CITATION: Dungay v Mid North Coast Regional Council for Social Development [2008] NSWADT 353 DIVISION: Equal Opportunity Division APPLICANT James Dungay PARTIES: RESPONDENT Mid North Coast Regional Council for Social Development FILE NUMBER: 081122 HEARING DATES: 16 December 2008 SUBMISSIONS CLOSED: 16 December 2008 DATE OF DECISION: 16 December 2008 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Race discrimination in the provision of services LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Xu v Sydney West Area Health Service [2006] NSWADT 3 CASES CITED: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Purvis v New South Wales (2003) 217 CLR 92 APPLICANT In person REPRESENTATION: RESPONDENT J Gill, agent ORDERS: Leave is refused. REASONS FOR DECISION Introduction 1 Mr Dungay is an Aboriginal elder who is involved with the Kempsey Goori Indigenous People's Church (the People's Church). On 15 April 2008 Mr Dungay lodged a complaint of race discrimination against the Mid North Coast Regional Council for Social Development (the Council) with the Anti-Discrimination Board (ADB). His complaint was that the Council had refused him permission to hold church services in the Kempsey Family Community Centre on Sundays. The People's Church had been holding services in the grounds of the Community Centre until about 3 years ago. Ms Mavis Symonds, on behalf of the Council, refused Mr Dungay's request on several grounds including "insurance and public liability for after hours programs and the Council's inability to promote or enhance any organization's religious or political beliefs." 2 The ADB declined the complaint as lacking in substance. Ms Dungay requested that the complaint be referred to the Tribunal. The complaint cannot go ahead unless the Tribunal gives permission (or leave) for it to proceed: Anti-Discrimination Act 1977 (AD Act), section 96. 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]: 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 a summary, the relevant principles are: (a) if the complaint has been declined as lacking in substance the Tribunal may consider all relevant material and ask whether (i) there is a serious question of fact to be determined (ii) there is a serious question of credit involved; and/or (iii) there is a factual issue that is likely to be affected by evidence in the respondent's possession; (b) on the material available, the claim lacks merit so that it is not in the public interest to permit it to proceed (c) the applicant is able to show a substantial reason for leave being granted which generally includes that the applicant has reasonable prospects of success. Evidence 5 Mr Terry Wilson, the then Manager of the Council, wrote to the ADB saying that he had declined access to the Community Centre to other religious leaders and organisations including Father Paul, a non-Aboriginal Catholic Priest, and Pastor George Quinlan who was involved with the Seventh Day Adventist Bible Study Group. Ms Gill, the current manager, gave evidence that the facilities managed by the Council are currently being used for various purposes including as a medical centre and by boys' and girls' groups. She said most of the people using the facilities are indigenous clients. 6 According to Mr Dungay, the People's Church was using the Community Centre for approximately 3 years but has not been permitted to use that facility for the past 3 years or so. Mr Dungay said that the Council has not produced written proof that the Seventh Day Adventist Church or the Catholic Church has been refused permission to use the Community Centre. Legislative framework 7 In order to substantiate his complaint, Mr Dungay would have to satisfy the Tribunal that the Council had refused him services on the ground of race: AD Act, section 19, section 7. 8 Section 19 provides 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. 9 "Services" are defined in section 4 (f) to include "services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not." 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. 11 Race is defined in section 4. I accept, for the purpose of these proceedings, that: (a) Mr Dungay is a person of Aboriginal descent and that his race comes within the definition of race in section 4; and (b) the Council refused to provide Mr Dungay with a service, namely the use of the Community Centre. 12 The remaining issue a Tribunal hearing this matter would have to decide is whether the refusal of the service comes within the definition of "direct" discrimination as defined in section 7(1)(a). Direct race discrimination 13 Two elements. Direct race discrimination has two elements: differential treatment and causation. Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the treatment afforded to Mr Dungay with the treatment that was or would have been afforded to a person not of Mr Dungay's race in the same or similar circumstances. If there is no actual comparator, the comparison must be made in relation to a hypothetical person: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. If the comparison produces the conclusion that Mr Dungay was treated objectively less favourably than the hypothetical comparator, it is then necessary to consider the reasons for that different treatment, that is, causation. 14 In Purvis v New South Wales (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that the central question when determining causation: . . . will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 15 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. The effect of section 4A is that an act will be done "on the ground of" race as long as at least one of the reasons for the act was race even if it was not the dominant or a substantial reason for doing the act. 16 21 Differential treatment. Mr Dungay has not identified an actual comparator that is a person who was treated less favourably than he was treated in the same or similar circumstances. There are two people whose treatment may be comparable with Mr Dungay's treatment - Father Paul and Pastor Quinlan. There is evidence that both these people are non-Aboriginal and that both were refused the same service requested by Mr Dungay. It is true that the Council has not produced any further evidence corroborating Mr Wilson's version of events, but the onus is on Mr Dungay to substantiate his complaint, not on the Council to disprove his allegations. The lack of corroborating evidence means that there is a question of fact to be determined and that it is likely to be affected by evidence in the Council's possession. Nevertheless, that is not a sufficient reason for granting leave. In this case the Council's version of events is consistent with its stated policy not to favour any particular religious or political group and with the fact that no religious groups are currently using the Community Centre. Even if Father Paul and Pastor Quinlan had not expressly been refused permission to use the Community Centre, there is insufficient evidence for Mr Dungay to substantiate his complaint. 17 Causation. The only evidence Mr Dungay could point to which was relevant to the question of causation was that the People's Church had previously been given permission to use the Centre but that, for the past 3 years, that permission had not been given. That situation, by itself, does not enable an inference to be drawn that one of the grounds of refusal was Mr Dungay's race. The evidence, which is not in dispute, points away from that conclusion. That evidence is that the Community Centre is currently being used mainly by indigenous groups, the Council has a policy of not favouring any religious or political group over another and no church services are being held at the Community Centre at the moment. 18 During the hearing Mr Dungay alleged that Ms Symonds accused him of child abuse, vilified him and made personal attacks on him. Mr Dungay made the point in his complaint to the ADB that "all my character checks and colleagues who work with me, are cleared." I am not sure why Mr Dungay raised these matters but even if they are true, they do not assist him to prove that the Council has discriminated against him on the ground of race. 19 While some of the Council's evidence has not been corroborated, the undisputed evidence is highly unlikely to give rise to an inference that Mr Dungay's race was one of the reasons the Council refused him permission to use the Community Centre. His complaint lacks merit and it should not proceed. Order 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.