Araiji v Mihailuk [2011] NSWADT 282

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Araiji v Mihailuk [2011] NSWADT 282 Hearing dates: 8 November 2011 Decision date: 08 November 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of racial vilification to proceed is refused. Catchwords: LEAVE - complaint of racial vilification declined as lacking in substance - whether fair and just for it to proceed - complaint does not reach threshold required for vilification complaints Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Veloskey v Karagiannakis [2002] NSWADTAP 18 Burns v Radio 2UE Pty Ltd & Ors [2004] NSWADT 267 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Harou-Sourdon v TCN Channel Nine Ltd (1994) (EOC) 92-604 Category: Interlocutory applications Parties: Helen Araiji (Applicant) Tania Mihailuk (Respondent) _ Representation: Counsel S Stanton (Respondent) H Araiji (Applicant in person) File Number(s): 111100

REasons for decision

Introduction 1Ms Araiji complained that the State Member for Bankstown, Tania Mihailuk, racially vilified her in a verbal exchange just prior to the New South Wales election in March 2011. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. Ms Araiji requested that the complaint be referred to the Tribunal. 2Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, cannot proceed unless the Tribunal gives its permission or 'leave'. The issue is whether leave should be granted for Mr Araiji's complaint to go ahead 3In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. 4When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.