CITATION: X v Department of Human Services, NSW Community Services [2010] NSWADT 222 DIVISION: Equal Opportunity Division APPLICANT X PARTIES: RESPONDENT Department of Human Services, NSW Community Services FILE NUMBER: 101062 HEARING DATES: 10 August 2010 SUBMISSIONS CLOSED: 10 August 2010 EXTEMPORE DECISION DATE: 10 August 2010 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application of LEAVE for declined anti-discrimination complaint to proceed Anti-Discrimination Act 1977 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 CASES CITED: Jones v Ekermawi [2009] NSWCA 388 APPLICANT I Chatterjee REPRESENTATION: RESPONDENT J Selwood, solicitor ORDERS: Leave is refused. REASONS FOR DECISION EX-TEMPORE DECISION 1 This is an application by Ms X for leave for a complaint of disability discrimination to go ahead despite the fact that it was declined by the Anti-Discrimination Board. When a matter is declined by the Board as lacking in substance, section 96 of the Anti-Discrimination Act 1977 requires the Tribunal to give leave before such a complaint can proceed. The principles on which leave can be granted have been set out by the Supreme Court and the Court of Appeal in Jones v Ekermawi [2009] NSWCA 388. The effect of that decision is that the Tribunal has an open discretion to grant or not to grant leave for a complaint to proceed but in determining that question the Tribunal should be guided by what is fair and just in the circumstances. 2 In addition, the criteria in section 92 (1)(1)(a) of the Anti-Discrimination Act are relevant but not necessarily determinative of a leave application. The matters in that provision include grounds for declining a complaint because it is frivolous, vexatious, lacking in substance or does not disclose a contravention. It is important to note that the onus is on the applicant to persuade the Tribunal that leave should be granted. 3 The background to this complaint is that Ms X is the birth mother of a child who is currently 14 years old. Both Ms X and her son are HIV positive and have Hepatitis C. In 2005 the Children's Court made an order granting custody of Ms X's son to the Minister of Human Services. Since that time Ms X's son has been living with his birth father's sister and her husband. Ms X complains that the Department has discriminated against her on the ground of her disability in relation to the services it has provided to her. In the complaint to the Anti-Discrimination Board the conduct about which Ms X complains is set out. The period of the complaint is from June 2008 to June 2009. 4 The relevant provision is s 49M of the Anti-Discrimination Act: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 5 The definition of direct discrimination is in s 49B(1) is as follows: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, 6 In order to prove a complaint of discrimination Ms X would have to prove several matters. Firstly, she would have to identify the service that the Department is providing to her and set out the ways in which that service has been refused or provided on less favourable terms. Secondly, she would have to establish that the Department has treated her less favourably than it would have treated a person who did not have HIV or Hepatitis C in the same or similar circumstances. Thirdly, Ms X would have to prove that at least one of the reasons for that treatment was her disability. 7 For the purpose of these proceedings, I accept that the Department provides services to birth parents of children in out-of-home care. Those services constitute, at least, maintaining the existing relationship that the child has with their birth parents taking into account the wishes of the child. That much can be gleaned from the provisions of the Children and Young Persons Care and Protection Act 1998 and from the policies of the Department. Of course, the overriding consideration whenever dealing with or making decisions in relation to children in out-of-home care is that the safety, welfare and well-being of the child or young person are paramount. Any service being provided is subject to that overriding consideration. 8 I also accept, for the purposes of these proceedings, that services provided by the Department would extend to seeking views of birth parents and involving birth parents in decision making about their child. The question then is the extent to which the Department's treatment of Ms X is less favourable than the treatment that was or would be afforded to a person who does not have HIV or Hepatitis C. A possible comparator is the child's biological father. There was some dispute about whether or not contact with the biological father is supervised or unsupervised. The evidence of the Departmental officer was that contact is supervised as is contact with Ms X, however Mr Chatterjee, on behalf of Ms X, was aware of information which suggested that unsupervised contact with the father may have been permitted. That is a matter which would have to be determined if the matter went to a hearing. However, it does not prevent me from deciding whether or not leave should be granted. 9 The conduct, about which Ms X complains, during the relevant period, can be summarised in the following terms; 1.failure to allow Ms X to participate in a case management meeting in March 2009; 2. continuing to require supervision for all face to face and telephone contact; 3. the infrequency of contact; 4. failure to facilitate transferring gifts, in particular a scooter that was bought as a Christmas present; 5. lack of information being provided in relation to the child's well being; 6. inadequate reasons being provided for decisions made in relation to the child. 10 Turning briefly to each of those matters, the first allegation is that at a case conference held on 11 March 2009 Ms X was initially invited to attend but a couple of weeks before the conference was advised that she could not attend but that she could participate by tabling items prior to the case conference. According to the Department, the reason for the change was that the child expressed the view that he wanted to attend to the case conference but would not attend if his mother was there. The Department says that Ms X was provided with the minutes of the conference on 15 May 2009 which included responses to questions that she had prepared. 11 The second matter is that any contact between Ms X and her child be supervised. That has been the case ever since the child was placed in out-of-home care. The Department's evidence is that supervision is supported by expert evidence from psychologists and also is in accordance with the child's wishes. Mr Chatterjee, on behalf of the applicant, disputes the need for supervision and the reasons for which the Department says supervision is necessary. There is evidence of a psychologist's report during the relevant period from Romina Palavicino dated 29 August 2008 in which it is said: "I would recommend (the child's) contact with his mother continues to be supervised at all times. The reasons for this recommendation include Ms "X's" tendency to ask questions of (the child) in an interrogative style, make inappropriate comments in the presence of (the child), generally irritable manner and tendency to engage in verbal arguments and (the child's) continued anxious presentation around his mother." 12 Mr Chatterjee submits that this opinion is based on information provided to psychologist which Ms X disputes. 13 The fourth matter relates to the purchase of a scooter for the child at Christmas 2008. There is a factual dispute between the parties as to whether the Department facilitated arrangements for the scooter to be transferred to Sydney. That matter remains unresolved but does not affect the decision that I have made. 14 The fifth matter is an allegation that the Department has not provided information about the child's well being to Ms X. That is a matter which is disputed by the Department and the Department has cited examples where information has been provided, however, again there is some factual dispute around that issues. 15 The sixth matter is similar to the fifth and that is, the lack of reasons for various departmental decisions. Again, the Department has pointed to reasons provided for decision making. Mr Chatterjee, on behalf of Ms X rejects the legitimacy of those reasons. 16 While not exhaustive, those matters give a flavour of the kinds of conduct about which Ms X complains. In order to prove that conduct of this kind constitutes discrimination, Ms X would have to identify a real or hypothetical comparator. There was some suggestion that a real comparator would be the child's biological father however, there is a dispute about whether or not there has been a contact with the biological father which was unsupervised. If there had been such contact, it is arguable that Ms X and the biological father and not in the same circumstances, or in circumstances which are not materially different. 17 The real crux of this matter is whether, if this matter went to hearing, Ms X would be able to prove that at least one of the reasons for the Department's conduct is her HIV and/or Hep C status. Mr Chatterjee agreed that there was no direct evidence that this was the case, however that is not an unusual situation. It is common for the Tribunal to be asked to draw an inference from facts as found as to whether the disability is one of the real or genuine reasons for the conduct. Such an inference needs to be available on the evidence. I appreciate that Ms X has not had the opportunity to cross-examine Departmental officers nor to summons documents from the Department which it may be thought could shed some light on that issue. Notwithstanding, those matters in my view there is very little, if any, possibility that Ms X would be able to satisfy a Tribunal that her HIV status and/or Hep C status was even one of the reasons for the Department's conduct. 18 The basis on which Mr Chatterjee put his argument was that given that the Children's Court had made a recommendation that "as much contact as is possible be allocated to the mother" (both face to face and by phone) and that the case plan accompanying the application to the Children's Court recommended contact, there can be no other reason for the Department's conduct than Ms "X's" HIV and Hep C status. Another matter which Mr Chatterjee put forward as the basis for an inference was his speculation that case workers may stereotype women with HIV as being sex workers and drug users. Although Mr Chatterjee did not have the Children's Court decision with him, his recollection was that it was alleged that Ms X engaged in those activities and that was one of the reasons for the Children's Court order. 19 The Tribunal must weigh up and consider whether, on the one hand, an applicant should be given an opportunity to engage in a hearing before this Tribunal in the hope that documents will be produced or concessions made in cross-examination which would be able to prove their case. On the other hand I must take into account the prejudice to the respondent in being asked to defend a matter which, at least on its face, lacks merit. While these matters are difficult, in this case I am satisfied, having read the material and listened to the submissions of each party, that the complaint lacks substance because it is extremely unlikely in my view, that she will be able to establish any connection between the respondent's conduct and her disability. 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.