CITATION: Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 DIVISION: Equal Opportunity Division FIRST APPLICANT Mohammed Shafiq Khan PARTIES: SECOND APPLICANT Mohammed Haroon Khan FIRST AND SECOND RESPONDENT Blacktown City Community Radio SWR FM Assocation Inc FILE NUMBER: 051100; 051102; 051103 HEARING DATES: 12/10/05 SUBMISSIONS CLOSED: 10/17/2005 DATE OF DECISION: 01/16/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 IW v City of Perth (1997) 191 CLR 1 CASES CITED: Kennedy v Anti-Discrimination Commission of the Northern Territory, Supreme Court of the Northern Territory, LA1/05 (20417920), 23 September 2005 Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANTS In person REPRESENTATION: RESPONDENT D Gardner, solicitor ORDERS: File No 051100 leave is refused; File No 051102 leave is refused; File No 051103 leave is refused. REASONS FOR DECISION 1 Mr Mohammed Shafiq Khan and his son, Mr Mohammed Hamood Khan, are asking for the Tribunal's permission to go ahead with three complaints of discrimination against Blacktown City Community Radio SWR FM Association Inc (the Radio Station). The President of the Anti-Discrimination Board declined their complaints as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (ADA) requires the applicant to obtain the Tribunal's permission before the complaints can go ahead. Both Mr Khan and his son are Muslims and they say that they were discriminated against because of their ethno-religious origin. Mr Khan also alleges that he was discriminated against because of his age. 2 Both Mr Khan and his son were members of the Radio Station and had contracts to broadcast programs in certain time slots. Mr Khan's first complaint of race discrimination relates to a decision by the Radio Station to suspend his radio program with effect from 11 August 2004. The reason the Radio Station gave for this decision was that Mr Khan was in breach of the sponsorship rules. Mr Khan maintains that presenters from a different racial group (Punjabi) who were also breaching sponsorship rules were not suspended. According to representatives from the Radio Station, Mr Khan's case involved multiple, complex and serious issues that could not be resolved quickly and that is why he was suspended when other presenters were merely placed under investigation. Mr Khan and his son later amended their complaint to include a further allegation about the termination of their membership of the Radio Station. 3 Mr Khan's second complaint of age discrimination relates to events which occurred on 15 February 2005 when the Radio Station permanently allocated his old time slots to younger Hindu women. Mr Khan was 62 years old at the time of these events. However, as the re-allocation of his time slots does not involve any treatment of Mr Khan, it is not conduct about which he can complain. Mr Khan had already been suspended. The decision to put someone else in his time slot was a result of that suspension, but it was not discrete treatment of Mr Khan that could constitute discrimination. The only potential relevance of this allegation is as evidence that one of the reasons the Radio Station suspended him, or refused to re-instate him, was his age. For that reason, leave is refused for Mr Khan to continue with the complaint of age discrimination in relation to the Radio Station's alleged conduct of re-allocating his old time slots to younger women. 4 Mr Khan's son complained about the Radio Station's decision to suspend his Bollywood hits radio program with effect from 6 February 2005. He also complained about an incident on 15 April 2005 when the management committee of the Radio Station removed him from the Programming Committee. 5 The complaints all allege that the Radio Station discriminated against Mr Khan and his son in relation to the provision of services. The relevant section is s 19 which states that: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 6 I assume that both Mr Khan and his son are alleging that by suspending them and terminating their membership, the Radio Station was refusing to provide them with a "service". Approach to determining whether to grant leave 7 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [18], the Tribunal set out the approach to be taken to applications for leave under s 96 of the ADA: 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. 8 In his submissions to the Tribunal, Mr Khan said that the President's decision to decline the complaints was wrong and expressed his "disgust, distress, disagreement, anger and displeasure" about the way in which the Anti-Discrimination Board handled his complaints. While the President's decision to decline the complaints is a relevant matter for the Tribunal to consider, the Tribunal's role is not to assess the adequacy or objectivity of the President's decision. The Tribunal's role when determining whether or not to grant leave was discussed in Xu v Sydney West Area Health Service [2006] NSWADT 3 at [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. 9 Consequently the Tribunal must focus on the merits of Mr Khan's complaint and the complaint of his son and decide whether, despite the fact that the President has declined them as lacking in substance, there is a substantial reason for allowing the complaints to proceed. If this matter goes to a hearing, the Tribunal's inquiry is limited to the question of whether any of the Radio Station's conduct about which Mr Khan and his son complained, constitutes a breach of the ADA. Allegations of defamation, breach of contract and the like are not matters that this Tribunal can deal with. Elements of the complaints 10 Definition of services? Mr Khan and his son alleged that the Radio Station was in breach of s 19 of the ADA in that it refused to provide them with a service. Despite the absence of any submissions on this point, if this matter went to a hearing, it would be necessary to define the "services" in question in order to determine whether those services had been refused. (See IW v City of Perth (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.) 11 Does the Radio Station's alleged conduct amount to the refusal of a service? The complaints about termination of membership of the Radio Station are unlikely to be regarded by the Tribunal as the refusal of a service. One reason for that conclusion is that termination of membership is not mentioned in the inclusive definition of "services" in s 4 of the ADA. As there are no provisions in the ADA making termination of membership of an incorporated association unlawful, these allegations are highly unlikely to constitute a breach of the ADA and leave should be refused. In relation to the complaints about suspension, Mr Khan said that the Radio Station does not provide personal services to its members, but rather provides services to the members of the community who listen to the Radio Station. According to Mr Khan, the general public, not he or his son, are the main beneficiaries of the services provided by the Radio Station. Although these submissions were made in the context of s 57, not s 19, if the substance of the submission is correct, and the Radio Station was not providing Mr Khan or his son with any services, then the suspension decisions could not constitute a breach of s 19. In those circumstances the complaints about being suspended would have no reasonable prospect of success and leave should be refused. 12 If there was a refusal of a service, was it on the ground of race? Even if Mr Khan and his son were able to satisfy the Tribunal that the Radio Station was providing them with a service and that the suspension of their radio programs amounted to a refusal to provide that service, they would still need to establish that at least one of the reasons for the refusal of that service was their race. The basis for the President's decision to decline the complaints of race discrimination as lacking in substance was the lack of evidence that race was a reason for the suspension decisions. 13 Is the Radio Station a voluntary body? Assuming that Mr Khan and his son were able to satisfy the Tribunal that race was at least one of the reasons for the suspension decisions, there is a defence under s 57 in relation to voluntary bodies. If this matter went to hearing a preliminary question would arise as to whether the Radio Station was covered by the exception for voluntary bodies. Section 57 states that: (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 Act 1992 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. 14 In order to come within the exception in s 57, four elements need to be established. They are that: a) The Radio Station is not "established by an Act". b) The activities of the Radio Station are carried on otherwise than for profit. c) The Radio Station is not a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989, a friendly society registered under the Friendly Societies Act 1989, a building society or credit union registered under the Financial Institutions (NSW) Code, a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or a registered club. d) Mr Khan's complaints relate to the provision of benefits, facilities or services to members of the Radio Station. 15 Established by an Act? The Radio Station provided an unsigned document stating that is was a non-profit Association incorporated under the NSW Associations Incorporation Act 1984. Mr Khan appeared to accept that the Radio Station is an incorporated association under the Associations Incorporation Act 1984 and that the Radio Station was not "established by" that Act. However, he sought to draw an analogy between that Act and the legislation referred to in s 57(1), that is the Co-operatives Act 1992, the Friendly Societies Act 1989, the Financial Institutions (NSW) Code and the Co-operative Housing and Starr-Bowkett Societies Act 1998. We do not accept that analogy. The bodies registered under those Acts are specifically excluded from the operation of s 57. If the legislature had intended to exclude all incorporated associations from the protection of s 57, then it would have done so expressly. Incorporated and unincorporated associations are both capable of coming within the exemption in s 57. 16 Non-profit. The Radio Station's statement pointed to relevant sections of the Articles of Association including sections 35, 36, 42(1) and s 43. The Radio Station also attached the most recent copy of the financial statements as evidence of its non-profit status. The statement said that the Radio Station was a volunteer run organisation with no permanent employees. A part-time administrator is contracted via a labour hire firm to carry out office administration tasks. It is not registered for GST and receives funding from the federal government to provide ethnic broadcasts. The Radio Station also tendered a bundle of documents including the Certificate of Incorporation on Change of Name and a full copy of the Articles of Association. 17 Mr Khan objected to the admissibility of this statement and commented on the weakness of the Radio Station's other evidence. This Tribunal is not bound by the rules of evidence and, after questioning Mr Gardner who was representing the Radio Station, all the tendered material was admitted into evidence. It is not the Tribunal's role at this stage to determine whether or not the Radio Station is covered by the exception for voluntary bodies. All that is to be decided is whether or not Mr Khan should be granted leave to proceed. The strength of the Radio Station's evidence is one factor that is relevant to the Tribunal's determination. 18 In relation to the requirement that the activities of the Radio Station are to be carried on otherwise than for profit, Clause 35 of the Articles of Association, states that funds are to be derived from sources including entrance fees, annual subscriptions of members, donations, sponsorship and sale of airtime. Under Clause 36, those funds are to be used in pursuance of the objects of the association. Those objects are set out in Clause 43 and include "to provide an open access community broadcast facility for the Blacktown, Fairfield and Holroyd Local Council service areas" and "to be non-profit in nature". 19 Mr Khan relied on the Tribunal's decision in Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 at [37] – [109] in support of his submission that the Radio Station is not a voluntary body. In that case the Tribunal decided that the Hospital Contribution Fund of Australia Ltd (HCF) was not a voluntary body pursuant to s 57. The main reason for that decision was that, according to the Tribunal, s 57 was not intended to encompass a body such as HCF. Rather it was intended to cover bodies which "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 pursing a common interest" (at [108]). Mr Khan submitted that the Radio Station was akin to HCF in that it had over 200 members, that its objectives were extremely wide, that the general public is interested in its activities and that it enters into contracts with members and sponsors. Mr Khan said that in practice, the Radio Station's activities were carried on for profit and it was not a voluntary body. 20 Mr Khan also asserted that the Radio Station was a purely commercial venture that makes a profit. He pointed out that he and his son entered into a contract with the Radio Station to broadcast a radio program in return for the use of the broadcasting services and facilities. He said that the contracts were "absolutely commercial in nature" and therefore, "distinctively different" from the kinds of activities carried out by a voluntary body. 21 The decision in Strong's case is currently on appeal to the Appeal Panel. However, even if this relatively narrow definition of a voluntary body were accepted, it is likely that the Radio Station would fit within a body of that character. The fact that the Radio Station enters into contracts and collects money from Members who wish to broadcast a radio program, does not mean that their activities are being carried on for profit. Although the financial evidence provided suggests that the Radio Station generates a surplus, that is not the same thing as carrying on activities in order to make a profit. On the contrary, the body is a community radio station, established "to provide an open access community broadcast facility". It does not appear to be a commercial enterprise established for any profit making purpose. (See also Kennedy v Anti-Discrimination Commission of the Northern Territory, Supreme Court of the Northern Territory, LA1/05 (20417920), 23 September 2005, in which Martin AJ decided that the Local Court had not made an error of law when finding that the Top End Women's Legal Service did not carry out its objectives for the purpose of making a profit.) 22 Not a co-operative, friendly society etc. The Radio Station is not one of the kinds of bodies described in s 57(1)(a) – (e). Consequently it is not excluded from the protection of s 57 on that basis. 23 Relates to provision of benefits, services or facilities to members. The substantive part of s 57 is s 57(2) which states that: 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. 24 This provision is an exception to treatment that would otherwise be unlawful under the ADA. If Mr Khan and his son can establish that the Radio Station has refused to provide them with a service under s 19, then the Radio Station will not be liable if that service relates to the provision of benefits, facilities or services to them as members of the Radio Station. In my view, it is likely that if the suspension is the refusal of a service under s 19, then the service to Mr Khan and his son is the provision (or removal) of a benefit or facility to them as members of the Radio Station. In those circumstances, the Radio Station is likely to succeed if it relies on the exception in s 57. Conclusion 25 As the Tribunal said in Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [17] the Tribunal's 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. 26 I have decided not to grant leave for any of the complaints to proceed. Mr Khan's complaint of age discrimination does not involve any treatment of him. The decision to put someone else in his time slot was a result of that suspension, but it was not discrete treatment of Mr Khan that could constitute discrimination. The only potential relevance of this allegation is as evidence that one of the reasons the Radio Station suspended him, or refused to re-instate him, was his age. For that reason, leave is refused for Mr Khan to continue with the complaint of age discrimination in relation to the Radio Station's alleged conduct of re-allocating his old time slots to younger women. 27 In relation to the complaints about termination of membership, that treatment is does not come within the ordinary meaning of the refusal of a service in s 19. As there are no provisions in the ADA making it unlawful to terminate membership of an incorporated association on discriminatory grounds, these allegations are highly unlikely to constitute a breach of the ADA and leave should be refused. 28 Finally, in relation to the suspension decisions, there is some doubt as to whether those decisions constitute the refusal of service. In fact, Mr Khan and his son argued, albeit in a different context, that they did not. Even if those decisions do amount to the refusal of a service, neither Mr Khan nor his son has provided any direct evidence that one of the reasons for the suspensions was their race. If they could prove that the Radio Station refused to provide them with a service and that one of the reasons for that refusal was their race, it is likely that the Radio Station would be able to establish that it is a voluntary body and therefore not liable for any treatment involving the provision of benefits, facilities or services to members of that body. Orders File No 051100: leave is refused. File No 051102: leave is refused File No 051103: 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. 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