Judicial review decisions

Under the Judicial Review Act 1991, a person who is aggrieved by an administrative decision made by the Commissioner under the Anti-Discrimination Act 1991 or the Human Rights Act 2019 may apply to the Supreme Court for a statutory order of review of the decision.

The proper course for the Commission to take in a judicial review of its decision, is to not take an active part in the proceeding, other than providing submissions on the Commission’s powers and procedures and relevant legislation that might assist the court. Taking a more active role could damage the Commission’s impartiality (or perception of impartiality) in subsequent dealings with the applicant. This approach is in accordance with the principle in R v Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13 at 35-36; [1980] HCA 13 (the Hardiman principle).

The information provided here relates to published decisions of the Supreme Court of Queensland on applications for judicial review of decisions of the Commissioner, and gives brief details of the decision and outcome of the application. It is arranged with reference to the provision under which the Commissioner’s decision was made.

Anti-Discrimination Act 1991

Section 136
Section 138
Section 139

To date, there have been no published decisions on applications for judicial review of decisions made by the Commissioner under the Human Rights Act 2019.

Note: Not all decisions on judicial review applications are published by the Court.

Published decisions in applications for judicial review are available from:

Anti-Discrimination Act 1991

Section 136 - Making a complaint

(The requirements for a complaint include that it must be in writing and set out reasonably sufficient details to indicate an alleged contravention of the Act.)

State of Queensland v Walters & Anor [2007] QSC 12 (1 February 2007)

Decision under review	Decision to accept separate allegations in a complaint where different allegations had been accepted earlier. Separate allegations in the complaint met the threshold test at different times.
Outcome	Not accepting a complaint is not a rejection of the complaint – the Commissioner failing to make a decision within 28 days does not preclude further dealing with a complaint – s 135 allows a complaint with more than one allegation – possible for the Commissioner to accept separate alleged contraventions at different times – practical to permit the Commissioner to treat such complaints as several complaints.

Decision under review

Decision to accept separate allegations in a complaint where different allegations had been accepted earlier. Separate allegations in the complaint met the threshold test at different times.

Outcome

Not accepting a complaint is not a rejection of the complaint – the Commissioner failing to make a decision within 28 days does not preclude further dealing with a complaint – s 135 allows a complaint with more than one allegation – possible for the Commissioner to accept separate alleged contraventions at different times – practical to permit the Commissioner to treat such complaints as several complaints.

Section 138 – Time limit on making complaints

(The Commissioner must accept a complaint made more than one year after the alleged contravention, if the Commissioner is satisfied that the complainant has shown good cause. Before May 2020 when section 138 was amended, the Commissioner had a discretion to accept a complaint if satisfied the complainant had shown good cause.)

Re: Borden v Walters [1999] QSC 226 (17 September 1999)

Decision under review	Decision to not accept complaint - some allegations occurred before commencement of the Act – others up to five years before the complaint was lodged.
Outcome	It was not wrong for the decision-maker to form a prima facie opinion – not necessary for Commissioner to receive oral submissions.

Buderim Ginger v Booth [2001] QSC 349 (27 September 2001)
*This decision was successfully appealed – see appeal decision [2002] QCA 177 following.

Decision under review	Decision to accept complaint – complaint lodged two years after alleged act of discrimination.
Outcome	Decision to accept complaint set aside – no ‘good cause’ shown. *Appeal

Buderim Ginger Ltd v Booth [2002] QCA 177 (24 May 2002)

Decision under review	Appeal against [2001] QSC 349 (preceding)
Outcome	Leading authority on factors relevant to exercise of discretion – primary judge erred in approach of revisiting the merits of the decision – relevant consideration of all circumstances include: length of delay, who delay is attributable to, circumstances of the complainant, whether satisfactory explanation for the delay, whether delay will cause prejudice to the respondent. The decision of the primary judge was set aside, and the Commissioner’s decision affirmed.

Decision under review

Appeal against [2001] QSC 349 (preceding)

Outcome

Leading authority on factors relevant to exercise of discretion – primary judge erred in approach of revisiting the merits of the decision – relevant consideration of all circumstances include: length of delay, who delay is attributable to, circumstances of the complainant, whether satisfactory explanation for the delay, whether delay will cause prejudice to the respondent.
The decision of the primary judge was set aside, and the Commissioner’s decision affirmed.

Brown v McArthur & Walters [2002] QSC 236 (20 August 2002)

Decision under review	Decision not to accept a number of complaints – complaint lodged up to four years after alleged contravention – explanation accepted – prejudice to respondent.
Outcome	It was open for the Commissioner to consider the lapse of time too great, regardless of whether the respondent may have contributed to some of the delay – not irrelevant to refer to proceedings for damages on foot – not an error to focus on individual complaints rather than each complainant alleging she was one of a group of victims.

GCE v Anti-Discrimination Commissioner [2006] QSC 58 (24 March 2006)

Decision under review	Decision to not accept complaint – complaint lodged from four years up to eight years after alleged contravention.
Outcome	Reason for decision sufficient – despite reference to ‘balance’, in context the decision-maker did not apply an incorrect test – strength of case is not decisive in mix of factors – easier to see demonstrated weakness as a factor militating against an extension of time – not wrong to refer to pursuit of alternative remedies as factor. Preservation of privacy – clear legislative bias towards enabling the early stages of proceedings in the Commission to be kept private – Order: identity of applicant not to be published – Order: whole of file to be sealed and not opened without order of a judge.

Decision under review

Decision to not accept complaint – complaint lodged from four years up to eight years after alleged contravention.

Outcome

Reason for decision sufficient – despite reference to ‘balance’, in context the decision-maker did not apply an incorrect test – strength of case is not decisive in mix of factors – easier to see demonstrated weakness as a factor militating against an extension of time – not wrong to refer to pursuit of alternative remedies as factor.
Preservation of privacy – clear legislative bias towards enabling the early stages of proceedings in the Commission to be kept private – Order: identity of applicant not to be published – Order: whole of file to be sealed and not opened without order of a judge.

State of Queensland & Ors v Ball & Anor [2011] QSC 50 (28 February 2011)

Decision under review	Decision to accept complaint – some allegations in-time, others up to two years and seven months before complaint lodged
Outcome	The task of the decision-maker is not to decide if there is a continuous state of good cause – task is to examine all of the relevant circumstances – satisfactory explanation for delay is not a condition precedent to the exercise of the discretion – pursuit of other relief is a relevant consideration but does not necessarily disentitle the complainant from pursuing the complaint and showing good cause – fact that decision-maker considered considerable material was evident on face of decision – look to decision as a whole, not just summary of conclusions. The application was dismissed.

Decision under review

Decision to accept complaint – some allegations in-time, others up to two years and seven months before complaint lodged

Outcome

The task of the decision-maker is not to decide if there is a continuous state of good cause – task is to examine all of the relevant circumstances – satisfactory explanation for delay is not a condition precedent to the exercise of the discretion – pursuit of other relief is a relevant consideration but does not necessarily disentitle the complainant from pursuing the complaint and showing good cause – fact that decision-maker considered considerable material was evident on face of decision – look to decision as a whole, not just summary of conclusions.
The application was dismissed.

Hart v Anti-Discrimination Commission Queensland [2011] QSC 319 (2 November 2011)
*This decision was unsuccessfully appealed – see appeal decision [2012] QCA 295 following.

Decision under review	Decision to not accept two complaints – one complaint alleged contraventions that occurred from one and half years to over two years before complaint lodged – other complaint alleged contraventions from two and half years to over four years before complaint lodged.
Outcome	For jurisdictional error, focus needs to be on the power conferred – the criterion for the exercise of the power under s 138(2) is the Commissioner’s opinion as to whether the applicant has shown good cause – matters to which the decision-maker might have regard described in Buderim Ginger v Booth – no jurisdictional error – where discretion is unconfined, factors that may be taken into account are unconfined unless limitation is found in the subject matter, scope, and purpose of the Act – decision-maker not bound to take into account a particular matter unless an implication is found in the subject matter, scope, and purpose of the Act – reasons of decision-maker are to be read on the basis that they are meant to inform and not be scrutinised upon over-zealous judicial review to discern whether some inadequacy may be gleaned by the way the reasons are expressed – no failure to take into account a relevant consideration – not for Court to review weight given to facts and circumstances in deciding a relevant factor – application dismissed. Costs – applicant of very limited financial means – no aspect of public interest associated with the application – costs to follow event. *Appeal

Decision under review

Decision to not accept two complaints – one complaint alleged contraventions that occurred from one and half years to over two years before complaint lodged – other complaint alleged contraventions from two and half years to over four years before complaint lodged.

Outcome

For jurisdictional error, focus needs to be on the power conferred – the criterion for the exercise of the power under s 138(2) is the Commissioner’s opinion as to whether the applicant has shown good cause – matters to which the decision-maker might have regard described in Buderim Ginger v Booth – no jurisdictional error – where discretion is unconfined, factors that may be taken into account are unconfined unless limitation is found in the subject matter, scope, and purpose of the Act – decision-maker not bound to take into account a particular matter unless an implication is found in the subject matter, scope, and purpose of the Act – reasons of decision-maker are to be read on the basis that they are meant to inform and not be scrutinised upon over-zealous judicial review to discern whether some inadequacy may be gleaned by the way the reasons are expressed – no failure to take into account a relevant consideration – not for Court to review weight given to facts and circumstances in deciding a relevant factor – application dismissed.

Costs – applicant of very limited financial means – no aspect of public interest associated with the application – costs to follow event.

*Appeal

Hart v Anti-Discrimination Commission Queensland [2012] QCA 295 (30 October 2012)

Decision under review	Appeal against [2011] QSC 319 (preceding)
Outcome	No error by primary judge – no error of law by decision-maker – no failure to take into account relevant considerations.

Section 139 – Commissioner must reject frivolous, trivial etc. complaints

(The Commissioner must reject a complaint if the Commissioner is of the reasonable opinion that the complaint is frivolous, trivial or vexatious; or misconceived or lacking in substance.)

Toodayan v Anti-Discrimination Commission & Anor [2017] QSC 301 (11 December 2017)
*Part of this decision was successfully appealed – see appeal decision [2018] QCA 349 following.

Decision under review	Decisions under s139 to reject three separate complaints as misconceived or lacking in substance
Outcome	Test is whether or not a reasonable opinion can be formed – Commissioner must proceed on assumption that the facts alleged can be substantiated. Two decisions set aside for failure to take into account relevant considerations – failure to consider fully the context in which alleged discriminatory words used – s139 does not provide for rejection of weak cases, only those which are hopeless. One decision not set aside – conclusion of decision-maker was not affected by any error – no evidence of direct or indirect discrimination – no evidence to link actions with any form of discrimination – ample evidence to conclude that actions were generated by behaviour of the applicants rather than their race or religion. *Appeal

Decision under review

Decisions under s139 to reject three separate complaints as misconceived or lacking in substance

Outcome

Test is whether or not a reasonable opinion can be formed – Commissioner must proceed on assumption that the facts alleged can be substantiated.
Two decisions set aside for failure to take into account relevant considerations – failure to consider fully the context in which alleged discriminatory words used – s139 does not provide for rejection of weak cases, only those which are hopeless.
One decision not set aside – conclusion of decision-maker was not affected by any error – no evidence of direct or indirect discrimination – no evidence to link actions with any form of discrimination – ample evidence to conclude that actions were generated by behaviour of the applicants rather than their race or religion.

*Appeal

Toodayan v Anti-Discrimination Commission [2018] QCA 349 (14 December 2019)

Decision under review	Appeal against part of [2017] QSC 301 (preceding)
Outcome	Decision of primary judge not to set aside one decision -primary judge erred by failing to find that the delegate applied the wrong test when rejecting the complaint under s139 and finding that the evidence before the Commission did not establish a contravention of the Act – obligation on complainant does not extend beyond providing reasonably sufficient details to indicate a contravention – s139 operates differently to s168 – complaint will be ‘misconceived’ if it is based on a false conception or notion such as an attribute not provided for in the Act, and ‘lacking in substance’ where the detail fails to point to conduct that is capable, if proved, of amounting to a contravention – must clearly appear that complaint is misconceived or lacking in substance before requisite opinion may reasonably be formed – where more than one inference is reasonably open, it is not for the Commissioner to decide which inference is more probable – not part of Commissioner’s functions to decide the complaint.

Decision under review

Appeal against part of [2017] QSC 301 (preceding)

Outcome

Decision of primary judge not to set aside one decision -primary judge erred by failing to find that the delegate applied the wrong test when rejecting the complaint under s139 and finding that the evidence before the Commission did not establish a contravention of the Act – obligation on complainant does not extend beyond providing reasonably sufficient details to indicate a contravention – s139 operates differently to s168 – complaint will be ‘misconceived’ if it is based on a false conception or notion such as an attribute not provided for in the Act, and ‘lacking in substance’ where the detail fails to point to conduct that is capable, if proved, of amounting to a contravention – must clearly appear that complaint is misconceived or lacking in substance before requisite opinion may reasonably be formed – where more than one inference is reasonably open, it is not for the Commissioner to decide which inference is more probable – not part of Commissioner’s functions to decide the complaint.