Kilkeary v Anti-Discrimination Board of New South Wales [2018] NSWCATAD 27

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kilkeary v Anti-Discrimination Board of New South Wales [2018] NSWCATAD 27 Hearing dates: 24 January 2018 Date of orders: 29 January 2018 Decision date: 29 January 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The application is dismissed. Catchwords: PRACTICE AND PROCEDURE – summary dismissal application – where applicant complained that Anti-Discrimination Board had not provided "reasonable accommodation" when investigating a complaint of discrimination – where applicant did not allege a breach of the Anti-Discrimination Act 1977 (NSW) – whether complaint discloses a contravention of the Anti-Discrimination Act 1977 Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 49M, s 87A, s 72, s 102, Pt 9, Divs 1-6 Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(c) Cases Cited: State of New South Wales v Whiteoak [2014] NSWCATAP 99 Category: Procedural and other rulings Parties: Stephen Kilkeary (Applicant) Anti-Discrimination Board NSW (Respondent) Representation: Applicant (no appearance)

Solicitors: Crown Solicitors Office (Respondent) File Number(s): 2017/00087013 Publication restriction: Nil

REASONS FOR DECISION 1. Mr Kilkeary complained that the Anti-Discrimination Board (ADB) failed to provide him with "reasonable accommodations" when making decisions about discrimination complaints he had made. Mr Kilkeary says he has severe depression and that the ADB imposed arbitrary time limits for him to provide additional information about his complaints and terminated his complaints when he was seriously unwell. Mr Kilkeary understood that the Anti-Discrimination Act 1977 (NSW) does not require the ADB to accommodate his disability when investigating or making decision about his discrimination complaints. But he said that the ADB has an obligation to do so under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). 2. After the President of the ADB referred Mr Kilkeary's complaint against the ADB to the Tribunal, Mr Kilkeary again expressed the view that the Tribunal does not have jurisdiction to determine that complaint. Despite that view, Mr Kilkeary submitted that Australia's ratification of the CRPD means the ADB must accommodate his disability. 3. The ADB applied for the complaint to be dismissed either because it does not disclose a contravention of the Anti-Discrimination Act, or because Mr Kilkeary has not actively pursued the complaint. 4. Neither the ADB, nor the Tribunal, has power to hear an application under the CRPD or provide a remedy for a breach of the CRPD. Mr Kilkeary may only complain to the President of the ADB about an alleged breach of the Anti-Discrimination Act: Anti-Discrimination Act, s 87A. 5. Mr Kilkeary did not complain about a breach of the Anti-Discrimination Act. It follows that his complaint does not disclose a contravention of that Act. The complaint is dismissed for that reason: Anti-Discrimination Act, s 102 and s 92(1)(a)(ii). 6. If Mr Kilkeary had obtained legal advice, he may have identified s 49M of the Anti-Discrimination Act as a provision which the ADB had allegedly breached. That provision makes it unlawful for a person who provides services to discriminate against another person on the ground of disability: 49M Provision of goods and services (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. … 1. Even if Mr Kilkeary had identified s 49M and alleged that the ADB had breached that provision, I would probably have declined his complaint as lacking in substance. There are two main reasons for that conclusion. First, Mr Kilkeary named the Anti-Discrimination Board as the respondent. The ADB is not a "person who provides services" to Mr Kilkeary. It is a statutory body comprising five members, including the President, appointed by the Governor: Anti-Discrimination Act, s 72. It is the President of the ADB, or her delegate, who makes decisions about complaints lodged with her: Anti-Discrimination Act, Part 9, Div 1-6. 2. Secondly, it is doubtful whether decisions by the President of the ADB made in accordance with the powers in Part 9 of that Act, constitute the provision of services. Services provided by a "public authority" come within the meaning of "services" in 49M of the Anti-Discrimination Act and the ADB is a public authority: Anti-Discrimination Act, s 4. But when addressing this issue in general terms, the Appeal Panel came to the following conclusion: … [I]f a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances: State of New South Wales v Whiteoak [2014] NSWCATAP 99 (4 December 2014) at [158]. 1. It is arguable that because the President of the ADB made the decisions about which Mr Kilkeary complains under statutory powers, she was not providing him with a "service". I do not need to determine this issue conclusively because Mr Kilkeary did not allege that any conduct of the ADB breached the Anti-Discrimination Act. 2. I note that despite being directed to do so, Mr Kilkeary did not lodge or serve a response to the application for his complaint to be dismissed. He told the Tribunal in an email dated 12 December 2017 that he did not intend to make any further submissions but was relying on the written submissions he had already provided. He did not attend the hearing on 24 January 2018. Even if I had not been persuaded to dismiss the complaint because it fails to disclose a contravention of the Anti-Discrimination Act, I would have dismissed it because he failed to appear at the hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(c).