Summary of the Court of Appeal's judgment delivered on 4 October 2018.

The Court of Appeal today (by majority) upheld a challenge to the legality of a review into workplace discrimination within the Country Fire Authority and the Metropolitan Fire Brigade.

The review, by the Victorian Equal Opportunity and Human Rights Commission, was commenced in 2016 at the request of the Victorian Government. The Commission was asked to review the programs and practices of the CFA and the MFB and, specifically, to report on

      the nature and prevalence of discrimination, sexual harassment and victimisaiton amongst current [CFA] and [MFB] personnel (paid and voluntary) and those whol left in 
      or after 2010 ('the Review').

The United Firefighters' Union challenge the validity of the Review, contending that it was not authorised by the relevant provisions of the Equal Opportunity Act 2010. Under s 151(1) of that Act, the Commission may, if requested by a person, enter into an agreement to review that person’s programs and practices for compliance with the Act.

The Court of Appeal unanimously held that s 151(1) did not authorise the Review, as the person requesting the review (the Government) was not the person(s) whose compliance with the Act was to be reviewed (the CFA and the MFB). The majority of the Court (President Maxwell and Justice Priest) also rejected an alternative argument, that the Review was supported by provisions of the Act which give the Commission research and advocacy functions. Justice Tate would have dismissed the appeal on the basis of the ‘alternative argument’, concluding that s 151 was not relevantly an exclusive source of power. In her view, a review requires the exercise of the general powers of the Commission. These can be enlivened in various ways and not only by a request under s 151. She held that the Commission has the power to conduct, and complete, the Review and publish its report by reason of s 157 and associated provisions of the Act. The trial judge held that all the research to date had been supported by s 157 and there was no ground of appeal challenging that finding.

President Maxwell and Justice Priest pointed out that the Court was not concerned with, and expressed no view about, the desirability of the Commission conducting a compliance review of the MFB and the CFA. They said:

           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.


NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment .

Read the Court's full judgment on AustLII 

Supreme Court of Victoria
Supreme Court of Victoria
Date of publication