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. Test for granting permission for the complaint to go ahead 3The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". The Tribunal must give permission or 'leave' before the complaint can go ahead. Ms Ermel has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. When assessed against the direct discrimination provisions of the Anti-Discrimination Act 1977, the complaint does not disclose a contravention of that Act. The policy and its application to Ms Ermel 4The Aboriginal Succession of Tenancy policy states that: Housing NSW may approve succession if the applicant is an Aboriginal client who was not a member of the tenant's household at the end of their tenancy. Housing NSW will consider this if the applicant is the tenant's child or the tenant was active in their upbringing, they have grown up in the dwelling and have a long-term association with the dwelling and the area. Applicants must meet all other eligibility requirements for public housing. Where Housing NSW proposes to decline an application for succession, it may ask the Aboriginal Housing Office to comment on this proposal. This is consistent with our aim to make culturally appropriate decisions concerning Aboriginal people. 5Generally speaking, to be eligible for public housing, a person must not own another property. That rule can be relaxed if, for example, the person is escaping domestic violence, serious harassment or threats of violence. Ms Ermel said that her neighbours were harassing her. 6Following an initial refusal and an unsuccessful internal appeal, Ms Ermel appealed to the Housing Appeals Committee (HAC). The HAC agreed with Housing NSW's decision that Ms Ermel should not be allowed to take over her late mother's tenancy. The HAC found, on the basis of her income and her ownership of a property worth approximately $619,000, that she did not meet the financial eligibility requirements for public housing. Despite the harassment from her neighbours, HAC concluded that there was nothing to stop Ms Ermel from selling the property and purchasing another property in which to live. 7Ms Ermel complains both about Housing NSW's processes and its decision. Those complaints included that Housing NSW: (1)did not comply with their own policy of consulting the Aboriginal Housing Office before refusing her application; (2)kept insisting that she was not a member of her mother's household when that is not a requirement for Aboriginal applicants; and (3)wrongly assumed that she owned two properties instead of one and that her income was higher than it really was. 8According to Ms Ermel, by recording this false information, Housing NSW made sure that her application could not possibly succeed. She said HAC was also influenced by the Departmental documents recording that she owned two properties, even though that matter was not mentioned in its decision. Legislative provision 9Ms Ermel is alleging that Housing NSW has breached both s 19(a) and (b) of the AD Act: 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. 10I understand that Ms Ermel is complaining of 'direct' race discrimination as defined in s 7(1)(a): (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 Do the allegations disclose a contravention of the AD Act? 11There is no dispute that Ms Ermel is Aboriginal. I have also assumed, for the purposes of these proceedings, that in the process of considering her application and determining it, Housing NSW refused to provide her with a service or provided her with a service on unfavourable terms. The remaining questions are whether: (1)Housing NSW treated her less favourably than it treated or would have treated a non-Aboriginal person in the same or similar circumstances; (differential treatment) and (2)at least one of the reasons for that treatment was Ms Ermel's race, even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A (causation). 12The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. An application by a non-Aboriginal person would have been refused on the basis that he or she was not part of the household. In those circumstances, the complaint cannot succeed. 13Even if Ms Ermel could establish the 'differential treatment' element of indirect discrimination, she would also have to prove that the treatment was "on the ground of" her race. Courts have interpreted that phrase to mean whether at least one of the "real", "genuine " or "true" reasons for the treatment was the person's race: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 163. The refusal to allow Ms Ermel to take over the tenancy was not based on her Aboriginality, it was based on her ineligibility for public housing. 14To comply with the obligation of formal equality in the direct discrimination provisions of the AD Act, Housing NSW could treat Aboriginal and non-Aboriginal people in the same way. Instead, Housing NSW has a more generous policy for determining whether Aboriginal people should succeed to the tenancy of their parent. The Aboriginal Succession of Tenancy policy is a 'special measure' which discriminates in favour of Aboriginal people. A non-Aboriginal person cannot complain about that more generous policy: AD Act, s 21. 15Ms Ermel feels that Housing NSW has not treated her in a fair and culturally sensitive manner. She is aggrieved because they recorded incorrect information about her income and assets and denied her the opportunity to purchase the home in which her mother had lived. Regardless of how unfairly she feels she has been treated, none of her grievances entitle her to a remedy under the AD Act. Order The application for leave to proceed 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. Decision last updated: 07 February 2013