. Further, it was submitted that the impugned conduct concluded prior to the Act coming into effect which would preclude any reliance upon the grounds expressly stated in section 18(1) of the Act.
43. It was further submitted that there was a lack of material suggesting an area of activity under section 22 of the Act and that section 22(1)(e) of the Act relating to ‘clubs’ and section 22(1)(c) of the Act relating facilities, goods or services do not apply.
44. Ms Brook submitted that the Commissioner made a determination that the complaint did not constitute discrimination or prohibited conduct within the meaning of the Act (paragraph 108 of written submissions filed 16 June, 2004).
The application of s64(1)(b)
45. Ms Brook submitted that the Commissioner was correct to dismiss the complaint on the basis of section 64(1)(b) of the Act. However, the Tribunal’s view is that the Commissioner did not dismiss the complaint on the basis of this provision. It is clear from a determination of the Commissioner’s reasons that she considered section 64(1)(b) related to a ‘portion of the claims only (as to age and other matters not continuing on or after 10 December 1999)” (see file-note and letter apparently sent to Applicant dated 28 March, 2003). The Commissioner’s reasons in her earlier letter dated 26 March, 2003 supported this conclusion. For example at paragraphs 10.26 and 10.27 the Commissioner stated:
“It seems to me more likely that you would succeed, if you did, on a ‘direct’ discrimination argument than an ‘indirect’ discrimination argument.
Whatever the case on that point, the claims indicate a possibility of succeeding on the ‘direct’ discrimination basis as to sex/gender. Therefore, I do not dismiss your claim on that basis.” (Paras 10.26 and 10.27 of Commissioner’s dismissal letter dated 26 March, 2003)
46. It appears from the Commissioner’s dismissal letter to the Applicant dated 26 March, 2003 that she considered that the complaint may give rise to a finding of direct discrimination on the basis of gender.
47. It is apparent from the Commissioner’s determination and reasons provided in both letters that she determined that section 108 may operate to exclude some aspects of the complaint from the operation of the Act. The application of section 108 would depend on the detail of the conduct alleged and when it occurred. Section 108 provides:
“108. (1) This Act does not apply to discrimination or prohibited conduct that took place and concluded before the commencement of this Act.
(2) This Act applies to discrimination and prohibited conduct within the meaning of the Sex Discrimination Act 1994 that took place after the commencement of that Act.”
48. The Commissioner’s conclusion that the Act may not apply to some conduct which concluded before the commencement of the Act (the Act commenced on 10 December 1999) is clearly correct. Section 108 of the Act may potentially apply to aspects of the complaint. The Commissioner noted that ‘age’ based discrimination was not unlawful before the commencement of the Act. It follows that if alleged conduct is properly regarded as age based discrimination and such conduct had concluded before the commencement of the Act then the Act could not apply by virtue of section 108(2). In any event, the Commissioner’s remarks about section 108 were to the effect that section 108 only applied to exclude parts of the complaint. The Commissioner determined that aspects of the complaint did relate to discrimination and prohibited conduct. It is expected that Counsel for the Respondents would argue that if this is the proper construction of the Commissioner’s reasons then the Commissioner was incorrect and that she ought to have dismissed the complaint by reference to section 64(1)(b) of the Act on the basis that the allegations did not relate to discrimination or prohibited conduct. In order to give full consideration to the Respondents’ submissions regarding the application of section 64(1)(b) of the Act I turn to a consideration of whether or not the Commissioner’s determination that the Act applied to some conduct alleged in the complaint was correct.
Should section 64(1)(b) have been applied to the entirety of the complaint
49. One of the submissions made by Ms Brook was that the alleged conduct did not fall within one of the areas of activity set out in section 22(1) of the Act. If it appears from the material that one of the specified areas set out in section 22(1)(a)-(g) of the Act could not apply to the conduct alleged by the Applicant then the complaint could not succeed. However, it appears from the material before the Tribunal that the facts as alleged may fit the area of activity under section 22(1)(b) - ‘education and training’. This area of activity was referred to by the Commissioner in her decision (para 10.5 of dismissal letter dated 26 March, 2003). It is not necessary that the Tribunal consider any other areas of activity under section 22 of the Act and whether they might have application here. For consideration of the breadth of section 22 compared with other comparable legislation see Houston -v- Burton [2003] TASADT 3 at para 113 and 114.
50. The Commissioner considered that direct discrimination on the basis of gender was open (para’s 10.26 and 10.27 of dismissal letter dated 26 March, 2003)
Direct discrimination is set out in section 14 which provides:
“14. (1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.
(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.
(3) For direct discrimination to take place, it is not necessary -
(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or
(b) that the person who discriminates regards the treatment as unfavourable; or
(c) that the person who discriminates has any particular motive in discriminating.”
51. In relation to direct discrimination the Commissioner was mindful of the requirement in section 14 of the Act that the treatment alleged must be on the basis of a prescribed attribute under section 16 of the Act (see para’s 10.22 and 10.23 of letter dated 26 March, 2004).
52. According to the case law that applies to direct discrimination there is a need for the Tribunal to consider all the circumstances and characterize the true reason/reasons for the conduct: Kapoor -v- Monash University and Anor (2001) VSCA 247 at para’s 36 and 37, Houston -v- Burton [2003] TASADT 3. In light of the nature of the proceedings before the Tribunal the question may be posed “is there information indicating that the true reason or one of the true reasons for the conduct complained about was one of the prescribed attributes in section 16 of the Act?”
53. Applying section 14 of the Act and the applicable case-law the Tribunal considers that there is sufficient material to indicate that the Tribunal could find that in some instances the Applicant was treated less favourably on the basis of gender. The allegation that a group of male cadets were told to stand out in the road in underwear at midnight, in full view of the public is conduct that suggests that male cadets were discriminated against on the basis of their gender. There are allegations that the Applicant and other male cadets were disciplined more harshly than female cadets and that female cadets were treated in a more lenient fashion. The allegation that on the 6 November 1999 the Applicant was having fun on the dance floor and PO Cash stood 2 inches from his face and yelled “What the fuck do you think you are doing?” is also conduct which could be regarded as discrimination on the basis of gender. The inference may be drawn that the Officer would not have responded to a female cadet in that way under the same circumstances. The Tribunal could draw the inference that the Applicant’s gender was the basis for the treatment even if it was not the sole ground for the response.
54. In view of the Tribunal’s conclusion referred to above that some aspects of the complaint, if proved, may amount to a breach of the Act it is not necessary to reach a view about whether other alleged conduct may be viewed as discrimination or prohibited conduct.
55. Allegations of direct discrimination on the basis of gender are not statute barred. They were covered by the Sex Discrimination Act 1994 and so by virtue of section 108(2) the Act would apply to such allegations.
56. It is not necessary for the Tribunal to decide whether the conduct alleged if proven could amount to indirect discrimination. It is neither necessary nor desirable that the Tribunal considers every allegation of fact and every possible construction of those facts as well as every possible provision of the Act which might have application. It is sufficient to note that some of the allegations of the complaint if proved may amount to a breach of the Act as direct discrimination on the basis of gender as set out above.
57. It is desirable that once the complaint is before the Tribunal the complaint be confined to those incidents which could be covered by the Act. It would seem appropriate that aspects of the Applicant’s case should be scrutinised to exclude aspects of the case or to exclude Respondents where the case is so weak that it could not sustain a finding under the Act. This scrutiny may take place before Inquiry once the Applicant has been provided with an opportunity to be heard. At an appropriate stage I will hear from the parties as to these and other matters.
The basis for dismissal:
The Military Justice Inquiry
58. The context of the Commissioner’s determination that the Inquiry into Military Justice afforded a more appropriate remedy was the failure of the Applicant and others to provide additional material as requested at a meeting held in Launceston on 13 November, 2000. The Commissioner regarded this material as critical so that without it the complaints could not be progressed. On the other hand, it appears from the Applicant’s letter to the Tribunal that the Applicant did not have the same understanding as the Commissioner of what was required of him and the significance of the requirement. Furthermore, the Applicant and Ms Morrison held an expectation that a staff member of the Commissioner’s Office would arrange a meeting with them and this was not done. While making these observations I should add that the Tribunal has not reached a view about the facts of the meeting but the Tribunal simply notes that the Commissioner and the Applicant did not share the same understanding of those facts.
59. In deciding that the Inquiry into Military Justice afforded the Applicant and others with a more appropriate remedy than the proceedings under the Act the Commissioner took into account her understanding of the wishes of the Applicant and also her view that the Inquiry provided specialist knowledge about the conduct and operation of the Services. The Commissioner also drew to the Applicant’s attention that her submission to the Inquiry comprehensively addressed the Applicant’s problems and concerns. In the Tribunal’s view these are important matters to take into account. However, there are other considerations which compel the Tribunal to take the view that the decision dismissing the complaint on the basis of section 64(1)(c) and (e) of the Act was not correct.
60. As noted above the Commissioner considered that section 64(1)(c) and (e) of the Act applied. It must be noted that section 71(1) sets out that section 64(1)(c) is available as a ground of dismissal but not section 64(1)(e) of the Act. Of course, it may be that the Commissioner took into account the application of section 64(1)(e) of the Act as providing an unnecessary but additional reason for the dismissal of the complaint supplementing the actual reason for dismissal under section 64(1)(c) of the Act.
61. The Tribunal considers that section 64(1)(c) of the Act does not apply. The Applicant has not commenced proceedings in a commission ie the Inquiry into Military Justice in the Australian Defence Force . All that occurred was that the Commissioner had made a submission to Mr J.C.S. Burchett, Q.C. incorporating the Applicant’s concerns. Further, to this point is the fact that the terms of reference do not appear to extend to a consideration of the Australian Cadet Forces and allow satisfactory consideration of the Applicant’s concerns.
62. The Report of the Inquiry dated July 2001 is included in the documents provided by the Commissioner to the Tribunal and does not specifically address the Applicant’s concerns. While a consideration of a summary of the Commissioner’s submission made to the Inquiry (see Commissioner’s reasons at para 6.1 of her dismissal letter dated 26 March, 2003) reveal that the Commissioner gave a considered and no doubt valuable perspective on issues arising from complaints before her, the benefit to the Applicant from the Inquiry has not resulted in a tangible remedy. Further, section 64(1)(c) does not apply because it could not be said that Mr Burchett Q.C. may order remedies similar to the remedies available under the Act.
Section 64(1)(g)
63. The Commissioner considered that the complaint may more conveniently be dealt with by the Human Rights and Equal Opportunity Commission (HREOC) and therefore section 64(1)(g) of the Act applied. However, section 71(1) of the Act sets out possible grounds of dismissal and section 64(1)(g) is not available as a ground of dismissal. In this case even if section 64(1)(g) had been available as a ground of dismissal, the Tribunal respectfully disagrees with the Commissioner concerning the application of that provision to this case.
64. The Commissioner expressed the view that some conduct may not be covered by the Act because of the implications of the jurisdictional issue (para 3.75 referred to earlier). It should be noted that at the time the Commissioner made her decision and even now, the question of jurisdiction is not clear. If it was apparent that the Act did not apply at all or only covered some conduct then it might be said that the subject matter of the complaint may be more effectively or conveniently dealt with by the HREOC. Absent that determination about jurisdiction and given the history of these proceedings and the time that the complaint has been with the Commissioner and now, the Tribunal, it is not apparent that the complaint may be more effectively or conveniently dealt with by the HREOC.
Conclusion
65. The Tribunal is not satisfied that the Commissioner made a correct decision dismissing the complaint pursuant to section 64(1)(c), (e) and (g) of the Act. While the Commissioner applied section 64(1)(b) of the Act and referred to it in her reasons, the sub-section was applied as supplementing her primary reasons for dismissing the complaint and was only relied upon by the Commissioner to dismiss parts of the complaint. The Tribunal considers that the Commissioner was correct in only applying section 64(1)(b) to some aspects of the complaint. The Tribunal concludes that section 64(1)(b) does not apply to the entirety of the complaint.
66. In conclusion, the Tribunal is not satisfied that the Commissioner made a correct decision dismissing the complaint. Pursuant to section 72(3) of the Act the Tribunal will proceed to deal with the complaint as if it were referred to the Tribunal for Inquiry. Having so concluded, the Tribunal’s earlier comments, set out above, should be noted that there are substantive issues outstanding regarding the jurisdiction of the Tribunal and it would seem sensible that these issues should be considered as preliminary issues by the Tribunal once the complaint is before the Tribunal for Inquiry. The Tribunal will hear from the parties on this matter.
