In July 2015 the Victorian Government commissioned a report ‘on the resourcing, operations, management and culture of the MFB and the CFA’. The report ‘raised concerns about the presence of discrimination and sexual harassment within the ranks of those fire service agencies’ (United Firefighters’ Union of Australia v Victorian Equal Opportunity and Human Rights Commission [2018] VSCA 252, [14]).

At the direction of the Minister, the Secretary to the Department of Justice and Regulation wrote to the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC) asking it to undertake a review of the practices within the CFA and MFB.  The request referred to s 151 of Equal Opportunity Act 2010 (Vic).  That section says (with emphasis in italics provided in the judgement of Maxwell P and Priest JA, at [19]):

151 Commission may conduct review of compliance

(1) On request of a person, the Commission may enter into an agreement with the person to review that person’s programs and practices to determine their compliance with this Act.

(1A) An agreement to review may provide for payment of the Commission’s reasonable costs of undertaking the review.

(2) If, after undertaking a review, the Commission gives the person advice about whether programs or practices are compliant with this Act, the giving of that advice does not give rise to—

(a) any liability of, or other claim against, the Commission; or

(b) any right, expectation, duty or obligation that would not otherwise be conferred or imposed on the person who has been given the advice; or

(c) any defence that would not otherwise be available to that person.

In law a person is a natural person (you and I) or a corporate entity that can sue and be sued.  Both the MFB and CFA are separate corporate entities capable of being sued and conducting litigation in their own name (Country Fire Authority Act 1958 (Vic) s 6; Metropolitan Fire Brigades Act 1958 (Vic) s 6).

It was not the CFA nor the MFB that requested the inquiry but the government that is the Minister via the Secretary of the Department.

The United Firefighters’ Union of Australia (the UFU) objected to the inquiry and commenced proceedings on 15 June 2017 to obtain a declaration that the inquiry was beyond the power of the VHREOC.  Ginnane J dismissed the unions application.  The union then appealed to the Court of Appeal.

The role of the court

The role of the court was described by Maxwell P and Priest JA at [12]-[13]. They said:

Finally, we wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the desirability of the Commission conducting a compliance review of the MFB and CFA. Whether such a review should take place is a matter for those agencies. The courts play no part in evaluating the merits of such decisions.

The role of the courts in a case such as this is quite different. It is to ensure that government operates according to law and, relevantly, to ensure that powers conferred on statutory bodies such as the Commission are exercised within the legal limits imposed by Parliament. In this case, we have held that those legal limits were exceeded, and hence that the Review was beyond the Commission’s power.

Maxwell P and Priest JA

In the Court of Appeal, Maxwell P and Priest JA said (at [22]) ‘It was common ground that the phrases ‘a person’, ‘the person’ and ‘that person’ in s 151(1) and (2) all referred to the same person.’  The VEOHRC could only conduct an inquiry into the programs and practices of the CFA/MFB it if was requested to do by the CFA/MFB, but the request did not come from them and so the VEOHRC had no authority to conduct the inquiry or publish its report.  At [56] they said:

… we consider that s 151(1) conferred no authority on the Commission to carry out the Review. Put shortly, the person which made the request to the Commission — the Government — was not the person whose programs and practices were to be, and became, the subject of the Review.

Other grounds

The UFU also argued that the inquiry by VHREOC went beyond its mandate as a review of compliance with the Equal Opportunity Act 2010 and became (at [85]):

…an investigation of ‘safety, respect, inclusion and bullying generally’ at the workplaces of the MFB and the CFA. Further, it was said, the Commission was conducting a general review of workplace behaviour and culture at the MFB and the CFA.

Ginnane J disagreed. He said, in part:

The use of the word ‘safety’ [in the terms of reference] does not mean that the Review is reviewing workplace safety generally, but reviewing workers’ safety from matters such as discrimination, sexual harassment or victimisation that might be associated with bullying

The UFU further argued that the online survey used by VHREOC was so flawed it could not be relied on.  Ginnane J said:

Any limitations in the data obtained from the surveys can be assessed, acknowledged and taken into account in any resulting analyses and reporting of the data. The Commission as a public body with important functions would be expected to clearly state those limitations.

In short Ginnane J rejected both these arguments and Maxwell P and Priest JA agreed with him.

Tate JA and the Equal Opportunity Act 2010 s 157

Tate JA agreed that the Commission had no power to conduct the investigation under s 151.  She was of the view that there was a power under s 157(1). That section says:

The Commission may undertake research into any matter arising from, or incidental to, the operation of this Act that it considers would advance the objectives of this Act.

The majority (Maxwell P and Priest JA) disagreed, they said (at [83]):

On no view, however, does s 157 authorise the Commission to conduct a compliance review of a person’s programs or practices, nor does it authorise the publication of the results of a survey conducted as part of such a review.

The Result

All three judges (Maxwell P and Priest JA; Tate JA dissenting) agreed that given the request to conduct the inquiry came from the Minister via the Secretary to the Department of Justice and Regulation, and not from either the CFA or the MFB, the VEOHRC had no authority under s 151 to conduct the inquiry or publish its report.  Tate JA would have found that there was authority under s 157 but she was in the minority in that view, the majority finding there was no alternative source of power to authorise the inquiry.  The result was that the Court of Appeal upheld the appeal from the decision of Ginnane J and found that the actions of VHREOC in conducting the inquiry and proposing to publish the report were beyond power.

What could have been done

This seems like a terrible result due to a simple administrative mix up. Both the CFA and the MFB are subject to direction from the Minister (Country Fire Authority Act 1958 (Vic) s 6A; Metropolitan Fire Brigades Act 1958 (Vic) s 8).  Presumably, the Minister could have directed both the CFA and the MFB to make a request to VHREOC and even if there was no formal direction they would have made the request if asked by the Minister to do so. Taking this course of action may have been prudent when the UFU first raised these objections to the authority of the VHREOC (which they did on 9 June 2017 (see [16])) and could have saved a great deal of heartache and money.

It further seems plausible, to me, to argue that the cooperation by the CFA and MFB with the inquiry was at least an implied request to the VHREOC.  That argument was not made. I cannot know why the lawyers involved chose not to make that sort of argument and I certainly don’t pretend to know more about their case than they did so there must have been some reason not to make such a suggestion.