CITATION: Khan v Cumberland Community Radio Inc trading as 2CCR-FM [2006] NSWADT 222 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Mohammed Shafiq Khan RESPONDENT Cumberland Community Radio Inc trading as 2CCR-FM FILE NUMBER: 061019 HEARING DATES: 14/06/2006 SUBMISSIONS CLOSED: 06/14/2006 EXTEMPORE DECISION DATE: 06/14/2006 DATE OF DECISION: 07/31/2006 BEFORE: Rice S - Judicial Member CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT No personal appearance: written submissions REPRESENTATION: RESPONDENT No personal appearance: written submissions ORDERS: 1. Leave is refused REASONS FOR DECISION Decision 1 For the reasons given below, on 14 June 2006 Mr Khan was refused leave to proceed with his complaint. Background 2 Mr Khan and members of his family applied for membership of Cumberland Community Radio Inc, an incorporated association (CCR). CCR operates the radio station 2CCR. The application for membership was considered and rejected by the Annual General meeting of CCR, and Mr Kahn complained to the Anti-Discrimination Board that that rejection was conduct that was discrimination on the ground of race, in the provision of services, in contravention of the Anti-Discrimination Act 1977 (the Act). 3 The President of the Anti-Discrimination Board investigated the complaint and declined it on the basis that the conduct complained of was not in contravention of the Act. Mr Khan exercised his right to have his complaint referred to this Tribunal for inquiry, subject to leave being granted to enable him to proceed. 4 I heard the leave application on 14 June. Both Mr Khan and CCR relied on written submissions that had been provided to the Tribunal, and neither attended the hearing. Mr Khan had advised the Tribunal that he knew "the outcome in advance, based on past conducts of both the ADB and ADT, and that will be 'Leave refused'. For that reason Mr Khan saw "no point in [his] attendance at the Tribunal" and was "not prepared to waste any slight bit of [his] precious time and monetary resources in this matter in coming to the Tribunal". The Chairman of CCR, Mr Graham Johnson, had written to the Tribunal on 17 May to say that he would be unable to attend the hearing "for personal and professional reasons". 5 I convened the hearing on 14 June and gave my decision that leave should be refused. On 23 June Mr Khan requested written reasons for my decision. Mr Khan was entitled to receive the written reasons by 21 July and I regret that I have been unable to provide them within that time. The transcript of my decision was not available to me until 5 July and I was then overseas from 8-18 July. I have provided these written reasons as soon as possible after my return. 6 In making his request Mr Khan stated, in anticipation, that the reasons could "only be most corrupt, discriminatory, illegal, illogical, unethical and immoral etc in complete misuse and abuse of [the Tribunal's] powers authorities, duties, responsibilities, ethics, moral obligations and reasoning etc". These are my reasons. Material considered 7 In giving my decision on 14 June I approached the decision on the basis set out by the Tribunal in Xu v Sydney West Area Health Service [2006] NSWADT 3. I read and took account of correspondence to the Tribunal from Mr Khan under cover of an email that was sent on 10 May 2006 and further under cover of an email that was sent on 30 May 2006; and of correspondence from CCR that was sent to the Tribunal by letter dated 17 May 2006 and previously on 28 April 2006; and of the material in the report from the President to the Tribunal under cover of a letter dated 6 April 2006. Voluntary body 8 Specifically I had regard to Mr Khan's submission that, contrary to the argument made for CCR, CCR is not a voluntary body within the meaning of s57 of the Act. If it is a voluntary body then the Act will not apply to rules or practices which restrict its membership. Mr Khan did not make any argument that had not been made and considered by the Tribunal when the same issue arose between Mr Khan and another radio station earlier this year: Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15. Mr Khan stated that he relied on those previous submissions (at para 29 of his submission to this Tribunal). 9 In light of the Tribunal's reasons in that matter Khan v Blacktown City Community Radio (at paras 13-22), Mr Khan's repeated submissions, and the Rules of CCR (at pages 73-77 of the report to the Tribunal from the President of the Anti-Discrimination Board), I formed the view that CCR would be likely to succeed if it relied on the exemption in s57 of the Act. Provision of services 10 If CCR were not exempt then questions relating to liability would arise. The first of these would be whether the conduct complained is conduct covered by the Act. The only possible conduct could be the provision of services (s19 of the Act). 11 In opposing the granting of leave CCR submitted that its decision on membership is not within the definition of 'services' for purposes of the Act. Mr Khan did not address this issue in his submissions. In Khan v Blacktown City Community Radio the Tribunal said that "[a]s there are no provisions in the [Act] making termination of membership of an incorporated association unlawful, these allegations are highly unlikely to constitute a breach of the [Act]". I came to the view that the same can be said for admission to membership of an incorporated association, and so the conduct Mr Khan complains of is unlikely to constitute a breach of the Act. The reason for the conduct 12 In any event, if the refusal of membership could be said to the refusal of a service, it is unlikely that Mr Khan could establish that his race was a reason for the refusal. The application for membership was in fact an application for group membership, and Mr Khan was the nominee of the group (page 11 of the President's report). The 'group' was described on the application form as "Khan Family". 13 At a hearing, the evidence for CCR would be that the decision to refuse membership was made solely because the application did not meet the requirements of the incorporated association's Rules. The Rules relating to membership (page 74 of the President's report) provide that an eligible applicant for membership must be, if not a natural person, a co-operative, incorporated association, unincorporated association or company. Whether CCR was correct in saying that Mr Khan's family was none of a co-operative, incorporated association, unincorporated association or company is irrelevant, although on ordinary usage of those terms it was probably correct in so saying. It matters only that that was in fact the reason for CCR's decision. On the material available to me I formed the view that it is likely that that would be established at a hearing. 14 Aware of the possibility that Mr Khan's race was a ground to some extent for the conduct complained of, I was persuaded, by the lack of direct evidence to that effect and the fact that Mr Khan's son was admitted to membership as an individual, to the view that Mr Khan is unlikely to be able to show that race was a ground even to some extent. Accordingly I formed the view that it its unlikely that Mr Khan could establish that the conduct he complains of was on the ground of his race. 15 The greater part of Mr Kahn's submissions were, as he described them in his statement, "examples, acts, conducts, treatments, manners and behaviours of gross, solid and extreme racial and religious discrimination. … against my family members and me personally over the last five-six years". None of this material is relevant to the question of whether leave should be granted in relation to the specific complaint, and I did not take it into account in my decision. 16 For these reasons, I came to the view that Mr Khan's complaint does not have reasonable prospects of success. Accordingly I refused him leave to proceed with his complaint. ORDER 1. Leave is refused. 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.