De Domenico v Marshall CaseBase | (1999) 142 ACTR 1 | (1999) 153 FLR 437 | [1999] ACTSC 1 | BC9909001 DE DOMENICO v MARSHALL (1999) 142 ACTR 1 Australian Capital Territory Reports · 11 pages SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Miles CJ 18 November 1998, 3 February 1999 — Canberra [1999] ACTSC 0001 Headnotes Administrative law — Administrative tribunals — Whether Administrative Appeals Tribunal bound by rules of evidence — Onus of proof — (ACT) Administrative Appeals Tribunal Act 1989 s 32. Constitutional law — Judicial powers — Separation of powers — Commonwealth Constitution s 122. Civil and political rights — Sexual harassment — Sex discrimination — Statements of sexual nature made by employer to third party — (ACT) Discrimination Act 1991 ss 58, 59. The appellant, M, complained that her employer, D, had subjected her to conduct amounting to sexual harassment. On 29 December 1995 the Discrimination Commissioner dismissed M's complaint as unsubstantiated. On appeal, the Administrative Appeals Tribunal set aside the Commissioner's decision, and found that M had engaged in unlawful conduct, within the meaning of the Discrimination Act 1991 (ACT). D appealed to the court, on the basis of questions of law. D contended that the AAT had erred in law, by applying a principle that no onus lay on M to prove the substance of her allegation; and secondly, that in carrying out its review, the AAT acted under the misapprehension that it was unnecessary to consider the admissibility of any of the material tendered or called to support M's allegations. Finally, D contended that the AAT failed to appreciate that the determination of a complaint of sexual harassment was essentially judicial in character. Held, dismissing the appeal: (i) Although as a matter of policy there was merit in the submission that the AAT should conduct itself in a judicial manner in determining whether a finding of sexual harassment has been made out, in the ACT there is no requirement of a strict division between judicial power and executive or administrative power. The ACT legislature gave the power to determine sexual harassment complaints to the Commissioner, with the power to review such determinations being given to the AAT (at [25]). (1999) 142 ACTR 1 at 2 (ii) There is no general principle that either the Commissioner or the AAT is bound to apply the rules of evidence, although fairness may, in some cases, require the Commissioner or the Tribunal to have regard to rules of evidence, particularly where the proceedings are in the nature of judicial proceedings (at [27]). (iii) Whether or not the Tribunal's decision is affected by an error of law is not assessed, pursuant to s 46(1) of the Administrative Appeals Tribunal Act 1989 (ACT), by any criterion that it is “unsafe and unsatisfactory” (at [43]). Page 2 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 (iv) Obiter dicta: An employer will not subject an employee to sexual harassment by making a statement of a sexual nature to or in the presence of a third party, unless the employee in question happens to be present (at [14]). Appeal This was an appeal from a decision of the Administrative Appeals Tribunal, on a question of law, pursuant to s 46(1) of the Administrative Appeals Tribunal Act 1989 (ACT). The AAT's decision had set aside a finding by the Discrimination Commissioner dismissing a complaint of sexual harassment against the respondent under the Discrimination Act 1991 (ACT). The facts are sufficiently clear in the judgment. ALISTER ABADEE BARRISTER I F Byrne and W Woodrow instructed by Deacons Graham & James for the appellant. The respondent appeared in person. Miles CJ. [1] The appellant appeals under s 46(1) of the Administrative Appeals Tribunal Act 1989 (ACT) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 June 1998. [2] Section 46(1) provides as follows: Appeals to Supreme Court from decisions of the Tribunal 46(1) A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding. [3] Section 46(1) is identical to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), except for the provision in the latter that an appeal from the Commonwealth Tribunal is to the Federal Court of Australia. [4] The decision appealed against was expressed as follows: The Tribunal sets aside the decision of the Discrimination Commissioner dismissing Mrs Marshall's complaint as not substantiated. The Tribunal makes the finding that it is satisfied that Mr De Domenico as the respondent to the complaint has engaged in conduct that is unlawful conduct under the Discrimination Act 1991. The question of what further direction, if any, the Tribunal should give in this matter pursuant to the Discrimination Act 1991 and the Discrimination (Amendment) Act 1996 is reserved for further hearing in accordance with directions to be given by the President. [5] For the sake of completeness, it may be noted that the court was told on 6 November 1998 that on 4 November 1998 the Tribunal directed that the respondent to the appeal (Mrs Marshall) be awarded the sum of $1500 by way of compensation. [6] A previous decision of the Tribunal in the same proceedings was subject to an appeal to the court. The court in its judgment of 17 July 1997 dismissed the (1999) 142 ACTR 1 at 3 appeal and confirmed the decision of the Tribunal that Mrs Marshall was an employee of the appellant for the purposes of s 59(1) of the Discrimination Act 1991 (ACT) (the Discrimination Act). [7] The proceeding in the Tribunal, which led to the previous appeal and to the decision now appealed against, was an application for review by the Tribunal of a decision of the Discrimination Commissioner (the Commissioner) made on 29 December 1995. The decision of the Commissioner was to dismiss as unsubstantiated, a complaint Page 3 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 made by Mrs Marshall under the Discrimination Act alleging “sexual harassment and sex discrimination” on the part of the appellant. [8] The office of Commissioner is created by s 112 of the Discrimination Act. Under s 70 a complaint that a person has done an act that is unlawful under specified provisions of the Discrimination Act may be lodged with the Commissioner by, inter alia, a person aggrieved by the Act. The Commissioner is given various powers in relation to the investigation of a complaint. Under s 79, as it was at all relevant times, an investigation shall be conducted in such manner as the Commissioner thinks fit, but with minimum formality and technicality and with maximum expedition. Among the various powers conferred is the power to take evidence on oath or affirmation and to give notice to persons for the purpose of providing information or producing documents. [9] Under s 90, as it was at the relevant time, the Commissioner, after completing an investigation shall “dismiss any complaint that the Commissioner is satisfied has not been substantiated” or “if satisfied that the respondent has engaged in unlawful conduct” give one or more of the directions specified in the section as to future conduct, reparation or payment of compensation. Contravention of any such direction is made an offence: s 91. Compensation is recoverable as a debt: s 92. [10] Under s 94, application may be made to the Tribunal for review of a direction or other decision of the Commissioner under various sections, including the dismissal of a complaint under s 90. [11] Amendments made by the Discrimination (Amendment) Act 1996 (ACT) removed the power to give directions enforceable under s 91 and s 92 and confined the power of the Commissioner to investigation and conciliation of complaints. The general power of review by the Tribunal under s 95 was also abolished and a power of review of sorts was conferred upon a newly established Discrimination Tribunal constituted by a magistrate. A party to a Discrimination Tribunal hearing may now appeal to the Supreme Court on a question of law from a decision of the Discrimination Tribunal in that hearing: see s 108D(1) of the Discrimination Act. [12] The complaint of Mrs Marshall against the respondent was that he had subjected her to conduct amounting to sexual harassment within the terms of the Discrimination Act. For relevant purposes, sexual harassment is defined by s 58 of the Discrimination Act to include engaging in “unwelcome conduct of a sexual nature” including “the making of a statement of a sexual nature to, or in the presence of, a person”. [13] Section 59(1) of the Discrimination Act provides that it is unlawful for an employer to subject an employee or a person seeking employment to sexual harassment. [14] It was sexual harassment of the nature thus defined that was alleged against the appellant. It is clear that the provisions are very wide in their scope. However, despite that width I do not think that they are intended to make (1999) 142 ACTR 1 at 4 unlawful the making of a statement of a sexual nature by an employer unless the statement is made in the presence of the employee alleged to be subjected to the harassment. In other words, an employer does not subject an employee to sexual harassment by making a statement of a sexual nature to or in the presence of a third party, unless the employee in question happens to be present. This is relevant to some of the conduct in question in the present case. [15] The notice of appeal from the Tribunal to this court is dated 26 June 1998 and contains numerous grounds of appeal. Some of the grounds are repetitious, and others, such as that claiming that the decision of the Tribunal is “unsafe and unsatisfactory” are inappropriate, having regard to the limited nature of an appeal from the Tribunal to the court. [16] The appeal to the court is restricted to questions of law. In the conduct of the appeal the court exercises an independent judicial function. Subject to what is said below, the decision of the Tribunal is an administrative decision. The Tribunal is not established in order to interpret the law or to decide the legal rights and liabilities of the parties. An administrative decision is given in accordance with what the decision-maker understands to be the law, and the decision-maker is free to express that understanding as part of the decision. However, the decision, if truly administrative, does not determine legal rights and liabilities. [17] The two major grounds of appeal are, first, that the Tribunal erred in law in applying a principle that no onus lay on Mrs Marshall to prove the substance of her allegation, and, secondly, that in carrying out the review the Tribunal acted under the misapprehension that it was unnecessary to consider the admissibility of any of the material tendered or called in support of the allegations. These two grounds, and perhaps some other grounds, were related. A further ground was that the Tribunal failed to appreciate that the determination of a complaint of sexual harassment under the Discrimination Act was essentially judicial in character, although made by a body which had been established to carry out administrative functions and to make decisions of an administrative nature. [18] It is immediately apparent that there is an incongruity between, on the one hand, a judicial function and, on the other hand, the function of the Commissioner as an administrative decision-maker. That incongruity is maintained in the role of the Tribunal reviewing a decision of the Commissioner. In the federal sphere, constitutional limitations prevent the conferring of judicial power upon an administrative body, since the judicial power of the Commonwealth Page 4 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 is to be exercised only by a court whose members are appointed pursuant to Ch III of the Commonwealth Constitution: see for instance Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ; 127 ALR 1. Such constitutional limitations do not apply to bodies which are established by Commonwealth legislation pursuant to the Territory's power under s 122 of the Constitution to make laws for the government of a territory. Thus, it is within the power of the Legislative Assembly of the Australian Capital Territory, established by s 8 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), to enact legislation which establishes bodies which exercise both judicial and administrative powers, or to create bodies which, although given an administrative title or label, exercise powers which are essentially judicial in nature. It is unnecessary to deal at length with the considerations that lead to the conclusion that in determining the complaint made by Mrs Marshall, the Tribunal (and the Commissioner previously) was carrying (1999) 142 ACTR 1 at 5 out a judicial function or exercising judicial power, since the nature of the power does not invalidate the proceedings or the decision of either. I leave aside the recent discussion of these otherwise difficult issues in Kruger v Commonwealth (1997) 190 CLR 1 ; 146 ALR 126, especially Gaudron J at CLR 108–9 and Gummow J at CLR 174–6. [19] The point made by Mr Byrne for the appellant in this regard is that the failure to recognise that it was exercising judicial power or carrying out a judicial function led the Tribunal to conclude wrongly that the proceedings were non-adversarial, that there was no onus of proof cast on Mrs Marshall and that the Tribunal could ignore all questions of admissibility of evidence. [20] The Tribunal went to some length in its reasons to emphasise that there was no room for the application of a concept of onus of proof in proceedings before it. The Tribunal was similarly emphatic that the provision in the Discrimination Act that the Commissioner was not bound by the rules of evidence (former s 79(1)) meant that the Commissioner was wrong in considering and ruling on matters of admissibility. In particular, the Tribunal stated that there was no need to “comb through” each affidavit in order to ascertain what matter should be admitted into evidence. In similar vein, the Tribunal made repeated references to the advantages enjoyed by the parties by reason of the proceedings being non-adversarial and the advantage enjoyed both by the parties and the Tribunal itself by the non-applicability of the rules of evidence. [21] As the cases show, where an allegation of sexual misconduct made by one person against another can be brought before an official decision-maker in order for a decision to be made whether or not such misconduct occurred, the process leading to the decision necessarily imports a relationship of adversity between the person making the allegation and the person against whom the allegation is made. Where the decision-making process can be invoked only by the lodging of a document called a complaint, it is difficult to regard the process as free from the features of a contest in which the complainant's allegations are made out or not made out against a person named and treated in the process as a respondent: see Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455. The Discrimination Act itself makes use of such terms as “complainant”, “respondent” and “parties to an investigation”, for example s 74. [22] In the absence of a presumption imposed by the law that the allegations are true, the person against whom they are made does not have to demonstrate that they are not true, especially when the decision-maker is authorised to give directions, which, if not complied with, give rise to criminal liability, or, if directing the payment of compensation, give rise to civil liability enforceable as a debt. [23] Nevertheless it is true that as a matter of strict legal doctrine, a complainant alleging sexual harassment under s 59(1) of the Discrimination Act does not bear an onus of proof. The concept of onus of proof in both civil and criminal proceedings in courts is well established. The Tribunal described and discussed that concept with accuracy. There is no point in this court prolonging the discussion. [24] It was submitted on behalf of the appellant that a finding of sexual harassment is a serious matter and that apart from the potential liability of being subject to a direction of the Commissioner, a person against whom such a finding is made, stands to be condemned in the eyes of the community. That is (1999) 142 ACTR 1 at 6 undoubtedly so. Public condemnation of those who practise discrimination, including sexual harassment, is the rationale behind the legislation. But the submission went further to propound that the function of determining a complaint of sexual harassment is in essence an exercise of judicial power and that its essential nature is not changed by giving it to a body which is also given administrative functions or whose functions are usually administrative. The function in question being essentially judicial, according to the submission, the Tribunal ought to have conducted itself as a court would have done, with due regard for such principles as application of the rules of evidence and of an onus of proof. Page 5 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 [25] While there may be thought to be merit in the submission as a matter of policy, it must be recognised that, in the governmental structure of a Territory of the Commonwealth, there is no requirement of a strict division between judicial power on the one hand and executive or administrative power on the other hand. In contrast to the division between the judicial and executive power of the Commonwealth, created and recognised by the Constitution, particularly Ch III, there appears to be no fetter on the exercise of judicial power by executive or administrative bodies created by or under legislation of the Commonwealth Parliament pursuant to the power to make laws for a Territory pursuant to s 122 of the Constitution. In fact, recent years have seen the establishment of numerous Tribunals in the ACT, which exercise power and jurisdiction which was previously exercised by courts or which might be expected to be exercised by courts. The Territory legislature gave the power to determine complaints of sexual harassment to the Commissioner, and the power to review such determinations to the Tribunal, and for the purpose of considering the legitimacy of that power, it matters not whether the power is characterised as judicial or administrative. [26] There may also be force in the submission that, as a matter of policy, the rules of evidence and onus of proof should be applied to the determination of a complaint of sexual harassment. Mr Byrne submitted that, despite the provision in s 32(1)(c) of the AAT Act that the Tribunal is not bound by the rules of evidence, it should be recognised that in sexual harassment cases, the rules of evidence are to be applied unless there is good reason to exclude them. Reliance was placed on the decision of Higgins J in A and B v Director of Family Services (1996) 132 FLR 172. [27] However, that was not a case concerned with the AAT Act but with the Children's Services Act 1986 (ACT) and in particular the provision in s 93(3) that a court exercising jurisdiction under that Act is not bound by rules of evidence. Whatever be the reasons for dispensing with the rules of evidence in a children's court, they may be expected to be quite different from those which apply to administrative review. It is clear, in my opinion, that there is no general principle that either the Commissioner or the Tribunal was bound to apply the rules of evidence unless there was reason to exclude those rules. To propound such a principle would be clearly contrary to the provisions of both the Discrimination Act and the AAT Act. On the other hand it may well be that fairness in some cases may require the Tribunal (or the Commissioner) to have regard to the rules of evidence, particularly where the proceedings are in the nature of judicial proceedings, as they were in the present case. [28] In any event, it is apparent from a reading of the Tribunal's reasons that, despite its avowed distancing itself from what it regarded as the outmoded and (1999) 142 ACTR 1 at 7 technical procedures of the courtroom, the Tribunal did conduct itself much as a court would have done in any event. Its decision was accompanied by a lengthy separate statement of reasons which reads very much like the judgment of a court. The statement sets out in the familiar way the nature of the proceedings, the principles of law to be applied, the evidentiary material considered and the conclusions drawn. To the extent that the Tribunal was critical of the Commissioner for conducting the proceedings as if they were adversarial, the Tribunal itself, in very many respects, went about its task in much the same way. Thus, while it rejected the concept of an onus of proof (noting the contrary view of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424–5 ; 109 ALR 30), the Tribunal recognised that “there is no practical difference in the result that would have flowed from casting an onus of proof on the applicant from the result that we have reached independently of considering the matter on that restricted basis”. [29] The Tribunal went on to say something about what it variously called “standard of proof” and “standard of satisfaction”. After citing and discussing case law, including the well-known decision of Briginshaw v Briginshaw (1938) 60 CLR 336, the Tribunal stated at paras 39 and 40: The findings open to the Tribunal are either that it is satisfied that the complaint has not been substantiated or that it is satisfied that the respondent engaged in unlawful conduct. The Commissioner dismissed Mrs Marshall's complaint under s 90(2)(a) of the Discrimination Act because she was satisfied that it had not been substantiated. To find now in Mrs Marshall's favour requires a finding by the Tribunal that it is satisfied that the conduct complained of did occur. Adopting Sir Ronald's term, [citing a statement by Sir Ronald Wilson, sitting as a Commissioner under the Commonwealth Sex Discrimination Act that what is required is “persuasive proof of the complainant's allegation”] we consider that, in order to make a finding that we are satisfied that the respondent did engage in unlawful conduct under the Discrimination Act, we must be persuaded that sexual harassment has occurred but not persuaded beyond reasonable doubt. We do not have to be certain that the case has been made out, but we must have a comfortable degree of satisfaction that it has been. We must reach that degree of satisfaction based on evidence sufficiently robust to justify the conclusion, as is pointed out by Dixon J in the passage we have quoted (from Briginshaw v Briginshaw). That is, we must have more than “inexact proofs, indefinite testimony, or indirect inferences”. Page 6 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 [30] Thus, despite expressly and repeatedly disavowing the application of an onus of proof, the Tribunal correctly recognised and imposed a requirement that the allegations made by Mrs Marshall against the respondent be proved to a proper standard based on proper evidentiary material. [31] Mr Byrne submitted that error of law is displayed in the reference by the Tribunal in other passages to an evidentiary onus of proof as distinguished from an onus of proof, and a statement that the evidence of Mrs Marshall establishes a “prima facie case and, to that extent, she has established the evidentiary onus”. It is not, in my view, clear exactly what the Tribunal meant in this latter statement, but if it does involve an error of law, it is not an error that vitiates or even undermines the Tribunal's process of reasoning or its conclusions. [32] On the question of the application of the rules of evidence, it may be, as Mr Byrne submitted, that the enthusiasm of the Tribunal for dispensing with legal niceties was expressed in such a way as to suggest that the Tribunal thought that it was precluded from applying the ordinary rules of evidence, and that the provision in s 32(1)(c) that it was not bound by the rules of evidence meant that (1999) 142 ACTR 1 at 8 it was bound not to apply them. Again, as with the onus of proof, a reading of the Tribunal's decision shows that, in fact, it analysed the material before it in accordance with an elaborate set of ground rules which stated at the beginning of its reasons how it proposed to assess the considerable amount of documentary and oral testimony it had before it. In effect, the Tribunal's ground rules laid down an overriding test of relevance. They encompassed corroboration and other tests of the probative value of the evidentiary material and of particular evidentiary items contained within it. Hence, while it would have been an error of law for the Tribunal to proceed under the misapprehension that it was precluded from applying any of the rules of evidence, its reasons indicate that such was not the case. It proceeded in a rational and orderly way and in general in accordance with the basic principle of evidence, that material which is irrelevant to the question to be decided is not to be taken into account. [33] It may have been preferable for the Tribunal to rule on the admissibility of at least those parts of the material which the Commissioner had ruled inadmissible. The Tribunal would not have had to spend the “hours” that it saw the Commissioner as having spent in that process, because a cursory glance of the transcript of the proceedings before the Commissioner reveals that a good deal of the material objected to on behalf of the appellant was admitted over objection. The difficulty that arises in the approach of the Tribunal to allow everything to stand and to be treated as evidence was that, unless there was an express evaluation of the probative value of every item, the appellant would not be in a position to know the precise basis on which the serious findings against him were made. However, in practical terms, the difficulty does not arise in the present case because the Tribunal in its detailed and careful statement of reasons, appears to have assessed the weight of everything in the material before the Commissioner and before it which might reasonably be taken to have been considered by it as having potential probative value. In other words, the reasons are such that it could not be reasonably inferred that the Tribunal gave any weight to any item that it has not mentioned and then discussed. [34] The general submission that, in failing to rule on admissibility at all, the Tribunal was likely to have taken irrelevant material into account was supplemented by the reference to particular matters mentioned in the Tribunal's reasons which, so it was submitted on the appeal, were irrelevant and should not have been considered at all. However, I do not think that among such matters there are any of such substance as to deserve express consideration in the judgment of the court. There are one or two exceptions. While I think that the Tribunal was correct in regarding the proceedings as not strictly adversarial, its task was to determine a complaint of specific instances of alleged sexual misconduct on the part of the appellant. It was not authorised to initiate or conduct a general inquisition into the appellant's past in order to unearth sexual misconduct on other occasions. Evidence of sexual misconduct on other occasions was not necessarily irrelevant, as experience in the criminal courts recognises. But evidence of “similar conduct” or “tendency” raises very sensitive matters and, according to the ordinary rules of evidence, which in this instance at least are surely grounded in good sense, is to be permitted only if it can be done without prejudice to the person against whom particular allegations are made and need to be determined. Further, in criminal proceedings, it is well established that evidence of an accused's character is not to be permitted, unless introduced by the accused, and then only subject to stringent safeguards to avoid unfair (1999) 142 ACTR 1 at 9 prejudice to the accused. To decide allegations of misconduct by a person by reference to that person's character or tendencies is obviously fraught with danger. [35] In the present case there was evidence from a witness, identified as “CC”, that she had been told by a member of the Legislative Assembly that he was upset about rumours that he was a paedophile, and that he was convinced that the rumours originated from the appellant. The Tribunal, in my view, should not have hesitated in ruling that material as inadmissible. It was so remote from the issue of whether the appellant had engaged in sexual harassment of Mrs Marshall that, if it had had any effect at all, then it could have been only to create unfair Page 7 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 prejudice against the appellant. The content of the allegation was scandalous and absolutely unconnected with the issues for determination. If it had been contained in an affidavit prepared by a legal practitioner, then, in my view, that practitioner should have been censured. The Tribunal was clearly in error in not rejecting this part of the evidence of the witness “CC”. However, in the end, it appears that the Tribunal decided that, while it accepted the evidence of “CC”, and of other witnesses, about this rumour, “a statement by one person to another about the sexual proclivities of a third person is not of itself a statement of a sexual nature”, and that “consequently we make no finding of sexual harassment based on this incident”. As I have already indicated, a statement of a sexual nature made by an employer to a third person and not in the presence of the employee alleged to be the subject of harassment, cannot amount to sexual harassment within the meaning of the Discrimination Act. Thus ultimately the objectionable evidence of “CC” made no difference to the decision of the Tribunal. [36] Another item of evidence which could not possibly have been of any probative value and which should have been ruled inadmissible from the outset, was the affidavit of Mr David Widdup, sworn 29 October 1997. It is not necessary to refer to it in detail. Again, a legal practitioner responsible for such an affidavit would deserve censure. [37] A number of other submissions were made in an attempt to identify error of law on the part of the Tribunal in this decision. They may be dealt with briefly. [38] It was submitted that the Tribunal had led the appellant to believe that the review would be conducted as a hearing de novo, relying entirely on material placed before the Tribunal and without reliance on the documentary material or oral testimony before the Commissioner. An allied point was that the Tribunal considered absence of cross-examination of various witnesses on various points to be of significance. For instance, witness “E” had said nothing on certain matters in question (sexual gestures on the part of the appellant) in her original affidavit or in her evidence to the Tribunal although she had spoken of sexual gestures in her oral evidence before the Commissioner. It may be doubted whether the absence of cross-examination could be of any significance in assessing the weight of the evidence given by the witness, but, in any event, there is no error of law here. [39] It was submitted that the reasons given by the Tribunal for criticising the Commissioner's decision to reject the evidence of “E” on some of these matters were themselves erroneous, and that at least some of the reasons were based on a misapprehension of what the evidence had been. Another error, so it was submitted, was the Tribunal's misconception of corroboration in that in order to (1999) 142 ACTR 1 at 10 test whether the evidence of “E” corroborated or supported the evidence of Mrs Marshall, the Tribunal looked to see whether the evidence of Mrs Marshall supported that of the witness “E”. [40] In the light of the evidence from some of the persons who worked in and around the appellant's office that he made gratuitous sexually explicit remarks (not in the presence of Mrs Marshall), and of other witnesses who said that in their experience he did not do so, and in the light of the appellant's own evidence that he sometimes made ribald remarks to some women whom he thought would not take offence, the Tribunal concluded that the appellant made such remarks to women with whom he felt comfortable, but that he would not feel so comfortable in the presence of Mrs Marshall. The Tribunal concluded also that there was no doubt that the witness “E” would have seemed straight-laced and prim to the appellant, and one who was “perhaps, in his view, a fair target, because of her reaction, for the kind of provocation common in work environments before behaviour of that kind was outlawed by discrimination and sexual harassment laws”. It is difficult to find justification in the evidence discussed in the Tribunal's reasons for these conclusions or to understand why the Tribunal found it of assistance to come to the last-mentioned conclusion when the issue was not the appellant's conduct generally but rather whether he had subjected Mrs Marshall to sexual harassment. The appellant should not have had to be subjected to findings that he “perhaps” sexually harassed anybody other than Mrs Marshall. [41] There are other submissions relating to the credibility of Mrs Marshall as it was affected by the authorship of a letter dated 21 October 1994. It is sufficient to say that the Tribunal took this matter into account. [42] It is also remarkable that the Tribunal found established an allegation by witness “E” made in oral evidence to the Commissioner, that the appellant would sometimes rub his genital area in her presence (not in the presence of Mrs Marshall) when making sexually explicit remarks about women to whom he had spoken on the telephone. The Commissioner found that allegation not established for reasons which, on the face of it, appear valid. In particular, the Commissioner took into account the absence of any such allegation in the affidavit sworn by witness “E”. No such allegation was made in the oral evidence of witness “E” before the Tribunal. The affidavit and the evidence before the Tribunal was restricted to sexually explicit remarks and did not extend to conduct. It does not appear that the Tribunal found the remarks made in the presence of Mrs Marshall as established and the evidence does not appear capable of establishing that it did. Hence, the finding of the Tribunal that the gestures as well as the remarks occurred at all, and the absence of a finding that either or both occurred in Mrs Marshall's presence, makes it difficult to see how the matter of gestures could assist in establishing the sexual harassment of Mrs Marshall by the Page 8 of 8 De Domenico v Marshall, (1999) 142 ACTR 1 appellant. However, to the extent that the Tribunal considered that the evidence on these aspects was supportive of the evidence of Mrs Marshall the error, if any, was not an error of law. [43] Ultimately the appeal founders on the question whether the decision of the Tribunal was affected by error of law. It is not enough to conclude that the decision was “unsafe and unsatisfactory”. That is a criterion by which the verdict of a jury may be set aside after conviction by the judgment of a court of criminal appeal. It is not a test to be applied under s 46(1) of the AAT Act. There was no error of law which vitiates the Tribunal's decision. (1999) 142 ACTR 1 at 11 [44] The appeal is dismissed. Unless the parties wish to be heard, I propose to order that the appellant pay the respondent's costs. Order The appeal is dismissed. End of Document