Chapman v Women's Legal Resources Ltd [2005] NSWADT 276

CITATION: Chapman v Women's Legal Resources Ltd [2005] NSWADT 276 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Colin Chapman RESPONDENT Women'sLegal Resources Ltd FILE NUMBER: 041144 HEARING DATES: 24/05/2005, 19/08/2005 SUBMISSIONS CLOSED: 08/19/2005 DATE OF DECISION: 12/02/2005

BEFORE: Rice S - Judicial Member; Bolt M - Non Judicial Member; Clayton S - Non Judicial Member APPLICATION: Dismissal of complaint - applicant does not wish to proceed, proceedings are subject to want of prosecution or proceedings abandoned MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT K Eastman, Barrister ORDERS: The complaint is dismissed

REASONS FOR DECISION Decision 1 For the reasons we give below, Mr Chapman's complaint is dismissed. What happened 2 In early July 2004 – there is some dispute as to the precise date – Mr Colin Chapman telephoned the Domestic Violence Advocacy Service (DVAS) in Sydney. As we describe in more detail below, DVAS is the name of an activity that is carried out by a company limited by guarantee, Women's Legal Resources Ltd (WLR). 3 Mr Chapman's telephone call was answered by a solicitor employed by WLR, Ms Sandra De Nardi, who was rostered on duty to answer telephone calls made to DVAS. 4 Mr Chapman said "I am the victim of domestic violence". He was told by Ms De Nardi "I am unable to assist you. This is a women's service". Mr Chapman asked to speak to Ms De Nardi's supervisor, who was Ms Vanessa Crawford, another solicitor employed by WLR. When Mr Chapman challenged, by reference to anti-discrimination laws, the refusal of services to him, Ms Crawford said to him "We have an exemption". 5 Mr Chapman complained to the Anti-Discrimination Board about the refusal of a service to him, and his complaint has been referred to this Tribunal for inquiry. The issue 6 The threshold issue is whether, assuming that what happened was the refusal of a service to Mr Chapman, that refusal was conduct that was exempt from the Anti-Discrimination Act 1977(ADA). 7 The exemption on which WLR relies is one that arises under s126A ADA, which reads: 126A Exemption for special needs programs and activities (1) Nothing in Parts 3-4C renders unlawful anything done by a person in good faith for the purposes of or in the course of any program or activity for which certification is in force under this section as a special needs program or activity. (2) The Minister may certify a program or activity to be a special needs program or activity ... ... 8 Although headed 'Exemption for special needs programs and activities', s126A does not operate to exempt special needs programs and activities. Rather, it exempts a person's conduct in certain circumstances. 9 Section 126A(2) permits certification of a program or activity as a "special needs program or activity". Section 126A(1) exempts anything done by a person, in good faith, for the purposes of or in the course of such a certified (ie, special needs) program or activity. There is, therefore no general exemption under s126A, only certification. The confusion may arise from the misleading heading to s126A, and from the preceding provision, s126, which does empower the Minister to grant exemptions, by order published in the Gazette. 10 Although it is common and convenient shorthand to refer say, as Ms Chapman did, "We have an exemption", it is strictly correct for WLR to say instead "We have a certificate as a special needs program or activity". Certification may or may not lead to conduct being exempt in the circumstances. An exemption arises only when something is done "for the purposes of or in the course of" the certified program or activity, and is done in good faith. 11 Mr Chapman says that the certification, while undoubtedly in existence, does not operate in the circumstances to exempt from the ADA the conduct that he alleges took place. He does not suggest that the conduct was done other than in good faith, but says that it was not done "for the purposes of or in the course of" anything that was certified. At issue, therefore, is whether the certification under s126A operated to exempt the conduct in the circumstances. Procedure 12 Relying on the effect of the certification in the circumstances, WLR applied to have Mr Chapman's application summarily dismissed under what was then s111 and is now s102 ADA (see Schedule 1 Part 5 Cl.14 ADA for the transitional provisions). 13 In deliberating on that application we formed the view that we could not decide it without hearing evidence as to the circumstances in which the service was said to have been refused. Consequently we heard all the evidence relating to the merits of Mr Chapman's application. Because, however, we have decided that the conduct Mr Chapman complains of was indeed exempt from the Anti-Discrimination Act 1977, we do not go on to decide whether that conduct would have been rendered unlawful by the ADA. History of the certification 14 In May 1995 WLR wrote to the NSW Attorney General saying "Women's Legal Resources Limited, which runs the Women's Legal Resources Centre, a community legal centre, [requests] certification as a special needs program qualifying the Company for exemption" under the ADA. The letter went on to say "Women's Legal Resources Limited believes certification is appropriate and necessary". The letter described the history of WLR; its Memorandum and Articles which include a statement of its objects; and its programs, services and activities and the special need for them among women. 15 In July 1995 the President of the Anti-Discrimination Board wrote to the Attorney General "in reply to your Department's request for advice from Women's Legal Resources Limited for an exemption under Section 126A of the Anti-Discrimination Act". The President advised the Attorney General that "[e]xemptions under Section 126A are granted to programs or activities . . . Section 126A does not provide for the exemption of a company". The President's letter informed the Attorney General that, in light of this, WLR had been told by the Anti-Discrimination Board that "the company's application will be dealt with as an application for exemption under Section 126A for the legal resources program of the Women's Legal Resources Centre run by Women's Legal Resources Limited". 16 The President's letter went on to say "The legal resources program provides advice, representation, advocacy, education, and information on legal matters to women. The program also involves research and advocacy work on legal and law reform issues in areas of concern to women". The President recommended that the Attorney General grant an exemption under s126A to WLR "for its Women's Legal Resources Program". 17 WLR's letter of application to the Attorney General had not used the terms "legal resources program" or "Women's Legal Resources Program". We heard no evidence of any discussion that took place between the President and WLR that led to the President's designating and describing the "legal resources program" of WLR as he did. The President's description of the "legal resources program" appears to be his summary of the activities described in WLR's letter of application. For example, his description of what constitutes the "legal resources program" reflects very closely the activities and services which WLR was established to, and did in fact, provide: 'advice' (Clause 2(a)(i) Memorandum and Articles), 'representation' (Clause 2(a)(iv)), 'advocacy' (Clause 2(a)(iv)), 'education' (Clause 2(a)(v) and Clause 2(e)), 'information' (Clause 2(a)(ii)), and 'law reform' (Clause 2(f)). Provision of "referral" (Clause 2(a)(iii)) is also referred to, but was not mentioned by the President. 18 In August 1995 the Director General of the NSW Attorney General's Department wrote to WLR about WLR's "request for the Women's Legal Resources Centre program run by Women's Legal Resources Limited to be certified as a special needs program under s126A under the Anti-Discrimination Act 1977". The Director General's letter advised that the Attorney General, by his delegate, had approved the application "in accordance with the recommendation of the Anti-Discrimination Board that the program be certified as a special needs program". 19 It is not strictly true that WLR requested certification for anything called a "legal resources program" or the "Women's Legal Resources Centre program". It was on the advice of the President of the Anti-Discrimination Board that the Attorney General treated WLR's application as such a request. Reference in the Director General's letter to 'the program' is a reference to the description of the activities given by the President, which in turn is a summary of the activities described by WLR in its letter of May 1995. 20 There can be no suggestion that this compromises or invalidates the certification: s126A does not require that an application be made, and does not define a certified program or activity as one that has been the subject of an application. It appears comfortably within the Attorney General's power to certify a program in circumstances such as this, where the existence and nature of the program, and the desirability of its being certified, are brought to his attention by both the provider of the program and the President of the Anti-Discrimination Board. 21 The President's advice to the Attorney General was, in effect, that "you can't certify an entity but you can certify what the entity does". He redirected the Attorney's attention from WLR itself to what WLR did, and summarised that in his own description of a "legal resources program". We are satisfied that what was in fact certified were the activities described by WLR in its letter of application, collected by the President under the designation "legal resources program". Scope of the certification 22 The question that Mr Chapman asks is whether the program that the Attorney certified encompassed the activity conducted as 'DVAS' such that the conduct he complains of could be said to be for the purposes of a certified activity. The activity was the provision of telephone advice and further assistance. Was, Mr Chapman asks, the DVAS activity part of WLR's legal resources program certified by the Attorney General? He says "no such exemption [ie, certification] had been issued to any program or activity named Domestic Violence Advocacy Service". 23 Mr Chapman researched and prepared a chart of the operation of WLR, with which WLR substantially agrees. The chart, documentary evidence, and the evidence of Ms Diane Hamey, a solicitor employed by WLR, together establish that the incorporated entity WLR has conducted activities under various unregistered names over the years. It has conducted activities under the names Women's Legal Resources Centre since 1982, Domestic Violence Advocacy Service (DVAS) since 1986, Women's Domestic Violence Court Assistance Program Training and Resource Unit since 1996, Indigenous Women's Program since 1998, and Walgett Violence Prevention Unit since 2000. In 2003 WLR brought these activities together under a trading name, 'Women's Legal Services NSW'. 24 The Women's Legal Services NSW Annual Report 2003-2004 describes the overall operation as "Women's Legal Resources Ltd trading as Women's Legal Services NSW and incorporating Women's Legal Resources Centre, Indigenous Women's Program, Domestic Violence Advocacy Service, Women's Domestic Violence Court Assistance Program Training and Resource Unit, and Walgett Violence Prevention Unit". 25 As the Annual Report shows, the various activities are operated with funds received and managed by WLR. Specifically, the financial statements show income received by WLR and expended on activities that include DVAS. The Annual Report shows that everything done under the name DVAS, including the provision of a telephone advice service, are reported as activities of WLR, and that those activities are carried out by staff employed by WLR. To the same effect, a services plan that is a schedule to WLR's funding agreement with the NSW Legal Aid Commission shows the activities of DVAS to be activities within Women's Legal Services NSW, the trading name of WLR. Similarly, an agreement for funds to operate the DVAS was "signed for and on behalf of Domestic Violence Advocacy Service" by WLR and the seal of WLR was affixed. 26 We are satisfied that WLR activities certified in 1995 – advice, representation, advocacy, education, and information on legal matters to women – are carried out by WLR under the name DVAS. Activities of DVAS are part of the WLR program certified under s126A in August 1995. Was the conduct within the certified program? 27 Being a program certified under s126A is only the first step to establishing that conduct is exempt. The conduct will be exempt only if it was done for the purposes of or in the course of that program. 28 It is clear from the evidence of the officers of WLR that Ms De Nardi's answering of Mr Chapman's telephone call, and the response she gave him, were things done by her for the purposes of and in the course of carrying out the activity named DVAS, and therefore for the purposes of and in the course of WLR's certified legal resources program. Good faith 29 Finally, the conduct is exempt only if it was done in good faith. 30 We heard evidence from the people who engaged in the conduct that Mr Chapman complains of. Mr Chapman has not suggested that the conduct was not done in good faith, and in the circumstances no such suggestion could reasonably be made. The conduct was done in good faith. Summary of findings 31 Mr Chapman is correct to observe that no certification had been issued to any program or activity named Domestic Violence Advocacy Service". But that is not the point. None of WLR's activities that were certified were identified by name, and there is no requirement that they should have been. How an organisation names, brands or promotes what it does is irrelevant to whether the program or activity has been certified. 32 Mr Chapman challenged what he understood, from what he was told at the time by Ms De Nardi and Ms Chapman, to be a claim by DVAS that it was exempt. In fact, the claim that was made, properly understood, was by WLR that its provision of telephone and other support services under the name DVAS was part of a certified program, and that the refusal of the service was done in good faith for the purposes of and in the course of carrying out the program. 33 It is understandable that Mr Chapman perceived the claim to be that DVAS was exempt; it appears that its position in relation to s126A was not fully understood by WLR itself. 34 WLR's claim, properly stated having regard to the terms of s126A and the circumstances, is made out. The conduct Mr Chapman complains of was for the purposes of and in the course of the activity DVAS, a part of a certified program. In those circumstances the conduct complained of cannot be unlawful under the Anti-Discrimination Act 1977. 35 We therefore dismiss the complaint pursuant to s102 of the Anti-Discrimination Act 1977 on the grounds that it is misconceived and that the conduct alleged, if proven, could not disclose the contravention of a provision of the Act. ORDER 1. The complaint is dismissed.