Moran v Northern Illawarra Aboriginal Collective Incorporated [2008] NSWADT 114

CITATION: Moran v Northern Illawarra Aboriginal Collective Incorporated [2008] NSWADT 114

DIVISION: Equal Opportunity Division

APPLICANT Kim Moran PARTIES: RESPONDENT Northern Illawarra Aboriginal Collective Incorporated

FILE NUMBER: 071136

HEARING DATES: 8 April 2008

SUBMISSIONS CLOSED: 8 April 2008

DATE OF DECISION: 8 April 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT C Illert, agent

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 On 13 June 2007 Ms Moran lodged a complaint of race discrimination against the Northern Illawarra Aboriginal Collective Incorporated (NIAC) with the Anti-Discrimination Board (ADB). The ADB declined the complaint as lacking in substance. When that happens, Ms Moran can request that the complaint be referred to the Tribunal. However, the complaint cannot go ahead unless the Tribunal gives permission for it to proceed: Anti-Discrimination Act 1977, section 96. 2 On 8 April 2008, Ms Moran applied to the Tribunal for permission for her complaint to go ahead. Mr Illert, the General Manager of NIAC, participated by phone. Principles for granting leave 3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 4 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Background to the complaint 5 Ms Moran's complaint consists of two incidents. The first occurred on 26 April 2007 when she says she telephoned Mr Illert. The purpose of the phone call was to ask Mr Illert's opinion about a newspaper article which appeared in the Northern Leader on 26 April 2007. The article said, in part: A Research group met with local Aborigines last week to discuss the cultural significance of an area Illawarra Coal is hoping to mine. Illawarra Coal is preparing management plans for its application to mine a new site in Dendrobium and hired BIOSIS Research to conduct community consultation with stake holders in the area proposed for mining, including Aboriginal groups. Two representatives of the research group met with members of the Moran family in Bellambi last week to help determine the cultural significance of the area. … The development must be approved by the Department of Primary Industries, the Department of Environment and Conservation and the Department of Planning before it can go ahead. 6 Ms Moran says that during that phone call, Mr Illert said to her, "You dumb blacks do you know what you have done? After all we have done for you – you're nothing but dumb blacks – everyone is going to be mad at you." Mr Illert denies making those remarks. He says that the context of the phone call was that BIOSIS Research had attempted to negotiate with NIAC to provide input from Aboriginal people in order to obtain approval for the project. Mr Illert says that NIAC was not satisfied with the terms and conditions of engagement proposed by NIAC and that no Aboriginal people participated in any consultations with BIOSIS Research through NIAC. He says that Ms Moran and other members of the Moran family "broke ranks" by acting outside NIAC to provide services to BIOSIS Research. 7 The second incident about which Ms Moran complained was that she phoned Mr Illert again some time later to inquire whether there was any work for the Moran family from the Roads and Traffic Authority (RTA). Ms Moran says that Mr Illert refused to provide any work for the Moran family. Elements of race discrimination 8 In order to breach the AD Act, conduct must come within one of the areas of activity defined in that Act. Examples include employment, the provisions of goods and services and the provision of education. The only area, which Ms Moran identified, was employment. She said that Mr Illert was her boss. Mr Illert denies that Ms Moran is or was an employee of NIAC or that he is her boss. 9 Section 8 of the AD Act states that: (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Sub-sections (1) and (2) do not apply to employment for the purposes of a private household. 10 Discrimination is defined in section 7 in the following terms: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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 of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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 sub-section (1)(a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. Conclusion First incident. In relation to the first incident, there is no evidence that Ms Moran was an employee of NIAC or had applied for a job with NIAC, at the time the phone call was made. Ms Moran made the phone call to obtain Mr Illert's opinion about the newspaper article. Even if he said the words that she attributed to him, there is no reasonable prospect of Ms Moran being able to prove that there was a breach of the employment provision in section 8. Second incident. Even if the second incident can be characterised as a decision not to offer Ms Moran employment pursuant to section 8(1)(b), there is no direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with Ms Moran's race. Given that the work she was seeking involved input from Aboriginal people about heritage and other issues, the fact that she is Aboriginal cannot have been a reason for refusing to offer her a position. In those circumstances the complaint has no reasonable prospects of success. Order Leave is refused.