Ermel v State of NSW (Department of Family & Community Services) [2013] NSWADT 31

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Ermel v State of NSW (Department of Family & Community Services) [2013] NSWADT 31 Hearing dates: 29 January 2013 Decision date: 07 February 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: The application for leave to proceed is refused. Catchwords: DISCRIMINATION - leave to proceed required - whether fair and just for complaint to proceed - special measure provision relating to Aboriginal succession of parent's tenancy Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Interlocutory applications Parties: Sonja Ermel (Applicant) State of NSW (Department of Housing and Community Services) (Respondent) Representation: Counsel S Gardiner (Respondent) S Ermel (Applicant in person) File Number(s): 121124

REASONS FOR DECISION

Introduction 1Ms Ermel, an Aboriginal woman, wants to take over her late mother's tenancy and then buy the property from Housing NSW. Housing NSW refused her application because her case did not come within the Aboriginal Succession of Tenancy policy. Ms Ermel complained of race discrimination but the President of the Anti-Discrimination Board declined the complaint. It is not fair or just for Ms Ermel's complaint to go ahead because Housing NSW has not breached the Anti-Discrimination Act 1977. 2Even if an Aboriginal person is not living in the household when their parent dies, that person may take over the tenancy. A non-Aboriginal person must be part of the household to take over the tenancy. In both cases, the applicant must be eligible for public housing. The direct race discrimination provisions in the Anti-Discrimination Act 1977 oblige Housing NSW to treat Aboriginal people in the same way as they treat non-Aboriginal people. Those kinds of provisions give Aboriginal people formal, rather than substantive, equality. The Aboriginal Succession of Tenancy policy is a 'special measure' which discriminates in favour of Aboriginal people with the intention of delivering substantive equality.