Attrill v Department of Corrective Services [2012] QCATA 31

CITATION: Attrill v Department of Corrective Services [2012] QCATA 31 PARTIES: Peta Michelle Attrill (Applicant) v Department of Corrective Services (Respondent) Anti-Discrimination Commissioner (Intervener) APPLICATION NUMBER: APL302-11 MATTER TYPE: Appeals HEARING DATE: 12 December 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Michelle Howard, Member DELIVERED ON: 24 February 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal allowed; 2. The decision of the tribunal of 5 August 2011 is set aside; 3. The proceeding is listed for a directions hearing of the application for injunctive relief before a judicial member of the tribunal at a time and date to be advised by QCAT; 4. The applicant shall file and serve any further submissions by 4pm on 5 March 2012; 5. The respondent and the intervener shall file and serve any further submissions by 4pm on 19 March 2012; and 6. The applicant shall file and serve any submissions in reply by 4pm on 26 March 2012. CATCHWORDS: APPEAL – LEAVE TO APPEAL – ERROR OF LAW – STATUTORY CONSTRUCTION – where the applicant had previously sought -- 1 of 12 -- 2 injunctive relief against the actions of her employer– where the tribunal had previously determined there was no valid complaint and no jurisdiction to grant relief – whether the tribunal erred in its statutory construction – whether the tribunal gave full effect to the statutory provisions – whether the tribunal erred in finding there was no valid complaint Anti-Discrimination Act 1991, ss 4, 7, 9, 10, 11, 12, 15, 24, 25, 34, 36, 133 Public Service Act 2008, ss 3, 25, 30, 174, 175, 177, 178, 179 Queensland Civil and Administrative Tribunal Act 2009, s 142 Butler v Attorney-General (Vic) (1961) 106 CLR 268 Ferdinand v Commissioner for Public Employment (2006) ALJR 80 Goodwin v Phillips (1908) 7 CLR 1 Minister for Immigration and Multi-cultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Saraswati v R (1991) 172 CLR 1 Trade Practices Commission v BP Australia (1985) 7 FCR 499 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr K Watson of Counsel instructed by Susan Moriarty & Associates RESPONDENT: INTERVENER: Dr M Spry of Counsel instructed by Crown Law Mr Alexander Horneman-Wren of Senior Counsel, instructed by the Anti-Discrimination Commissioner REASONS FOR DECISION [1] Ms Attrill sought an injunction under s 144 of the Anti-Discrimination Act 1991 (the AD Act) to restrain her employer, the Department of Corrective Services, from continuing an ill-health retirement process under the Public Service Act 2008 (the PS Act) until her complaint under the AD Act had been considered. [2] The tribunal determined that Chapter 5 Part 7 of the PS Act had impliedly repealed the unlawful discrimination provisions in s 15 of the AD Act, to -- 2 of 12 -- 3 the extent that the section would otherwise have applied to the proposed termination of employment by way of involuntary retirement on the grounds of disability. [3] In reaching this conclusion, the tribunal considered that the specific provisions in Part 7 could not be read with the universal provisions in s 15, and that there was such inconsistency, contrariety or repugnancy that the two acts could not be reconciled. [4] As a consequence of that conclusion the tribunal determined that Ms Attrill did not have grounds to make a valid complaint against her employer for contravention of the AD Act based on action taken against her under Chapter 5 Part 7 of the PS Act. It followed that, in the absence of a valid complaint, the tribunal had no jurisdiction to grant the injunction she sought. [5] Ms Attrill seeks leave to appeal the tribunal‟s decision. The grounds of appeal are that the tribunal erred in law in construing Chapter 5 Part 7 of the PS Act as impliedly repealing s 15 of the AD Act as found; in failing to give full effect to the provisions of Chapter 2 of the PS Act and in particular, s 30; and, in finding that there was no valid complaint. [6] Under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), leave is required to appeal a decision which is not the tribunal‟s final decision in a proceeding. Although the application made to the tribunal here was in the nature of an interlocutory application, it decided the matter on a final basis. Accordingly, leave to appeal on a question of law was not required.1 [7] The decision at first instance has wide implications for Queensland public servants: it may mean that they are effectively unable to bring a complaint under the AD Act where their employer purports to act under Chapter 5 Part 7 of the PS Act. The importance of the matter prompted the Anti- Discrimination Commissioner (the AD Commissioner) to seek, and obtain, leave to intervene in the proceeding. The essential facts [8] Ms Attrill says that she has an impairment – namely, a psychiatric disability. She made a complaint to the Anti-Discrimination Commissioner on the basis that she was undergoing a process initiated under s 178 of the PS Act whereby the Chief Executive may transfer, redeploy or retire an employee if the Chief Executive is satisfied that the absence of an employee is caused by mental or physical illness or disability. [9] She complained that utilising this process contravenes the AD Act, because she has an impairment. She contended that her employer is treating her less favourably by subjecting her to a process where the ultimate result could be the termination of her employment because of her 1 Queensland Civil and Administrative Tribunal Act 2009, s 142, esp. ss 142(3). -- 3 of 12 -- 4 impairment. She argued that persons without an impairment are not able to be retired involuntarily. The legislative framework The Anti-Discrimination Act [10] Section 3 of the AD Act provides that the Act binds the Crown. [11] Section 7 provides that discrimination is prohibited on the basis of attributes, including impairment.2 Impairment is broadly defined, and includes „a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour‟ that presently exists, or previously existed.3 [12] Both direct and indirect discrimination are prohibited.4 Discrimination is prohibited in specified areas of activity.5 By virtue of s 15, a person must not discriminate in the work area by, among other things, dismissing a worker6 or by treating a worker unfavourably in any way in connection with work.7 Under these provisions discrimination in the area of work on the basis of impairment (as defined) which is either direct, or indirect, is prohibited. [13] Exemptions for discrimination in work and work-related areas are specifically provided for in Part 4 Subdivision 2. General exemptions for discrimination are provided for in Part 5. It is not unlawful to discriminate in work or work related area if an exemption in ss 25 to 36 or Part 5 applies.8 [14] In Part 4, s 25 provides that a person may impose genuine occupational requirements for a position. Section 34 provides that a person may fix reasonable terms in relation to an employee or prospective employee who, because of impairment, has a restricted capacity to do work genuinely and reasonably required for the position. Section 35 provides for lawful discrimination by a person if another person would require special services or facilities, and supplying them would impose unjustifiable hardship on the first person. Section 36 provides for lawful discrimination on the basis of impairment if the circumstances of the impairment would impose unjustifiable hardship. Whether the circumstances of the impairment would impose unjustifiable hardship depends upon all of the relevant circumstances including the nature of the impairment, and the nature of the work.9 2 Anti-Discrimination Act 1991, s 7(h). 3 Anti-Discrimination Act 1991, s 4 and schedule „impairment‟. 4 Anti-Discrimination Act 1991, ss 9, 10, 11. 5 Anti-Discrimination Act 1991, Part 4, s 12. 6 Anti-Discrimination Act 1991, s 15(1)(c). 7 Anti-Discrimination Act 1991, s 15(1)(f). 8 Anti-Discrimination Act 1991, s 24. 9 Anti-Discrimination Act 1991, s 36(2). -- 4 of 12 -- 5 The Public Service Act 2008 [15] The main purposes of the PS Act include promoting equality of employment opportunity in the public service.10 Chapter 1 Part 3 of the PS Act provides for general public service principles, namely, that public service management is to be directed towards matters including promoting equality of employment opportunity.11 [16] Chapter 2 of the PS Act is entitled „Equality of employment opportunity‟. Section 30 provides for relevant agencies including government entities to promote equality of employment opportunity (EEO) for employment matters,12 including eliminating unlawful discrimination about employment matters by the agency, against members of the EEO target group.13 [17] EEO target groups include people with a physical, sensory, intellectual or psychiatric disability, whether the disability presently exists, or did so previously, but no longer exists.14 Employment matters are defined to include „terms and conditions of service and separation of employees‟.15 [18] Unlawful discrimination is defined to mean discrimination that is unlawful under the AD Act.16 [19] Chapter 5 is entitled „Staffing generally‟. It provides for appointment,17 transfers and redeployment,18 termination, suspension and related matters,19 and assessing the suitability of persons for particular employment.20 [20] Chapter 5, Part 7 is entitled „Mental and physical incapacity.‟ It is specified to apply if an employee is absent from duty or the employee‟s Chief Executive is reasonably satisfied the employee is not performing his or her duties satisfactorily21, and the Chief Executive reasonably suspects the absence or unsatisfactory performance is caused by mental or physical disability.22 [21] If Part 7 applies, the Chief Executive may appoint a doctor to examine the employee and provide the Chief Executive with a written report on the examination23 (and require the employee to undergo the examination).24 10 Public Service Act 2008, s 3 (1)(e). 11 Public Service Act 2008, s 25(1)(g). 12 Public Service Act 2008, s 30(1). 13 Public Service Act 2008, s 30(2), especially 30(2)(b). 14 Public Service Act 2008, s 30(4) EEO Target groups (c). 15 Public Service Act 2008, s 30 employment matters (4). 16 Public Service Act 2008, s 30(4) unlawful discrimination. 17 Public Service Act 2008, Chapter 5, Part 2. 18 Public Service Act 2008, Chapter 5, Part 3. 19 Public Service Act 2008, Chapter 5, Part 4. 20 Public Service Act 2008, Chapter 5, Part 6. 21 Public Service Act 2008, s 174(a). 22 Public Service Act 2008, s 174(b). 23 Public Service Act 2008, s 175(a). 24 Public Service Act 2008, s 175(b). -- 5 of 12 -- 6 The report must include the doctor‟s opinion about whether the employee has a mental or physical illness or disability that may adversely affect the employee‟s performance.25 If so, the report must include the doctor‟s opinion about matters including the likely direct and indirect effect of the illness or disability on performance, and an estimate of how long the illness or disability or its effects are likely to last.26 [22] If, after considering the report, the Chief Executive is reasonably satisfied that the absence or unsatisfactory performance is caused by mental or physical illness or disability, the Chief Executive may transfer or redeploy the employee27 or, if this is not reasonably practicable, retire the employee from the public service.28 Specifically, the action which may be taken relating to the employee is not limited to these options.29 [23] A directive of the Public Service Commission Chief Executive may provide for matters relevant to how this part is to be applied in relation to an employee.30 Is there inconsistency or contrariness between the AD Act and the PS Act? [24] The primary issue for determination is one of statutory construction: did the tribunal err in finding that s 15 of the AD Act had been impliedly repealed by Chapter 5 Part 7 of the PS Act? [25] In Goodwin v Phillips31, Griffiths CJ held that where provisions of an Act dealing with a particular subject matter are wholly inconsistent with provisions of an earlier Act dealing with the same subject matter then, by implication, the earlier Act is repealed. The High Court went further: if the provisions are not wholly inconsistent then, to the extent that they may become inconsistent, the provisions of the earlier Act or their operation is excluded with respect to matters falling within the provisions of the later Act. [26] The repeal by implication of an earlier piece of legislation by a later one is not, however, lightly accepted or readily found to occur: in Goodwin v Phillips Barton J said that the court must consider the two Acts to be „so inconsistent or repugnant‟ that they cannot be read together.32 [27] The State argues that Chapter 5 Part 7 of the PS Act establishes a comprehensive and exhaustive scheme to deal with public service employees who are mentally and physically incapacitated, and its 25 Public Service Act 2008, s 177(1). 26 Public Service Act 2008, s 177(2), especially 177(2)(a) and (b). 27 Public Service Act 2008, s 178(1)(a). 28 Public Service Act 2008, s 178(b). 29 Public Service Act 2008, s 178(2). 30 Public Service Act 2008, s 179AA. 31 (1908) 7 CLR 1, 7 per Griffith CJ 32 Goodwin v Phillips (1908) 7 CLR 1, 10 (Barton J) adopting a statement from Hardcastle on Statutory Law. -- 6 of 12 -- 7 provisions cannot be read consistently with the AD Act – and, because it is the earlier, its provisions are impliedly repealed or overridden. This argument was accepted, at first instance, by the learned Senior Member who constituted the QCAT tribunal. [28] Ms Attrill submits that test to be applied is, correctly, whether or not the AD and PS Acts can be read together, and argues that Chapter 5 Part 7 can be reconciled with the provisions of the AD Act as containing what the latter accepts are „genuine occupational requirements‟ – a term which will be considered in some detail later. [29] The AD Commissioner submits that, where there is apparent conflict between different pieces of legislation, the tribunal must first attempt to reconcile the two statutes; and, argues that the EEO provisions of the PS Act indicate that Chapter 5 Part 7 was not intended to be an exhaustive regime – leaving scope, as it were, for the provisions of the AD Act to continue to operate. [30] There is authority for those propositions. In Butler v Attorney-General (Vic)33, Fullagar J spoke of a strong presumption that, in cases like these, both Acts are intended to operate with respect to their own subject matter. [31] Gaudron J said in Saraswati v R, “It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is to be necessarily implied. There must be very strong grounds to support that implication, for there is a presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.”34 [32] In Minister for Immigration and Multi-cultural and Indigenous Affairs v Nystrom35, Gummow and Hayne JJ held that the doctrine of implied repeal requires actual contrariety between the Acts and that, before it can be applied, the later provisions must be incapable of sensible operation if the earlier provision is in effect.36 [33] In the same case Gleeson CJ suggested that, if exhaustiveness and incompatibility leads to the conclusion that only one provision or group of provisions were intended to apply, then implied repeal might be accepted where irreconcilable legal rights or obligations are created.37 [34] In Ferdinand v Commissioner for Public Employment38 the High Court urged „close attention‟ to the construction of the relevant provisions. In that case, the court considered the termination provisions of the South 33 (1961) 106 CLR 268, 276 per Fullagar J. 34 (1991) 172 CLR 1, 17 per Gaudron J. 35 (2006) 228 CLR 566. 36 (2006) 228 CLR 566, 585. 37 (2006) 228 CLR 566, 571-572. 38 (2006) ALJR 80, 555 (per Gummow and Hayne JJ). -- 7 of 12 -- 8 Australian Police Act were, ultimately, incompatible with the Industrial and Employee Relations Act 1994 (SA). [35] Close attention to the wording of the legislation is of course, with respect, vital: provisions that appear to conflict may be intended to operate in parallel, as observed in Trade Practices Commission v BP Australia.39 [36] The principles that emerge from these decisions indicate that the exercise of construction should be undertaken on the reasonable presumption that Parliament intended, in the absence of express repeal in the latter Act of any relevant part of the former, that both Acts should operate; and that, if possible, a construction which also preserves the effective operation of the earlier Act is to be preferred. [37] The application of these principles suggests these questions: can the provisions be constructed in a way that they operate in parallel? Alternatively, are they so inconsistent or repugnant that they can not be reconciled? [38] At a broad level, these two Acts deal with different subject matter. The AD Act provides for the anti-discrimination regime, and s 15 operates to generally prohibit discrimination in the area of work. The PS Act operates broadly to provide for the public service, its operation, and administration. There is no inherent inconsistency, however, in their objects or functions. [39] Under the AD Act, the prohibition on discrimination in the area of work is not absolute. There are a number of exemptions. It is not unlawful to discriminate to impose „genuine occupational requirements‟ for a position; nor to fix reasonable terms in relation to an employee who, because of an impairment, has restricted capacity to do the work genuinely and reasonably required for the position; nor, in circumstances where supplying special services and facilities would be necessary and this would impose unjustifiable hardship on the employer; and, it is not unlawful where a person has an impairment, if the circumstances of the impairment would impose unjustifiable hardship having regard to the nature of the employment and the nature of the work. [40] The PS Act is the later Act. It does not purport to explicitly repeal the operation of any provision of the AD Act. Indeed, it is clear from the purposes of the PS Act, and in particular s 30 of the PS Act, that equality of employment opportunity for EEO target groups, which specifically include persons with psychiatric disability, applies to government entities. [41] In particular, government agencies must act to address matters including eliminating unlawful discrimination, as defined under the AD Act, about employment matters. Employment matters also specifically include terms and conditions of service and separation of employees. In light of these express provisions it is apparent, as we read the PS Act, that Chapter 5 Part 7 was not intended to impliedly repeal the operation of the AD Act. 39 (1985) 7 FCR 499, 506. -- 8 of 12 -- 9 [42] Although he tribunal concluded that Part 7 could not be read with s 15 of the AD Act, we think, with respect, that in light of the principles set out earlier the correct question is, rather, whether Chapter 5 Part 7, in its context within the PS Act, can be read with the broader AD Act provisions. [43] In essence, the PS Act in Chapter 5 Part 7 provides a mechanism empowering a Chief Executive who reasonably suspects that a public servant is not attending work or performing his or her duties satisfactorily because of mental or physical illness or disability to take certain steps. The Chief Executive may require the employee to submit to a medical examination to determine whether the employee does have a mental or physical illness or disability that may adversely affect their performance and, if so, the likely effect on performance and the likely duration of the illness or disability. [44] If the Chief Executive, after considering the report, is reasonably satisfied that the employee‟s absence or performance issues are caused by mental or physical illness or disability, the Chief Executive may transfer or redeploy the person; or, if that is not reasonably practicable, retire the employee; or, take any other action which is considered appropriate.40 [45] Viewed broadly, these provisions, if applied in the context of the purposes of the PS Act, the public service principles, and the EEO obligations provided for in the PS Act, provide a positive mechanism to enable a Chief Executive to find out what the issues are, and make appropriate arrangements to enable an employee with a mental or physical illness or disability to remain in their employment. It may be necessary to redeploy the employee or to provide the employee with special services or facilities to facilitate this outcome. However, if this is not reasonably practicable then, as a last resort, the employee may be retired. [46] These provisions and the mechanism they create are not, in our view, inconsistent with the requirements of the AD Act. [47] The AD Act allows for lawful discrimination by way of the imposition of „genuine occupational requirements‟, and for the fixing of reasonable terms when an employee has a restricted capacity to do work genuinely and reasonably required for the position. The AD Act also allows for lawful discrimination in the event that the supply of special services or facilities would impose unjustifiable hardship. It also allows for lawful discrimination in respect of impairment, specifically if the circumstances of the impairment would impose unjustifiable hardship on the employer, having regard to the nature of the impairment and the nature of the work. [48] It is submitted for Ms Attrill that the PS Act provisions in Chapter 5 Part 7 can, and should, be read in a way that reconciles them with the AD Act. Part 7, it is said, imposes „genuine occupational requirements‟. There is nothing, it is said, to prevent the State from imposing a genuine 40 Public Service Act 2008, Chapter 5 Part 7. -- 9 of 12 -- 10 occupational requirement upon a public servant under section 25 of the AD Act. [49] It may readily be accepted that, for the orderly operation of the public service, it is a „genuine occupational requirement‟ for employees to generally (subject to leave entitlements) attend work, and satisfactorily perform their duties. [50] Further, empowering the Chief Executive with the mechanism under s 175 of the PS Act (where impairment, by way of a mental or physical illness or disability, is reasonably thought to be causing non-attendance or unsatisfactory performance) is consistent with fixing reasonable terms in relation to an employee who, because of impairment, has restricted capacity to do work genuinely and reasonably required for the position under s 34 of the AD Act. [51] The „reasonable term‟ is the requirement that the employee submit to a medical examination with a view to ascertaining the nature and effect of the illness or disability; its likely effect on the employee attending work or satisfactorily performing their duties; and, the likely duration of any such effects.41 [52] There is no reason to conclude that the action that the Chief Executive may take under section 178 of the PS Act is necessarily inconsistent with the AD Act. Indeed, this construction is reinforced by the lack of criteria prescribed to guide Chief Executives‟ decisions about action to be taken. Although under section 179AA of the PS Act directives may be prepared, they do not have legislative force and must be consistent with applicable legislation. If this construction is adopted, the action that may reasonably be taken will depend upon the circumstances of the illness or impairment and the nature of the work, and whether any proposed action will impose unjustifiable hardship on the employer. [53] For example, if the Chief Executive receives a medical report that contains, for example, the medical opinion that an employee who is an accounts clerk has a broken bone and, for the next two months, will need a modestly priced appliance fitted to his or her desk to facilitate effective working arrangements, after which complete recovery is expected, the reasonable course would be to fit the appliance, not to transfer or redeploy, or retire, the person. [54] Similarly, if a person has a psychiatric impairment or disability and the report received suggests that the person is currently unwell but that he or she is likely to be able to attend work and/or perform their duties part-time within one month and full-time within 3 months, then an appropriate action by the Chief Executive, having regard to the nature of the impairment and the nature of the work, might be to arrange services to develop a return to work program. Doing so would not impose unjustifiable hardship. To 41 Anti-Discrimination Act 1991, s 34. -- 10 of 12 -- 11 transfer, redeploy or retire the person could appear, however, to constitute unlawful discrimination in the circumstances. [55] On the other hand, if a report is received by a Chief Executive which provides an opinion that an employee has an advanced degenerative illness that has resulted in profound cognitive and physical impairment, and that the employee will be unable to perform their work tasks at any future time, the considerations must be different. There are no services or facilities which could be provided to assist the employee to continue working in their role. Transferring or redeploying the employee would not facilitate the continued work of the employee and a decision may be made to retire the employee. [56] In circumstances like those, where the disability is inimical to the satisfactory performance of the employee‟s work and the evidence contained in the medical report is conclusive, retiring the employee would not appear to constitute unlawful discrimination under the AD Act – because continuing to employ the person in the circumstances of the impairment would arguably impose unjustifiable hardship on the employer, whatever type of work the employee had been engaged to undertake. [57] This analysis shows that there is no compelling reason to conclude that the two statutory regimes cannot operate in parallel. There is no inherent contrariness. Indeed, if Chief Executives were not obliged to act in accordance with their obligations under the AD Act, given the lack of prescribed legislative criteria to guide decision-making under s 178 of the PS Act, arbitrary decisions could otherwise be made that disregard the EEO obligations imposed under the PS Act, which recognise, and endorse, the aspects of the AD Act discussed above. [58] It is also apparent, given this analysis, that Chapter 5 Part 7 does not contain a comprehensive and exhaustive regime that excludes the operation or effect of the AD Act. The provisions of the PS Act in this part do not guide the exercise of a Chief Executive‟s discretion; they are silent about the relevant considerations. Indeed, the relevant considerations are those established by the principles of the PS Act, including management of the public service in a manner that promotes equality of employment opportunity and, in recognition of those matters prescribed in Chapter 2, include eliminating unlawful discrimination about employment matters under the AD Act. [59] The requirements of the two pieces of legislation are therefore intended to operate in a parallel and complementary fashion. There is no contrariness or inconsistency between them. Is there a valid complaint? [60] The tribunal determined, in view of its construction of s 15 of the AD Act and Chapter 5 Part 7 of the PS Act, that Ms Attrill did not have a basis on which to make a valid complaint against the Department for contravention -- 11 of 12 -- 12 of the AD Act, and that QCAT therefore had no jurisdiction to grant an injunction under s 144 of the AD Act. [61] It follows from what we have found regarding the construction of the AD Act and the PS Act, that Ms Attrill had grounds to make a complaint. [62] Accordingly, we are satisfied that the tribunal decision was erroneous and that we should make orders setting aside the decision of 5 August 2011. What other orders should be made? [63] Since the tribunal‟s decision, the Department has terminated Ms Attrill‟s employment. [64] On appeal, she argues that the injunctive relief she originally sought should now be granted. [65] The Department argues that her plea for injunctive relief to compel reinstatement should not be entertained, because she has not adduced medical evidence as to her fitness for employment if reinstated, and because she did not seek a stay of the tribunal‟s decision, nor apply to the Queensland Industrial Relations Commission for reinstatement. The Anti-Discrimination Commissioner submits that, as a matter of utility, an injunction cannot be granted. [66] Ms Attrill submits that she could not apply to the Industrial Relations Commission for industrial relief because of s 153 of the AD Act, which prohibits a worker who has lodged a complaint that has been accepted under the AD Act from later applying for industrial relief. She asserts, also, that there was conflicting medical evidence about her ability to work which was before the tribunal when it made its original decision. [67] In the case of an inconsistency, the provisions of an enabling Act which confers jurisdiction on the tribunal prevail over the QCAT Act.42 The apparently broad operation of s 144 of the AD Act in relation to the tribunal‟s power to grant an injunction does not, in its terms, modify s 59 of the QCAT Act. Accordingly, the power to grant an injunction is exercisable only by a judicial member of the tribunal.43 Before injunctive relief can be further considered the proceeding must be relisted in respect of the injunctive relief before a judicial member, or members. [68] It is appropriate to list the proceeding for further hearing before a judicial member. We will direct that the parties file and exchange submissions, according to a timetable. Thereafter, the judicial member with carriage of the matter may conduct a Directions Hearing to determine if it might be determined on the papers, or list it for further hearing. 42 QCAT Act, ss 6, 7. 43 QCAT Act, s 59(4). -- 12 of 12 --