Equal Opportunity Tribunal of New South Wales CITATION: Davis -V- Nunn [1998] NSWEOT COMPLAINANT: Jason Davis RESPONDENT: Jody Nunn NUMBER: 107 of 1997 TRIBUNAL: Judge H G Murrell S.C. ( Senior Judicial Member ) GROUNDS OF COMPLAINT: DATES OF HEARING: 01/30/1998 DATE OF JUDGMENT: 03/06/1998 Complainant: Mr P Griffin (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr D Hillard (Solicitor) President - Ms M Smyth (Solicitor) JUDGMENT IN FAVOUR OF: Respondent 1. BACKGROUND 1.1 Pursuant to section 88(2) of the Anti-Discrimination Act 1977, on 22 August 1995 the complainant's mother lodged a complaint of racial vilification on behalf of the complainant. 1.2 It is alleged that on 18 August 1995 in a public place at Orange the complainant was subjected to racist taunts and was the object of a racially motivated assault by the respondent and others. As a consequence of the assault, the complainant sustained potentially serious spinal injuries. 1.3 On 15 September 1995 the President of the Anti-Discrimination Board wrote to the Attorney General stating: Pursuant to Section 89B(2) of the Anti-Discrimination Act 1977, I consider that an offence may have been committed under Section 20D of the NSW Anti-Discrimination Act 1977. Consequently, I am referring this complaint to you. . . . the Board is still in the process of establishing the final details regarding those person involved in the alleged assault … In order to preserve Mr Davis' rights under section 20D and to comply with my statutory obligation to make a referral to you, I am advising you of this matter within the required time but requesting that no further action is taken nor determination is made by you until I am able to advise you of the full details of this matter and the complete wishes of the complainant …I believe that your agreeing to my request will in no way prejudice the interests of the any of the parties concerned and will allow the Board adequate time to complete its investigations and provide you with further advice. 1.4 On 19 January 1996 the complainant lodged a letter providing further details of the complaint. 1.5 On 23 May 1996 the complainant wrote to the Anti-Discrimination Board stating that he wished to continue with a serious racial vilification complaint and giving permission for the complaint to be referred to the Equal Opportunity Tribunal. 1.6 On 17 December 1996 the President wrote to the complainant, stating: As you know, these complaints were referred to the Attorney General and the Director of Public Prosecutions because of their serious nature. The Anti-Discrimination Act 1977, section 89B(4), requires me to formally advise you that I will refer your complaints to the Equal Opportunity Tribunal for hearing if you wish to proceed with them. . . . If you still want to continue with your complaint of serious racial vilification you can ask me to send it to the Equal Opportunity Tribunal for a public hearing. . . . If you want me to send your complaint to the Tribunal, normally I would ask you to write to me and tell me to do this within 21 days. However, as you have already written to the Board requesting referral on 23 May 1996, I will presume you still wish the complaints to be referred unless I hear from you within 21 days. 1.7 On 5 February 1997 the complainant wrote to the Anti-Discrimination Board referring to a complaint arising out of the same circumstances as the subject complaint and stating in relation to the related complaint: Will you pass on the complaint also to the Equal Opportunities Tribunal so further hearing may be conducted. 1.8 In mid 1997 the President purported to refer the complaint to the Tribunal. In a letter dated 26 August 1997 from the President to the Registrar of the Tribunal, the President stated that the complainant had alleged racial vilification and went on to state: Following the Board's investigation of these matters, on 12 August 1997 I decided to refer the complaints under section 89B(4) of the Anti-Discrimination Act because I believe that in the circumstances these complaints cannot be conciliated. I now refer these matters to the Equal Opportunity Tribunal under that section of the Act. 2. LEGISLATION 2.1 In September 1995 section 89B provided: 89B (1) The President: (a) after investigating a vilification complaint; and (b) before endeavouring to resolve the complaint by conciliation, shall consider whether an offence may have been committed under section 20D or 49ZXC in respect of the matter the subject of the complaint. (2) If the President considers that an offence may have been committed under section 20D or 49ZXC, the President shall refer the complaint to the Attorney General. (3) The President may only make such a referral within 28 days after receipt of the complaint. (4) On making the referral, the President shall, by notification in writing addressed to the complainant, advise the complainant of: (a) the making of the referral; and (b) the rights of the complaint under section 91(1). (5) Despite section 96, the Tribunal may stay an inquiry into the complaint until the conclusion of proceedings for the alleged offence under section 20D or 49ZXC. 2.2 Sections 20D and 49ZXC create the offences of serious racial vilification and serious HIV/AIDS vilification respectively. Before prosecuting either offence, it is necessary to obtain the Attorney General's consent to the prosecution. 2.3 Section 91 of the Act provided: 91 (1) Where the President has been given a complaint notification under section 89B(4), 89C(4) or 90(1), the complainant may, within 21 days after the date of that notification, by notice in writing served on the President, require the President to refer the complaint to the Tribunal. . . . (2) On receipt of a notice under subsection (1), the President shall refer the complaint to the Tribunal together with a report relating to any inquires made by the President into the complaint. 2.4 Section 92 provided: 92 (1) Where the President is of the opinion that a complaint, other than a complaint that the President has declined to entertain under section 90(1), may be resolved by conciliation, the President shall endeavour to resolve the complaint by conciliation. (2) The President may, by notice in writing, require the complainant and the respondent, or either of them, to appear before the President, either separately or together, for the purpose of endeavouring to resolve the complaint by conciliation. . . . 2.5 Section 94(1) provided: 94 (1) Where the President: (a) is of the opinion that a complaint cannot be resolved by conciliation; (b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours; or (c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint. 2.6 Section 95 provided: 95 The Minister may refer any matter to the Tribunal for inquiry as a complaint under this Part. 2.7 Section 96 provided: 96 The Tribunal shall hold an inquiry into each complaint or matter referred to it under section 91(2), 94(1) or 95. 3. RESPONDENT'S CONTENTIONS 3.1 The respondent contends that for the following reasons the Equal Opportunity Tribunal has no jurisdiction to inquire into the complaint. (1) The President failed to issue a valid section 89B(4) notice because the notice issued by the President was not issued "on making (the referral of the complaint) to the Attorney General". The referral was made on 15 September, 1995 but no notice issued until 17 December, 1996. (2) The complainant failed to exercise any right to have the complaint referred to the Equal Opportunity Tribunal under section 91(1) because he failed to give the President written notice within 21 days of receipt of a section 89B(4) notice. A notice was issued on 17 December, 1996, but the complainant did not request referral until 5 February, 1997. 3.2 It is the respondent's contention that the only route by which the Tribunal could have acquired section 96 jurisdiction to inquire into the complaint was via sections 89B(4) and 91(1). As there has been compliance with neither section 89B(4) nor section 91(1), the Tribunal has not acquired jurisdiction to deal with the complaint. 4. COMPLAINANT'S CONTENTIONS 4.1 The complainant advances the following contentions. (1) The President's letter to the Attorney General of 15 September 1995 was a "conditional referral" of the complaint, designed solely to satisfy a statutory requirement. It was not a complete or final referral to the Attorney General. Consequently, the complaint remained with the President and the section 89B(4) requirement for notification did not arise. (2) In any event, section 89B(4) notification is a "technicality that should be waived". (3) It is not mandatory that a complainant require referral to the Tribunal within 21 days after receiving a section 89B(4) notification. Section 91(1) should not be construed as imposing a mandatory requirement because section 91(1) uses the term "may" and the Act is beneficial legislation. 5. PRESIDENT'S CONTENTIONS 5.1 The President was granted leave to appear before the Tribunal. 5.2 It was the President's contention that, following the referral to the Attorney General of a complaint of serious racial vilification, the President may continue to deal with the original complaint as one of racial vilification (as opposed to serious racial vilification). 5.3 The President submitted that, in this case, after the section 89B(4) referral to the Attorney General, the President retained and continued to investigate the complaint of racial vilification. Ultimately, the President considered that the complaint could not be resolved by conciliation. Pursuant to section 94 of the Act he referred the complaint of racial vilification to the Tribunal. The Tribunal has jurisdiction to deal with the complaint as one properly referred to it under section 94. 6. THE TRIBUNAL'S JURISDICTION 6.1 Section 96 is the only means by which the Tribunal may acquire jurisdiction to inquire into a complaint. Consequently, the Tribunal cannot hold an inquiry into a complaint or matter unless that complaint or matter has been referred under section 91(2), section 94(1) or section 95, the three provisions to which section 96(1) refers: Herring v Benevolent Society of NSW and Anor (1991) EOC 92-328 at 78,254 . 6.2 The purpose of sections 89B and 91(1) is clear. Once it appears that an offence may have been committed, it is inappropriate that the President endeavour to resolve a complaint by conciliation. Consequently, section 89B(1)(b) requires that the complaint be referred to the Attorney General before the President endeavours to resolve it. The purpose of sections 89B(4) and 91(1) is to enable a complainant to pursue his or her right to redress, but to confine that right to a right to redress through a judicial process in circumstances where a conciliation process has become inappropriate. 6.3 It would be inappropriate that a complaint that may be prosecuted as an offence should simultaneously be the subject of an investigation by the Attorney General and/or prosecuting authorities, and be the subject of a conciliation process conducted by the President, in the course of which the President may require the respondent to appear for the purpose of endeavouring to resolve the complaint by conciliation: see section 92(2). Once a matter has been identified as potentially suitable for prosecution, there must be particular regard for the rights of the respondent, who is a potential defendant. One could not expect a potential defendant to participate in a conciliation process in which there was discussion of the subject matter of a potential criminal prosecution. 6.4 Consistent with its purpose, section 89B makes no provision for a "conditional referral" to the Attorney General. In any event, the terms of the referral made on 15 September 1995 were not conditional. 6.5 Pursuant to section 89B(4), the President is required to notify a complainant of his or her section 91(1) rights "on making (the referral to the Attorney General)". Having regard to its purpose, this expression must mean that the President is required to notify the complainant of his or her section 91(1) rights at a time which is, in a practical sense, the time at which the President refers the complaint to the Attorney General. A notification given within several days of a referral to the Attorney General may , in a practical sense, be a notification given "on making" the referral. The notification given on 17 December 1996, more than 12 months after the referral to the Attorney General, was not a notification given "on making" the referral to the Attorney General. 6.6 The failure to comply with section 89B(4) is not a "technicality" which may be ignored. Section 89B(4) must be seen in the context of sections 91(1) and 96. It is an indispensable procedural step to the Tribunal acquiring jurisdiction to deal with a matter which may simultaneously be the subject of a criminal prosecution. 6.7 The 21 day period prescribed by section 91(1) is not flexible. The sub-section enables a complainant to require referral of a complaint to the Tribunal within 21 days. It does not give a complainant any entitlement beyond 21 days after the date of the President's section 89B(4) notification. The terms of section 91(1) are similar to the terms of section 118(1), which imposes a 21 day period in which an aggrieved party may appeal against a decision or order of the Tribunal. In relation to section 118, the Supreme Court has held that the 21 days period cannot be extended: Geoffrey Button Sales Pty Ltd v Robson and Anor (Unreported, Hunt J, 12 December 1985), Fonua v BHP Pty Ltd (1995) EOC 92-750 . A comparison of neither the terms nor the substance of sections 91 and 118 provides any basis for concluding that the 21 day period in section 91(1) is other than mandatory. 6.8 There is no doubt that the Act is beneficial legislation. However, the terms and purpose of sections 89B(4) and 91(1) are unambiguous. Sections 89B(4) and 91(1) are designed to protect both a complainant's right to civil redress and a respondent's rights in relation to a potential criminal prosecution. 6.9 The Tribunal has no jurisdiction to inquire into the complaint. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.