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  VSCA 252, ).
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 ):
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 -. 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 ) ‘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  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.
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 ):
…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 ):
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.
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 )) 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.
As always Michael, an excellent analysis. However, based on the political and industrial events of the last few years involving Victoria’s fire services, is it possible that the Government made the request for the inquiry in order to be seen to be doing something, knowing full well that this outcome would occur, enabling the Government to avoid conflict with the firefighters union?
Given that Victoria has a state election due in a month or so, it seems to me that both the union and the Government are both beneficiaries of this sad outcome.
I am sure the Government did not expect or want this outcome at all. If the UFU had not challenged it, all would have been fine, as a similar inquiry into the Victorian police was done the previous year.
Thanks Mary. I make the observation that VicPol “took its medicine” after their inquiry, and by all accounts the culture there has improved. It is a shame that the fire services will not have a similar benefit from the VHREOC inquiry.
I also note solicitor Peter Gordon’s comment in the media yesterday, where he said “If the Union’s own report indicates there is a serious problem, then what does the “real” report say?” Indeed!
I also note that in a press release (UFU WORKING TO IMPROVE VICTORIAN FIRE SERVICES WORKPLACE CULTURE, 5 October 2018 ) the UFU says:
The Court of Appeal rejected the argument that the VHREOC survey methodology meant the process was flawed. The Court did not say it had ‘concerns’ about the methodology but about the Commission’s authority under the section given the administrative process used to commission the inquiry.
Thanks for the analysis of this judgement Michael. I think it is accurate and thoughtful. But I must say I am not convinced by the majority’s argument, either on s. 151 or s.157 of the EOA.
All of the Appeal Court judges have taken a very narrow view of the text of the EOA and of what are Government ‘programs and practices’ by stating that only the legal person implementing the ‘programs and practices’ (ie the CFA and the MFB) could be the owner of them. Rather, I am persuaded by Ginnane J (at first instance, and citing good authority) that firefighting is a key state function that happens to be implemented by the CFA and MFB. The fact that they are statutory authorities with separate legal personalities is a red herring, because the programs and practices they implement, as state-owned statutory bodies, belong to the State. They are directly responsible to the Government under their legislation, and they implement Government policy. They are part of the apparatus of the State. So in my view the State Government has the status of the person under s.151 that can ask for its programs and practices (as implemented by CFA and MFB) to be reviewed.
Furthermore, the s.157 power of the the VEOHRC is broad enough in itself to support such a review, which was the basis of Tate’s dissent. The review was not beyond VEOHRC’s power, even if s. 157 was not cited by the Government in its request, and even if that request was totally invalid. The Commission had the inherent power to conduct such a review under ss. 155 and 157 without a request from any other legal person. So while the majority found that s.151 was not complied with, they made an error of logic to say that the Commission had therefore acted beyond its power, by insisting that s.151 was the only basis of power to undertake such a review.
I also agree with you, Michael, that the Minister could have directed the CFA and MFB to request such a review, maybe even to cooperate with such a review even if it was under way. But in a sense, that just reinforces the argument that these bodies are simply implementing authorities of Government policy and therefore what they do is implement the policies and practices of the State… so the State could make the request directly.
I also wondered about the decision not to argue that the CFA and MFB cooperation and MOUs with VEOHRC was a type of request. But perhaps this couldn’t be argued because they were not free at that stage to refuse, because they understood VEOHRC was empowered to conduct the review.
Mary, I agree with you. The government of Victoria operates through a number of structures but the CFA and MFB are ultimately responsible to the Minister so I would have thought these were the governments ‘program and practices’. But we are not on the Victorian Court of Appeal and the three judges that are took a different view.
Haha we’re not on the Court of Appeal YET Michael! But seriously, I think it is important that good lawyers analyse such judgements for their approach and consistency, and that we do not automatically accept that the courts get it right all the time. I think it is especially so when there is obviously quite a bit of gender politics whirling around the case, as conservative male judges have been known to resort to “black letter law” interpretations of broad enabling legislation, to read it more narrowly than was intended, thereby diminishing its disruptive potential.
I feel sure that Dr Picard isn’t suggesting that Chris Maxwell is a ‘conservative’ judge!
I agree that Tate JA’s dissent was convincing and noted in particular her conclusion that ‘review’ in s151 is not a term of art and does not confer special powers on the Commission. So a person ‘can’ request a review under s151 (and agree to pay for it) but the fact that they haven’t requested a review doesn’t mean that the Commission can’t use its general powers in furtherance of the objectives of the Act.
The apparent conflict between the cases of Anthony Hordern and Australian Education Union in this case was in my respectful view convincingly resolved Tate JA by reference to Nystrom – an argument with which the majority didn’t seem to me to fully engage. An appeal to the High Court would appear to have reasonable prospects of success based on the ground that the majority misapplied Anthony Hordern to the statutory framework here.
And agree Michael that the UFU seems to have misunderstood the reasons of the majority in light of its bulletin you note above – the majority gave short shrift to the argument that it was unreasonable to rely on the online survey and indeed this was only ‘faintly pressed’ in the Court of Appeal.
I regret that I find myself in disagreement with you and Dr Picard about s151, but you likely know more about it than I do so I’ll quit at this point!
Paul, I’m sure I know no more about it than you, having read only this judgement but if you disagree on s 151 you have the confidence of knowing you have 3 court of appeal judges who agree with you.
Paul, I am not passing judgement on any individual judges, and anyway I was away from Australia for 16 years and haven’t kept up with their jurisprudence. I was really commenting on the majority style of reductive legal reasoning vis-a-vis the purposes of the legislation, and how this style has been used frequently by conservative judges to maintain the status quo even in the face of progressive legislation. I don’t have any special knowledge of this case. My interest is because I used to practice in EO and employment law in Melbourne in the 1990s, although I now work in disaster law. I have followed this case closely as I have an active professional interest in gender issues in emergency services (employees, volunteers and disaster-affected people).
I agree with you about the potential for appeal based on Tate JA’s reasoning, although the way the Government has received the decision doesn’t sound like they are planning to do that.
I think the UFU have been very careful in what they’re protesting- as I read it, they’re arguing how it’s been done, but not necessarily the results. Very clever on their part me thinks.