Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rina Santini obo Antonio Santini v Associazione Internazionale Trevisani nel Mondo [2020] NSWCATAD 236 Hearing dates: 11 September 2020 Date of orders: 23 September 2020 Decision date: 23 September 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C A Ludlow, Senior Member Decision: Leave to proceed with the complaint of disability discrimination is refused. Catchwords: EQUAL OPPORTUNITY - application for leave to proceed with complaint – refusal of membership application – exempt conduct of voluntary bodies – lack of jurisdiction Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176 Tallong Park Association Inc v Sutherland [2007] NSWADTAP 19 Texts Cited: None cited Category: Procedural and other rulings Parties: Rina Santini obo Antonio Santini (First Applicant) Rina Santini (Second Applicant) Associazione Internazionale Trevisani Nel Mondo (Respondent) Representation: Solicitors: Applicant (Self Represented) Respondent (Self Represented) File Number(s): 2020/00223953 Publication restriction: Nil REASONS FOR DECISION Background 1. Mrs Santini, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with complaints of discrimination under s 96 of the Anti-Discrimination Act 1977 (the AD Act) on her own behalf and on behalf of her husband, Antonio Santini. On 8 August 2019 the President of the Anti-Discrimination Board of NSW received the complaints against the respondent, the Associazione Internazionale Trevisani nel Mondo (AITM). The applicant alleged that the AITM discriminated against her husband on the grounds of his disability and against herself on the ground of her association with her husband, by refusing their applications for membership and refusing to sell them tickets to a concert. 2. The President declined the complaints on 22 April 2020 on the basis that they were lacking in substance. 3. On 18 May 2020 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act. Legislation and principles governing the grant of leave 1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act). 2. Section 92 provides: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint— (a) the President is satisfied that— (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of— (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96." 1. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A). 2. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)). 3. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]). The nature of the complaint 1. Mrs Santini and her husband wanted to obtain tickets to a luncheon concert organised by the AITM which was to be held at a licensed venue on 5 March 2017. Mrs Santini made inquiries and was told that tickets were restricted to members of the AITM. Mrs Santini then took steps to apply for membership of the AITM. She paid for the membership through a third party and received a receipt. 2. She was given two application forms to complete and then she returned them in person to the Assistant Secretary of the AITM. At the time of delivery she asked to buy tickets for the concert. She said she was told that there were no more tickets. She complains that she was also told by a representative of the AITM that the AITM did not want to accommodate her husband at the concert because he was in a wheelchair and people in wheelchairs were "troublesome". Their application for membership was declined shortly afterwards. Evidence and submissions of the applicant 1. The applicant's evidence consisted of the papers before the President of the Anti-Discrimination Board. At the hearing she claimed that the Assistant Secretary told her that there was no place at the function for a person in a wheelchair and they could not accommodate her husband. 2. Mrs Santini said that despite sending her application to the AITM's office and telephoning numerous times about her application, she only got excuses. 3. In her response to the President Mr and Mrs Santini denied that they had behaved rudely or offensively and provided character references. They claimed that there was a personal vendetta against them. Evidence and submissions of the respondent 1. The respondent was represented at the hearing by its public officer, Ms Elaine Santolin who provided oral evidence and also relied on its response to the complaint which was before the President. Based on this evidence, the AITM is a not for profit, membership based organisation. It was founded in Italy and has a branch in Sydney which was incorporated in 2014. It has a Constitution, a Code of Ethics and a Code of Conduct. The Code of Conduct applies to all members. 2. The application form signed by Mrs Santini was in evidence and shows her signature underneath the words: "In the event of my admission as a member, I agree to be bound by the rules of the Associazione for the time being in force." 1. The Code of Conduct includes a rule that members will treat each other and the Committee with respect and courtesy. Ms Santolin said that Ms Santini's behaviour in attempting to obtain tickets to the event breached those rules and the Committee decided that for this reason they would not be admitted as members. She referred to conduct alleged to have occurred at the club where the concert took place and Mrs Santini's persistent attempts to obtain tickets by conducting AITM officials although she was told none were available. Mrs Santini denies that her behaviour was in any way inappropriate. 2. Ms Santolin denied that any officer of the AITM said that having a person in a wheelchair attend the event would be troublesome and stated that the AITM has a number of members with disabilities, including members who use wheelchairs. 3. On 16 March 2017 the Committee of the AITM considered the Santini's application for membership and unanimously agreed to decline the application on the basis that Mrs Santini's behaviour showed an unwillingness to comply with the AITM's rules and Code. 4. On 18 April 2017 Mr Santini inquired about his membership application. The Committee advised Mr Santini in writing that his wife had completed and signed the application form for both of them and his application had been declined on the same basis. Consideration 1. Section 49B of the AD Act provides: "49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the grieved person) on the ground of disability if the perpetrator— (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability— (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 1. Section 49M provides: "49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability— (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services." 1. Section 57 provides: "57 Voluntary bodies (1) In this section, body means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include— (a) a co-operative registered under the Co-operatives National Law (NSW) or a society under the Friendly Societies Act 1989, or (b) a friendly society registered under the Friendly Societies Act 1989, or (c) a building society or credit union registered under the Financial Institutions (NSW) Code, or (d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or (e) a registered club. (2) Nothing in this Act affects— (a) any rule or practice of a body which restricts admission to membership of that body, or (b) the provision of benefits, facilities or services to members of that body." 1. In order to establish that the AITM discriminated against Mr Santini on the grounds of his disability, the applicants must establish: 1. That the AITM treated Mr and Mrs Santini less favourably than it would have treated in the same or similar circumstances, a person who does not have that disability or does not have a relative with that disability; 2. That the less favourable treatment of Mr Santini was because of his disability and the less favourable treatment of Mrs Santini was because of her relationship with him; and 3. That the less favourable treatment occurred in the provision of goods or services by the AITM. 1. Before considering whether there has been any discrimination, however, the complaint faces an initial obstacle. It does not appear that this matter was considered when the complaint was before the President of the Anti-Discrimination Board. The AITM is a "voluntary body" 1. In my view the conduct of the AITM in refusing membership and tickets to Mr and Mrs Santini is exempted from the operation of the AD Act by s 57. That section of the AD Act excludes certain activities of "voluntary bodies" which relate to membership and benefits for members. The effect of this is that no activities of that kind by a body which comes within s 57 can amount to discrimination under the AD Act. 2. In Tallong Park Association Inc v Sutherland [2007] NSWADTAP 19 the Appeal Panel held that in order to come within s 57, a body must meet three criteria: 1. the activities of the body must be carried on "otherwise than for profit"; and 2. the body must not be established by an Act; and 3. the body must not be a body specified in s 57(1)(a)–(e). 1. In Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176 the Tribunal said that: "The intention of an exception such as that in s 57 is as was said in Gardner at paragraph 12: to protect the right of freedom of assembly so that a voluntary organisation could chose those persons it wished to be members and deal with those members in any manner that the members agreed, whether or not those activities might appear to persons who are not members of the association to be discriminatory. …But in our view the term 'carried on otherwise than for profit' does not identify a body by reference to its actual financial results each year. It identifies a body by reference to its character. Whether it has a profit or a loss, and whether it calls a profit and surplus and a loss and deficit, the question is "what is it its character? Does it have the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest? The exception provided for in s57 is, in our view, directed towards such bodies, and that it is bodies with that character that are identified by the term 'carried on otherwise than for profit'. ([103 – 108]) 1. The available evidence shows that the AITM's activities are not for profit and it is not established by an Act. Furthermore it is not a body specified in s 57(1(a) to (e). It is relatively small with 387 members, and its members pursue a common interest favouring Trevisani migrants and their descendants. In my view the AITM meets the criteria of a voluntary body under s 57. 2. The evidence of Ms Santolin and Mrs Santini shows that in order to obtain the tickets Mr and Mrs Santini had first to become members of the AITM. Ms Santolin stated that the AITM's conduct in refusing membership to Mr and Mrs Santini was based on a rule of the organisation relating to admission to membership. According to the response of the AITM, the Code of Conduct states: "Members are expected to be loyal to the Association; behave in a manner which enhances the traditions, reputation and public acceptance of the Association; to treat each other and the Committee with respect, courtesy and privacy; and contribute to ensuring the non-tolerance of discrimination and harassment." It is evident that Mr and Mrs Santini accept this as a requirement as in their response to the Board they stated that if they were admitted as members, they would agree to abide by the AITM's constitution and Code of Conduct. 1. Based on the available evidence I am satisfied that Mr and Mrs Santini's membership applications were declined according to a rule and practice of the AITM which restricts admission to membership of that body. This included the requirement for members to agree to be bound by the rules of the AITM; the rule in the Code of Conduct that members behave in a certain manner; and the process of their application being considered by the Committee. Accordingly refusing membership to the Santinis was conduct which is exempt from the operation of the AD Act under s 57(2)(a). 2. The evidence establishes that the concert was a benefit or service for members of that body and non-members were not able to buy tickets. The conduct of voluntary bodies in providing benefits or services for members are also exempt under s 57(2)(b) and therefore the conduct regarding the tickets is also exempt. 3. As s 57 applies to the conduct complained of, the AD Act does not apply to the conduct and this Tribunal does not have jurisdiction to deal with the complaint. The application for leave must be refused. Order 1. Leave to proceed with the complaint is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2020