Anti-Discrimination Decisions

[2008] TASADT 02

Catchwords:

Equal opportunity - Review of Commissioner's decision dismissing complaint - Whether correct for Commissioner to apply exception or whether should be considered at Inquiry - Question of whether the complaint is obviously hopeless or untenable - Anti-Discrimination Act 1998 (Tas) ss55(c)(ii), 65(2), 72(3)

Representation:

Reasons For Decision

1. Ms Delaney has applied to the Anti-Discrimination Tribunal (the ‘Tribunal’) to review the decision of the Anti-Discrimination Commissioner (the ‘Commissioner’) dismissing her complaint.

2. The complaint was made under the Anti-Discrimination Act (the ‘Act’) and alleges that a pamphlet distributed by the Respondent, the Liberal Party of Tasmania during the most recent State election campaign is capable of inciting hatred on the basis of sexual orientation, and in particular, against same sex attracted persons/couples. The pamphlet states that the Tasmania Greens policy of "full access to marriage laws for same sex couples in Tasmania" is "socially destructive change". It was alleged that the author of the pamphlet was the Liberal Party of Tasmania and that it was distributed by the Respondent to households throughout Tasmania.

3. The history of the complaint before the Commissioner and the Tribunal is as follows. The complaint was lodged with the Commissioner on 13 March 2006. By letter dated 12 April 2006 the Commissioner informed Ms Delaney, the Applicant, that her complaint had been rejected on the basis that it was "lacking in substance" and provided reasons for that decision. The Applicant then made an application to the Tribunal to review that decision under s65(2) of the Act. The Tribunal delivered a written decision, dated 10 January 2007, concluding that it was not satisfied that the Commissioner’s decision to reject the complaint was correct. Pursuant to s72(2) the compliant was referred to the Commissioner for investigation.

4. The Commissioner investigated the complaint and then by letter, dated 30 April 2007, informed the Applicant that her complaint had been dismissed under s71(1)(a) of the Act on the basis that it was "lacking in substance" under s64(1)(a) of the Act. The Commissioner provided reasons for her decision. In essence, the Commissioner concluded that while the conduct complained about may possibly breach s19(c) of the Act as it is possibly capable of inciting serious contempt or severe ridicule on the ground of sexual orientation, s55(c)(ii) of the Act provides the Respondent with a defence. Section 55(c)(ii) states that s19 of the Act does not apply to public acts done in good faith for any purpose in the public interest.

5. The Commissioner applied a decision of Deen v Lamb (2001) QADT 20 and expressed the view that it is in the public interest for the electorate in Tasmania to know what the views of the Liberal Party are in relation to same sex marriages, and this is an integral part of a democratic political process. In relation to the requirement of "good faith" in s55(ii)(c) the Commissioner stated that she had "formed the view that the Liberal Party acted on an honest belief that certain Greens’ policies represent socially destructive change, including the Greens’ policy of supporting same sex marriage. Therefore, the circumstances of the complaint do not suggest that the Liberal Party acted other than in good faith."

6. An application to the Tribunal to review this decision was made by the Applicant dated 14 May 2007.

7. The application was listed before the Tribunal on 24 August 2007. The Applicant was represented by Mr Browne and the Respondent was represented by Mr O’Farrell. At that time consideration was given to the issue of whether the Commissioner was correct to apply an exemption under the Act or whether the consideration of exemptions should be considered only at Inquiry stage.

8. Both Counsel were given an opportunity to consider whether submissions should be received on this preliminary issue for the reason that it might resolve the matter without the need to consider the more complex issue of whether the exception had application to the circumstances of this case. It was proposed that if the Tribunal determined that the Commissioner was correct to consider an exception under the Act the other substantive issue would then be considered. The larger substantiative issue of the application of the exception was thought to involve considerable hearing time.

9. A timetable was set by the Tribunal for Counsel to consider adopting this approach and the filing of written submissions. Both Mr Browne and Ms Archer (solicitor for the Respondent) wrote to the Tribunal indicating that they were content for the preliminary issue to be addressed first.

10. The application for review was listed before the Tribunal for hearing on 17 December 2007. Mr Browne and Mr O’Farrell relied on written submissions that had been filed with the Tribunal and supplemented these with oral submissions at the hearing.

11. Mr Browne’s written submissions outlined a number of propositions that were refined during the course of his oral submissions. In his written submissions Mr Browne stated that in considering whether a complaint is ‘lacking in substance’ the Commissioner should not take into account any material proffered by respondents during investigations and should not consider exemptions or exceptions under the Act. Mr Browne submitted that to do so would usurp the function of the Tribunal particularly, in cases involving the exercise of judgement or making findings of fact such as whether acts have occurred in ‘good faith’ or ‘in the public interest’. Such questions arising under s55 are matters solely for the Tribunal at an Inquiry and not for the Commissioner.

12. Mr Browne referred to the Commissioner’s reasons and in particular, the conclusion that "the brochure was done in good faith, for a purpose in the public interest" as demonstrating that she had usurped the function of the Tribunal.

13. During oral submissions Mr Browne conceded that in some clear cut cases it is appropriate for the Commissioner to consider the application of exemptions or exceptions under the Act in assessing whether a complaint is lacking in substance. Mr Browne submitted that in this case the application of the exception is in issue and questions of whether the Respondent acted in ‘good faith’ and ‘in the public interest’ are in dispute and these questions could only be resolved by the Tribunal after hearing evidence.

14. In Mr O’Farrell’s oral submissions he correctly pointed out that Mr Browne’s submissions had moved from the preliminary issue of whether an exception is a relevant consideration in exercising power to dismiss under s71 of the Act. Mr O’Farrell noted that once it was conceded that the Commissioner could consider exemptions or exceptions under the Act in determining whether a complaint should be dismissed the question arises as to whether the Commissioner was correct in her consideration of the exception in s55 of the Act.

15. Mr O’Farrell submitted that it was clear from the Commissioner’s reasons that she reached the conclusion that the Tribunal, acting reasonably, would be satisfied that the complaint would not be made out. Mr O’Farrell noted that during the investigation the Respondent had asserted that it had acted in good faith and there was no evidence to the contrary. Mr O’Farrell relied on Deen v Lamb as supporting the Commissioner’s conclusion establishing the application of s55 of the Act in cases such as the present case.

16. Mr Browne, in reply referred to written submissions he had filed before the Tribunal in relation to his application to review the Commissioner’s decision rejecting the complaint. These submissions were not before the Tribunal and consequently both Counsel were given an opportunity to file written submissions regarding the application of Deen v Lamb.

17. In further written submissions Mr Browne submitted that while Deen v Lamb is persuasive authority it was wrongly decided and is contrary to a later decision of the Full Federal Court in Toben v Jones (2003) FCAFC 137. In particular, Mr Browne submitted as follows:

"The Full Court construed the defence narrowly, requiring an analysis of the nature and purpose of the material published. If the purpose is provocative and inflammatory, it is not protected by the "public interest" defence (per Carr & Keiffel JJ at paras 43-46, 78).

At para 161 of Toben Alsop J held that:

"At a minimum under, relevantly, paras 18D(b) or (c)(ii), whatever else is required, there should be an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief."

18. Mr Browne went on to submit:

"Whilst it may be said that a statement by the Liberal Party opposing same-sex marriage may be for a genuine purpose in the public interest, it cannot be maintained that any such genuine purpose if served by labelling same-sex marriage "socially destructive". Not only is the statement factually baseless and capable of inciting hatred as argued above, it is also, in our submission, purposefully provocative and inflammatory and thus, according to Toben, does not enjoy the "public interest" defence."

19. Mr O’Farrell submitted that Deen v Lamb was correctly decided and the approach taken was consistent with other decisions of the Federal Court in propounding a test admitting both subjective and objective elements. Further Mr O’Farrell submitted that Toben v Jones was of little assistance to the Tribunal. He noted that the legislative provision in Toben v Jones was materially different to s55(c)(ii) of the Act requiring that the conduct be done "reasonably". Further, in the passages relied upon Carr and Kieffel JJ were not concerned with propounding a test of good faith or developing any points of general principle but were concerned with the facts of that case. The conclusion that the appellant had failed to prove good faith was an understandable approach given the very different facts in that case.

20. Mr O’Farrell concluded these final submissions by noting the factual basis before the Commissioner and the Tribunal demonstrates that:

"(a) The applicant’s rejection of the exception in s55(c)(ii) was made on the basis that the assertion that same sex marriages were socially destructive lacked a factual basis. It did not go to the issue of improper purpose;

(b) There was an unchallenged assertion by the respondent that it acted in good faith. Further, there was unchallenged material in the respondent’s submission to the Commissioner that set out its policy in relation to the issue:

(c) The brochure was a political publication, authorised for electoral purposes."

21. Mr O’Farrell concluded his submissions by stating:

"On the evidence, the purpose of the public act of disseminating the brochure and communicating the respondent’s policies to the general public must have been done in good faith. There is no evidence to suggest that it might not have been."

22. Having set out the history of this complaint and an outline of the submissions presented to the Tribunal, the Tribunal turns now to a consideration of the Commissioner’s reasons for dismissing the complaint. The Commissioner dismissed the complaint on the basis that it was "lacking in substance" having regard to s55(1)(c) of the Act. It can be seen from the Commissioner’s reasons that she concluded that the statements were in the public interest and that the Liberal Party acted in good faith:

"Having carefully considered all the information before me, I am of the view that it is in the public interest for the electorate in Tasmania to know what the views of the Liberal Party are in relation to same sex marriages, and this is an integral part of a democratic political process.

…

The use of the words "good faith" implies the absence of spite, ill will or other improper motive. The President in Dean v Lamb commented that "the ultimate inquiry involves questioning the true purpose of the impugned act…lack of good faith is usually to be inferred from other facts proved."

Having carefully considered all the information before me, I have formed the view that the Liberal Party acted on an honest belief that certain Greens’ policies represent socially destructive change including the Greens’ policy of supporting same sex marriage. Therefore, the circumstances of the complaint do not suggest that the Liberal Party acted other than in good faith.

In conclusion, I am satisfied that the brochure was done in good faith for a purpose in the public interest. Accordingly, the exception in s55(c)(ii) is likely to be made out."

23. A question that arises concerns the approach that should be followed by the Commissioner in determining whether or not the complaint is "lacking in substance". This phrase was considered by this Tribunal in Jones v Randall and Department of Health & Human Services TASADT 05 (2002) and the Tribunal considered that some guidance was provided by Assal v Department of Health, Housing and Community Services (EOC) 92-409 Sir Ronald Wilson at 78,900:

"A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance."

24. Mr Browne submitted that the approach adopted by the Court of Appeal of the Supreme Court of Victoria in State Electricity Commission of Victoria v Rabel and others (1998) 1 VR 102 should be preferred. In that case the approach adopted was to pose the question whether it had been demonstrated that the complaint was so hopeless that it should summarily be brought to an end (Per Phillips J.A. at p110). Mr Browne noted that the difference in approach was difficult to discern. It is noted any distinction between the cases will not affect the outcome of this case. The Tribunal has previously acknowledged that the preliminary nature of these reviews of rejection and dismissal warrant the taking of a cautious approach before bringing an end to the complaint: Dean v Department of State Development (2003) TASADT 10 para. 56. This approach is consistent with principles articulated by the Supreme Court of Victoria in Rabel at p110.

25. Mr Browne referred to a decision of Brooks and others v State of Victoria Anti-Discrimination Tribunal delivered 30 September 1997. The decision dealt with an application to strike out a complaint that had been referred to the Tribunal for Inquiry. While strike out proceedings are different to review proceedings under the Act, they are similar to review proceedings in some respects; they are preliminary in nature, no evidence has been called and the question is whether the complaint should be summarily disposed of without allowing the complainant the opportunity to present his case before the Tribunal in the ordinary way. In the case of Brooks the President of the Victorian Anti-Discrimination Tribunal outlined a number of propositions applying to strike out applications. Some of these propositions do not have application to the proceedings before the Tribunal in review applications under the Act. For example, proposition numbered five is that "The Respondent bears the onus of showing that the Complainant’s case ought not be allowed to proceed". This proposition stems from the distinctive nature of strike out applications and would not seem to have general application to reviews of decisions by the Commissioner that complaints should be dismissed. Noting this distinction it is useful to bear in mind the principles outlined by the learned President particularly in the context of exceptions under the Act. One of the comments made by the learned President was as follows:

"Third, if the basis of the Respondent’s application to strike out the complaint is that the Respondent argues that one of the exceptions in the Act applies, the Respondent must first raise the application of the relevant exception. It is not necessary that the complaint must negative every possible exception, even though the exception has not been raised. It may well be that the burden of proving the application of the exception also rests on the Respondent (Coyler v State of Victoria, Supreme Court of Vic, Court of Appeal, 12 September 1997; per Kenny JA at p23, with whom Brooking and Callaway JJA agreed). The test is whether the Respondent has satisfied the Tribunal that the exception so completely answers the claim that the claim is obviously hopeless or is untenable (Bacon & Ors v State of Victoria, ADT of Vic, 19 August 1997)."

26. This comment is helpful and the principle has application and may be modified to apply to the nature of review proceedings under the Tasmanian Act. Accordingly, the test in the Tasmanian context is whether the Tribunal considers that the exception so completely answers the claim that the claim is obviously hopeless or is untenable noting that at Inquiry the respondent will have the onus of satisfying the Tribunal that the exception applies.

27. It is to be noted that the Tribunal proceeds on the basis that respondents bear the onus of proof with respect to exceptions in s55 of the Act: see Toben v Jones (2003) FCAFC 137 per Carr J at para 41.

28. The reasons given by the Commissioner suggest that, at least on some occasions during her reasons, she did not adopt the test set out above of whether the complaint is obviously hopeless or is untenable noting that at Inquiry the respondent will bear the onus in relation to the application of the exception. The reasons she gave suggest she has drawn conclusions, formed views and made findings about the issues of "good faith" and "public interest". Furthermore, the reference to the likelihood that the exception would be made out suggests that it is for the Commissioner to be satisfied of the application of the exception and not the Tribunal. If it is "likely" that the exception would be established by the Respondent then the complaint may still have merit. However, I also note in various respects the Commissioner has adopted the correct approach. She seems to have considered the circumstances of the complaint to ascertain whether they suggest that the Liberal Party acted in other than good faith. That is a legitimate enquiry. I turn now to consider whether the Commissioner’s conclusion that the complaint was ‘lacking in substance’ was correct applying the test outlined above.

29. It is apparent that there will be cases where the application of an exception under the Act is so clear that the complaint is hopeless. The question that arises is whether this case falls into that category.

30. For the purpose of considering the exception in s55(1)(c) it is not necessary to dwell on the decision of Toben v Jones. If there is a difference in the principles articulated in Deen v Lamb and Toben v Jones, and I am not convinced that there is a difference, that subtle point may be considered at some other time. For the purpose of this review I will consider the Deen v Lamb approach which is arguably more favourable to the Respondent.

31. The approach of Deen v Lamb demands a focus on the Respondent’s true purpose of the impugned act. In any particular case, respondents may make assertions about true purpose and the Tribunal ought to scrutinise these assertions. In Deen v Lamb the President of the Anti-Discrimination Tribunal of Queensland made a number of statements that emphasise the nature of the scrutiny to be undertaken by the Tribunal with respect to good faith and the specified purpose:

"It is rare that a defendant will admit an improper purpose. Consequently, lack of good faith is usually to be inferred from other facts proved. For this reason it is common, in defamation actions, to scrutinise a defendant’s conduct for evidence from which an improper purpose might be inferred. In addition, the terms of the publication, where they are in excess of that required for the occasion, might be evidence from which lack of good faith is to be inferred.

….

In addition to the requirement of good faith, s124A(2)(c) also contains an express requirement that the act be done for the specified purpose. What does this add to the requirement of good faith if the latter term itself imports a requirement of purpose? One aspect of the term "good faith" is honesty: see e.g. Central Estates (Belgravia) Ltd v Woolgar (1971) 3 All ER 647 at 649 per Lord Denning MR. By requiring that the act be done in good faith for the specified purpose, in my view the Act requires that the specified purpose be the actor’s actual purpose rather than merely his or her colourable purpose. It will not avail a respondent that the act might have been done for an existing legitimate purpose if in truth it was done by the particular respondent for some other illegitimate purpose.

I leave open the question whether a person can be said to be acting in good faith when the person has a number of motives, some proper and some improper. That is a difficult question that will need to be considered when the appropriate case arises. The question does not arise in this case."

32. A number of observations are made about the case of Deen v Lamb. Firstly, to make the obvious point the conclusions of the President about the purpose of the publisher of the pamphlet in that case cannot assist the Tribunal determine the purpose of the Respondent in this case. Each case must turn on its own facts and the Tribunal’s assessment of those facts.

33. There is nothing in Deen v Lamb to suggest that because an assertion of proper purpose or "good faith" is not contradicted by direct evidence of lack of proper purpose and good faith does not mean the assertion must be accepted by the Tribunal. Respondents bear the onus of proof and in a particular case assertions of good faith or public purpose could, depending on the evidence, be considered to be weak support for a respondent’s case and not sufficient to discharge the onus of proof.

34. Thirdly, the fact that the circumstances of the case indicate an ostensible purpose does not mean that the Tribunal will attribute that purpose to a respondent. The question is not limited to whether or not the evidence points to a legitimate purpose but the more specific question of a respondent’s actual purpose.

35. Fourthly, the case of Deen v Lamb leaves open that a breach of the Act may occur if a respondent’s motives are mixed – some proper and some improper.

36. Finally, noting the factual conclusions of legitimate purpose and good faith that were drawn by the Tribunal in Deen v Lamb it should be borne in mind that the Tribunal had heard evidence and was confronted with an application akin to an application for final relief and was not considering the matter "on the papers".

37. Finally, noting all of the above, the critical observation is made that it seems impossible for this Tribunal to draw a conclusion that this complaint is hopeless because of the application of an exception without making findings of fact that cannot and should not be made in this case at this stage. In this case and in many other cases findings about ‘true purpose’ should be made at Inquiry stage when a complainant has had the opportunity to present his or her case in the ordinary way and the Respondent has had the opportunity to establish his true purpose. There is material that gives rise to a question about the Respondent’s true reason for publishing the document. The Commissioner has correctly concluded that the language used in the pamphlet could incite hatred. It is not moderate language and it could be argued that it is in excess of that required for the occasion and so the evidence of the contents of the pamphlet could give rise to an inference of lack of good faith and improper purpose: Deen v Lamb at page 7. Whether or not the Tribunal draws that inference, regards any such inference as countered by evidence from the Respondent and accepts the Respondent’s evidence of purpose are all matters for the Tribunal at Inquiry.

38. In essence, the Tribunal concludes that the application of the exception in this case and specifically the questions of whether the Respondent acted in good faith and whether the ostensible legitimate purpose was the Respondent’s genuine and only purpose is properly a question for the Tribunal at Inquiry. Consideration of the question involves an assessment of evidence and weighing and evaluating assertions made that have been tested by cross-examination and assessing that evidence in light of the circumstances that existed at the time. It is concluded that this is not a case where the application of the exception is so clear that the complaint is hopeless.

39. For the reasons stated above the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint. By virtue of s72(3) of the Act the Tribunal is to deal with the complaint as if it were referred to the Tribunal for Inquiry.