QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Jin v State of Queensland (Department of Communities, Housing and Digital Economy) & Or [2023] QIRC 013

Jin, Yin Cheng
(Complainant)

v

State of Queensland (Department of Communities, Housing and Digital Economy)
(First Respondent)

&

Elliot, Simon
(Second Respondent)
	
CASE NO:
	AD/2022/85
	
PROCEEDING:
	Referral of a complaint lapsed
	
DELIVERED ON:
	19 January 2023	
MEMBER:

HEARD AT:

ORDER:	Pidgeon IC

On the papers

The application is dismissed.
	
CATCHWORDS:

	ANTI-DISCRIMINATION –  REFERRAL OF COMPLAINT –  complaint made with the Queensland Human Rights Commission alleging the Complainant had been subject of unlawful discrimination in contravention of the Anti-Discrimination Act 1991 and that the Complainant's human rights had been breached – where the complaint had not lapsed – whether the Queensland Industrial Relations Commission has jurisdiction to hear the proceeding under s 169(3) of the Anti-Discrimination Act 1991–  application dismissed

	
LEGISLATION:
	Anti-Discrimination Act 1991 ss 136, 139, 142, 169

Human Rights Act 2019 ss 67	

Reasons for Decision

	Background

[1]	On 24 November 2022, the Complainant filed a Form 86 - Application for review of Commissioner's decision with the Industrial Registry.

[2]	The application is made to the Queensland Industrial Relations Commission pursuant to s 169(3) of the Anti-Discrimination Act 1991 (the AD Act).

[3]	The Complainant's application concerns a decision of the Queensland Human Rights Commission (QHRC) dated 8 February 2022 (the decision). In consideration of s 136 of the AD Act and s 67 of the Human Rights Act 2019, the delegate advised the Complainant that 'Your complaint does not appear to come under either Act because the information provided does not indicate a contravention of the Acts'. 

Legislative Framework

[4]	Section 169 of the AD Act relevantly states:

169 	Complaint may lapse if complainant loses interest

(1)	If the commissioner is of the reasonable opinion that a complainant has lost interest in continuing with a complaint, the commissioner must tell the complainant in writing that—

(a)	the complaint will lapse unless the complainant indicates that the complainant wishes to continue with it; and

(b) 	if the complaint lapses, the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint.

(2)	If the complainant does not give the indication within 28 days, the complaint lapses, and the commissioner must write to the complainant and the respondent as soon as practicable to tell them that the complaint has lapsed.

(3)	Within 28 days of being notified that the complaint has lapsed, the complainant may apply to the tribunal to review the commissioner’s decision.

(4)	If the tribunal is satisfied that the complainant has a genuine interest in continuing with the complaint, the commissioner must resume dealing with the complaint.

(5)	The complainant can not make a further complaint relating to the act or omission that was the subject of the complaint.

Consideration

[5]	Upon review of the filed Form 86, it appeared to me that the Complainant was seeking to progress a complaint made to the QHRC regarding an allegation that there had been discrimination on the basis of race resulting from a job advertisement process conducted by the Queensland Art Gallery. 

[6]	The Form 86 was not accompanied by a copy of a decision the Complainant had received  and did not contain any information about the Complainant being advised that the complaint had lapsed.

[7]	On Tuesday 29 November 2022, I asked the Industrial Registry to write to the Complainant and request a copy of the Human Rights Commissioner's decision subject of the appeal. 

[8]	The Complainant provided the decision of the Human Rights Commission dated 8 February 2022.  Relevantly, that letter said:

Our Decision

We have considered whether your complaint amounts to a breach of any of the Acts listed above.  The AD Act and the HR Act appear relevant to your complaint. 

Under section 136 of the AD Act, a complaint must set out reasonably sufficient details to indicate an alleged breach of the AD Act. Under section 67 of the HR Act, a complaint must set out enough details to indicate an alleged breach of the HR Act. 

Your complaint does not appear to come under either Act because the information provided does not indicate a contravention of the Acts….

[9]	The letter goes on to provide detailed consideration of elements of the complaint and to explain why the Human Rights Commission had determined that there was insufficient detail to support a contention that the Complainant had been discriminated against as alleged or that the Complainant's human rights were unlawfully curtailed or interfered with.

[10]	In order to establish whether the QIRC has jurisdiction to hear the matter under s 169(3) of the AD Act, I issued the following Directions Order:

HAVING received a copy of the Queensland Human Rights Commission's decision of 8 February 2022, Commissioner Pidgeon notes that the decision subject of the Complainant's application is not one to dismiss the complaint for having lapsed pursuant to section 169(3) of the Anti-Discrimination Act 1991 (Qld).  IT IS ORDERED:-

1.	That the Complainant file in the Industrial Registry and serve on the Respondent, written submissions… plus any relevant attachments, in support of the application by 4.00pm on 20 December 2022.

2.	That the Complainant's submissions must address: 

(a)	How section 169(3) of the Anti-Discrimination Act 1991 (Qld) applies to the complaint; and
(b)	What jurisdiction the Queensland Industrial Relations Commission has to consider the decision of the Queensland Human Rights Commission dated 8 February 2022.

[11]	On 4 January 2023, the Complainant filed a document titled 'The "Submission"'.  These submissions do not address in any way how section 169(3) of the AD Act applies to the complaint.  The only reference to the jurisdiction of the QIRC to hear the matter appears on page 5 of 6:

1.	QCAT could not deal my appeal without QHRC's referral, It was particularly a disturbing as the 
QCAT lawyer (John) just said "I will tell them the problem…" and "You can't appeal".

2.	Ombudsman advised that according to the regulation. I could raise the issue to QRIC…Now, the 
	directions hearing will be held on 20th Dec in QIRC, and as required I make this "submission".

[12]	Section 169(3) provides that a Complainant may apply for a review of a decision of the Human Rights Commissioner that a complaint has lapsed. The decision of the QHRC appears to to reject the complaint but it does not explicitly inform the Complainant that the complaint has lapsed. The decision invites the Complainant to provide more information 'if after reading the decision, you believe you have more information to indicate your complaint is covered by the AD Act, the HR Act or the PID Act, please provide it to us within 7 days'.  The decision goes on to say, 'You should keep in mind that you have only 1 year from the first incident you are complaining about, to provide us with enough information to show it comes under any of the Acts. Your complaint may not be accepted if you delay beyond 1 year'.

[13]	While the Complainant has not been informed by the Commissioner that their complaint has lapsed, s 142(1) of the AD Act states that 'if a complaint is rejected, it lapses…'. 

[14]	Section 169 is titled: 'Complaint may lapse if complainant loses interest'. Section 169(3) enables a complainant to seek a review of a decision that the complaint has lapsed.  Section 169(4) states that 'if the tribunal is satisfied that the complainant has a genuine interest in continuing with the complaint, the commissioner must resume dealing with the complaint'. 

[15]	The decision of 8 February 2022 does not inform the Complainant that the complaint has lapsed due to lack of interest per s 169(1) and 169(2).  Therefore, I find that section 169(3) is not enlivened and has no application in this matter. The QIRC does not have jurisdiction to review the decision under s 169(3).

[16]	It appears to me that the QIRC does not have the power to review a decision of the QHRC to reject a complaint.  The power under section 169(3) specifically relates to a decision that a complaint has lapsed due to lack of interest.  If the power was intended to be broad and apply to matters such as rejecting a complaint on the basis that it does not comply with the requirements of s 136; or because it is frivolous, trivial or vexatious; or misconceived or lacking in substance per s 139, I find that either those provisions or a separate provision in the AD Act would enable a right to apply for review by the QIRC. 

[17]	The application is dismissed for want of jurisdiction. 

[18]	I so order.

Order

1.	The application is dismissed.