Alchin v Rail Corporation NSW
[2012] NSWADT 142
•23 July 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Alchin v Rail Corporation NSW [2012] NSWADT 142 Hearing dates: 19 June 2012 Decision date: 23 July 2012 Jurisdiction: Equal Opportunity Division Before: R J Wright SC - Judicial Member Decision: The Tribunal:
1. orders that the words "race, and/or" should be struck out of paragraph 6 of the Points of Claim;
2. orders that those parts of the complaint which are claims of:
(i) racial vilification;
(ii) discrimination against Mr Alchin on the ground that he is or his relatives are Muslim,
be dismissed under s 102 of the Anti-Discrimination Act 1977 (NSW) ("ADA");
3. directs that the Applicant file and serve on the Respondent on or before 3 August 2012 a document identifying clearly what facts, matters and circumstances are alleged to constitute:
(i) each instance of discrimination under s 8(2)(a), (b) or (c) of the ADA upon which the Applicant relies; and
(ii) the basis for a finding that each instance referred to in (i) amounted to discrimination '"on the ground of race" within the meaning s 7(1) and of the ADA;
(iii) each instance of detriment alleged to constitute victimisation under s 50 of the ADA upon which the Applicant relies; and
(iv) the basis for a finding that each instance referred to in (iii) was on one of the grounds set out in s 50(1) of the ADA;
4. Otherwise, orders that the Respondent's interlocutory application made by letter dated 30 March 2012 be dismissed.
5. The application is listed for further case conference on 22 August 2012 at 3pm.
Catchwords: Discrimination - Discrimination in Employment - Discrimination on the Ground of Race - Racial Vilification - Victimisation - Summary Dismissal Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW)Cases Cited: Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36
Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4
Stanborough v Woolworths Ltd [2005] NSWADT 203
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Margan v University of Technology, Sydney [2003] NSWADTAP 65
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59
McDonald v Central Coast Community Legal Centre [2008] NSWADT 96
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131
Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89
Kunhi v University of New England [2008] NSWADT 333
Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334
Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145
Ekermawi v Harbour Radio Pty Ltd (No 2) [2010] NSWADT 198
Barry v Futter [2011] NSWADT 205
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128Category: Interlocutory applications Parties: Edward John Alchin (Applicant)
Rail Corporation of New South WalesRepresentation: Counsel
R de Meyrick (Applicant)
K Eastman (Respondent)
Brazel Moore (Applicant)
Henry Davis York (Respondent)
File Number(s): 111048
REASONS FOR DECISION
EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member): The Tribunal has before it an application by the Respondent that a number of claims in the Applicant's complaint in this proceeding be dismissed under s 102 of the Anti-Discrimination Act 1977 ("the ADA") and s 73(5) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act").
Background
From August 2007, the Applicant, Mr Alchin, was employed by the Respondent, Rail Corporation of New South Wales (also known as RailCorp), at the Respondent's Hornsby Civil depot. Mr Alchin's duties included track maintenance, track patrol, certifying rail traffic and protecting work sites. He ultimately reported to John Gooch who was the Manager of the Hornsby Civil depot but his direct supervisor was the Team Leader on his shift which varied from time to time but who included Mark Wilson and Brian Redding.
From the material before the Tribunal it appears that Mr Alchin was certified by his General Practitioner as being unfit for work because of anxiety and depression from 15 March 2010. As at early July 2010, he was seeing a Psychiatrist Dr David Butler for his condition. It is not clear whether Mr Alchin has returned to work with the Respondent since that time.
Mr Alchin described himself as "white caucasian Australian by race" and he said that "[his] wife is asian and ... [his] children are of mixed asian race". Mr Alchin's wife was described as being of Indonesian background in his Points of Claim. Mr Alchin and his family are also Muslims.
Mr Alchin lodged a complaint under the ADA with the Anti-Discrimination Board ("the Board") under cover of a letter dated 5 July 2010 together with an unsigned statement taken as part of his WorkCover claim. This documentation was received by the Board on 12 July 2010. The incidents which formed the basis of Mr Alchin's complaint generally arose during the period from about mid 2009 to March 2010 while he was employed with the Respondent. They may be summarised for present purposes as follows:
(a) He was subjected to conduct such as: grease being put under his car door handle (date not specified but it was later said by Mr Alchin to have occurred in 2008); items of clothing and other personal items being hidden around the work place in plastic bags (after 20 January 2010); the keyhole of his work locker being packed with cardboard (20 January 2010); and, a football being thrown at the windscreen of his car while he was driving and while it was parked (12 and 13 March 2010);
(b) Other employees of the Respondent at Hornsby Civil depot (Toby Chalmers, Ben Ward, Mark Bartley and Brian Redding) constantly made comments in Mr Alchin's presence referring to Asian people as "gooks" and "slopeheads" and also said that Asian people should be "f**king killed" and should be gotten "rid of ... from our country";
(c) Ben Ward also said in Mr Alchin's presence "All these Muslim c**ts should be f**king killed off in our country" and another employee said to Mr Alchin said that he was not Australian and that Muslims were not Australian;
(d) Toby Chalmers made up rumours and called Mr Alchin "a dirty old paedophile, useless old c**t, ugly old paedophile", suggested that he "groomed children or interfered with young children" and called him "an ugly old c**t, senile old c**t, senile dirty old paedophile" and an unknown person put a sign on the noticeboard suggesting the Mr Alchin had AIDS;
(e) Ben Ward in the presence of Mark Bartley and Rob McTere said that "if I lose my job over this I'll burn his house down with him and his f**king gook family in it";
(f) Although he complained to management about these incidents, his perception was that management did not take his complaints seriously, did nothing effective to address them and he was told that CCTV footage which might have identified the culprits was unclear or not available. In addition, there are suggestions that Mr Alchin was denied his fair share of night shift work.
In addition, Mr Alchin apparently made a written complaint to the Manager, Civil Maintenance, of the Respondent on about 17 March 2010 concerning this conduct and this was investigated by the Human Resources department of the Respondent ("HR"). He also says that he has lodged a workers' compensation claim in respect of "psychological injuries caused in the workplace by bullying, harassment, victimisation, and racial and religious vilification". Mr Alchin's covering letter to the complaint form lodged with the Board contained the observation that since making that complaint and the workers' compensation claim, there had been a "continuation of this victimisation and bullying" and the same employees had said: "'He deserved this.' 'He brought it upon himself.' 'He is a bludger.' 'He was planning a compensation claim against RailCorp.' 'He was beeping the truck horn at young school girls.'" Mr Alchin also stated in his complaint form that he felt there had been a "cover up".
On 4 August 2010, the Board wrote to the CEO of the Respondent notifying them that a decision had been made to accept the allegations which fall within the period 12 July 2009 to 11 July 2010 for investigation by the Board and seeking the RailCorp's response to Mr Alchin's complaint.
The RailCorp responded by letter dated 24 September 2010. In that response, the Respondent noted that the complaints had been investigated by HR which had delivered its report on 13 July 2010. Some but not all of the allegations were said to have been admitted or were apparently found to have been substantiated and a number of recommendations had been made. In summary, the Respondent denied that there was any evidence that any conduct complained of "occurred on the basis of his race", argued that there was no "public act" that could constitute vilification with the requisite incitement and submitted that Mr Alchin had not been treated less favourably than others. Thus, it was said that the complaint should be dismissed.
By letter of 15 October 2010, Mr Alchin responded in some detail to the matters raised by the Respondent. In particular, he attributed some of the conduct to his religion (see paragraph 26) and clarified his racial discrimination case. At paragraph 16 of his letter he wrote:
I have not made any complaint that is related to MY RACE I am white caucasian Australian by race and the complaint is that I was discriminated against because the constant offensive racial comments I had to endure from these people aimed directly at me knowing it was offensive to me as half my family are asian and that my wife is asian and that my children are of mixed asian race and the lack of action taken by management when I complained. I was discriminated against because the managers found nothing wrong with this type of behaviour and treated me as if I had done something wrong in complaining as did staff participating in this behaviour. I was discriminated against racially due to the race of my partner, my extended family and my children.
The Board unsuccessfully attempted to settle the matter in writing and on 4 May 2011 Mr Alchin's solicitors requested that the matter be referred to the Equal Opportunity Division of the Tribunal. The Board formed the view that this matter could not be conciliated.
As a result, by letter dated 20 May 20111 the President of the Board referred the complaint to the Tribunal under s 93C(a) of the ADA. That letter and the President's Report were filed in the Tribunal on 23 May 2011. In the "President's Summary of Complaint" the type of complaint was identified as "Race", the sections allegedly breached were said to be ss 7 and 8 of the ADA and the liability was identified as "Vicarious" (which is presumably intended to be a reference to liability under s 53 of the ADA). The period of the complaint was stated to be 12 July 2009 to 11 July 2010.
In accordance with directions made by the Tribunal on 15 February 2012, Mr Alchin's solicitors filed on 5 March 2012 Points of Claim and a supplementary statement by Mr Alchin which added some further information concerning his complaint. The Points of Claim relied upon essentially the same conduct as had been identified in Mr Alchin's complaint to the Board and identified the material sections of the ADA as being ss 8, 20C, 50 and 53. The references to ss 20C and 50 indicate that Mr Alchin intends to rely not only on racial discrimination under ss 7 and 8 but also racial vilification under s 20C and victimisation under s 50 of the ADA.
Application under s 102 and s 73(5)
By letter dated 20 March 2012, the Respondent has applied under s 102 of the ADA and s 73(5) of the ADT Act to have parts of Mr Alchin's complaint dismissed. The particular parts of the complaint which the Respondent seeks to have dismissed were identified at the beginning of the Respondent's letter as follows:
"1. The complaint of racial vilification pursuant to s 20C;
2. the complaint of discrimination on the grounds of race pursuant to s 8; and
3. the complaint of bullying and harassment."
Later on in that letter, however, the Respondent also sought to have the claim based on victimisation under s 50 dismissed as well. These four matters were all pressed at the hearing of the application for dismissal which took place on 19 June 2012.
Accordingly, there are four parts of Mr Alchin's complaint which are attacked by the Respondent:
(a) the racial vilification claim under s 20C of the ADA;
(b) the racial discrimination claim under s 8 of the ADA;
(c) the bullying and harassment claim; and
(d) the victimisation claim under s 50 of the ADA.
Before doing so, however, the Tribunal should address the nature of an application under s 102 of the ADA and s 73(5)(g) of the ADT Act.
Nature of an Application under s 102 or s 73(5)
Section 102 of the ADA provides:
"The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b)."
The grounds on which the President of the Board may dismiss a complaint under s 92(1)(a) and (b) are set out in that section as follows:
"(1) If at any stage of the President's investigation of a complaint:
(a) the President is satisfied that:
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
...
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint."
Similarly, s 73(5)(g) of the ADT Act provides:
"(5) The Tribunal:
...
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
...
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ..."
Accordingly, in a matter arising under the ADA before the Tribunal, the power under s 73(5)(g) of the ADT Act overlaps with the Tribunal's power to dismiss under s 102 of the ADA. In the present context, given the similarity in wording between s 73(5)(g)(ii) and s 92(1)(a)(i), it does not appear that s 73(5)(g) adds anything of relevance and if a part of a complaint could be dismissed under that paragraph it could also be dismissed under ss 102 and 92(1)(a)(ii) of the ADA. As a result the Tribunal will focus on s 102 in the following analysis.
The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102).
As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]:
"28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."
Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
Some further guidance as to the general approach the Tribunal should take to applications under s 102 of the ADA is also given by the Appeal Panel's decision in Margan v University of Technology, Sydney [2003] NSWADTAP 65 (which dealt with the earlier version of s 102 which used to be found in s 111 of the ADA):
9 "A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." However, Hunt J added that the words "for any other reason" include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J's example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention.
10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is `so obviously untenable that it cannot possibly succeed', `manifestly groundless', `so manifestly faulty that it does not admit of argument', one which `the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which `would involve useless expense' (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.
11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred."
In dealing with this application under ss 102 and 73(5)(g), the Tribunal notes that it has not heard full evidence in relation to these matters and will take the Applicant's case as revealed in the President's Report and other material before the Tribunal at its highest, bearing in mind the possibility of supportive material being elicited from the Respondent or its witnesses in the course of a full contested hearing. Further, even if the pleading in the Points of Claim is not as refined as might be appropriate in a superior court, the Tribunal is required under s 73(3) of the ADT Act to proceed with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms. As was held in Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [38]:
"The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us."
The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:
the terms "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...
This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
Claims sought to be Dismissed
As has been noted above, the Respondent contends that the following claims in Mr Alchin's complaint should be dismissed at this point without going to a full hearing:
(a) the racial vilification claim under s 20C of the ADA;
(b) the racial discrimination claim under s 8 of the ADA;
(c) the bullying and harassment claim; and
(d) the victimisation claim under s 50 of the ADA.
The Tribunal will consider each of these claims in turn.
The s 20C Racial Vilification Claim
Mr Alchin's covering letter of 5 July 2010 to the President of the Board includes in the heading the words "Racial and Religious Vilification Complaint". This is consistent with his Points of Claim where racial vilification under s 20C is alleged in paragraph 7. A claim of religious vilification is not pressed in the Points of Claim presumably because the ADA does not render religious vilification unlawful.
In paragraph 7, Mr Alchin contends that the conduct of his co-workers at the Hornsby Civil depot referring in derogatory terms to Asian people (see paragraph 6(a)(i) to (iv) and (vii)) and to Muslims (see paragraph 6(a)(v) and (vi)) constituted racial vilification falling within s 20C of the ADA.
The Respondent attacks Mr Alchin's racial vilification claim on the following four bases:
(a) In so far as Mr Alchin's vilification claim is not based on his race but on that of his wife and children, he is not a person who can make such a racial vilification complaint under s 88 of the ADA and thus there is no valid complaint before the Tribunal in this regard;
(b) In so far as the vilification claim is based on Mr Alchin's being a Muslim, any vilification is not on the basis of race within s 20C and vilification on the basis of religion is not rendered unlawful by the ADA;
(c) No "public act" which is required to establish vilification under s 20C has been identified by Mr Alchin;
(d) The conduct complained of would not, in any event, have the required characteristic of inciting hatred, contempt or ridicule of the nature specified in s 20C.
In order to consider each argument, it is necessary to have regard to the relevant statutory provisions.
Relevant Provisions
Section 20C(1) of the ADA provides as follows:
"It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group."
A "public act" for the purposes of s 20C is defined in s 20B, which states:
"In this Division, "public act" includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group."
"Race" for the purposes of ss 20B and 20C is defined in s 4 as including "colour, nationality, descent and ethnic, ethno-religious or national origin".
Finally, in relation to complaints of vilification, s 88 of the ADA provides:
"A vilification complaint cannot be made unless each person on whose behalf the complaint is made:
(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or
(b) claims to have that characteristic and there is no sufficient reason to doubt that claim."
Vilification on the Ground of Asian Race
As noted above, part of conduct relied upon by Mr Alchin relates to derogatory and demeaning comments about Asian persons (paragraph 6(a)(i) to (iv) and (vii) of the Points of Claim). Accepting for the purposes of this application that being Asian refers to a person's descent or ethnic origin and thus to the person's "race" for the purposes of the ADA, a problem arises for Mr Alchin.
Under s 88 of the ADA, to be a valid racial vilification complaint, each person on whose behalf the complaint was made must have or claim to have the characteristic that was the ground for the conduct that constituted the alleged contravention. In the present case, the relevant characteristic of the person or group allegedly vilified was that they were Asian. In the complaint form submitted by Mr Alchin he expressly stated that he was not complaining on behalf of someone else. It follows that unless Mr Alchin had the characteristic of being Asian he could not make this complaint of racial vilification on his own behalf.
Mr Alchin made it clear in the material submitted to the Board that none of his complaints was based on his race which he described as "white caucasian Australian" and he did not allege or claim that he was Asian. The Tribunal understands that his racial vilification complaint was relevantly based upon the fact that his wife was Asian and that his children were part Asian. Nonetheless, his complaint was not made on their behalf.
In the circumstances of the present case and under s 88 of the ADA, Mr Alchin not being Asian, he is not a person who can make a racial vilification complaint on his own behalf where the ground of vilification is that the person or group vilified is Asian. As a result, in so far as Mr Alchin's complaint of racial vilification is based upon the Asian race of the persons being vilified, there is no valid complaint before the Tribunal.
On this basis, the Tribunal concludes that this aspect of the racial vilification claim is misconceived or lacking in substance and liable to be dismissed.
Vilification on the Ground of being Muslim
In paragraph 7 of the Points of Claim, the other conduct alleged to constitute racial vilification within s 20C was the derogatory comments about Muslims set out in paragraph paragraph 6(a)(v) and (vi). Under s 20C in order to constitute racial vilification the conduct must incite certain reactions "on the ground of the race of the person or members of the group". In relation to the comments about Muslims, this could only amount to unlawful conduct under s 20C if "on the ground of the race of the person" included on the ground of the person being a Muslim. The issue, in other words, is whether the "race" of persons, as defined in the ADA, includes their being Muslim. It is correct to observe that the definition of "race" in s 4 of the ADA does include "ethno-religious ... origin". That, however, does not necessarily lead to the conclusion that membership of a religion constitutes having a particular ethno-religious origin. As can be observed from everyday experience and knowledge, Muslims and Christians, to take just two religious groups, come from many different racial, ethnic and national groups and their members generally could not be said to share any particular ethnic or other origin.
The questions of the construction of the words "ethno-religious ... origin" in the definition of "race" and whether "on the ground of race" includes "on the ground of being a Muslim" have been considered in a number of cases under the ADA. In Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20] the Tribunal held that "ethno-religious ... origin" signifies "a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices". On this basis, the Tribunal concluded at [21] that:
"it is insufficient for the applicant merely to assert his Muslim faith to fall within the statutory definition [of race]".
In Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 the Tribunal accepted what had been decided in Khan and went on to hold in relation to Mr Ahmed's claim of racial vilification in which he had only identified being a Muslim as the relevant characteristic of vilification as follows at [20]:
"There was no evidence of any associations, strong or otherwise, between the applicant's nationality, ethnicity, culture or history on the one hand, and his religious beliefs on the other. While there is no basis at all to doubt that his religious convictions are strongly and honestly held, in order to base standing for a vilification claim [under s 20C] he needs to provide evidence upon which the Tribunal may find that he has the characteristic of the relevant ethno-religious background required by s 88 of the Act."
Likewise in Kunhi v University of New England [2008] NSWADT 333 at [4] it was held by the Tribunal that:
"Race is defined in section 4 of the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Ms Kunhi says she is an Australian national and a Muslim. Ms Kunhi declined to identify her race any more precisely. Islam is a religion, not a race or an ethno-religious origin: Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70."
Similar comments were made by the Tribunal in Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 at [7] and [8]:
"7 In response to that argument Mr Ekermawi says that the race, which has been vilified in this case, is Islam and that just as Jews have been said to be protected by racial vilification provisions in the Federal jurisdiction, so adherence to Islam should also be protected. There does indeed seem to be a disparity in the way that courts have classified Jews as members of an ethno-religious group whereas Muslims, who come from diverse ethnic background, have not been characterised as a race. Nevertheless, the authorities are clear that Islam per se is not an ethno-religious origin under the provisions of the Anti-Discrimination Act. Those authorities include the case Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131. I adopt the reasoning of the Tribunal in that case at paragraphs 18 to 20.
8 It is up to Parliament, if it wishes to do so, to amend the Anti-Discrimination Act to protect religious belief from vilification. This Tribunal cannot interpret the legislation and give it a meaning any different from the ordinary or plain meaning of the words in the Act. For that reason alone I would refuse to give Mr Ekermawi leave for his complaint to go ahead because, in my view, there is little or no prospect of him succeeding on the ground of race. ..."
and in Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145 at [55] (quoted in Ekermawi v Harbour Radio Pty Ltd (No 2) [2010] NSWADT 198 at [10]):
"First, vilification of Muslims does not fall within section 20C(1), because Muslims are not a 'race' as defined in section 4 of the Act. The reason, as the Tribunal said in Khan at [18], is that Muslims 'do not share common racial, national or ethnic origins' and are therefore not an ethno-religious group such as the definition embraces. In so ruling, we follow the decisions, commencing with Khan, that are listed above at [44]. We are unaware of any recent authority to the contrary. It follows that any statements broadcast by the Respondents that generated negative feelings towards Muslims generally, or any group of Muslims, on the ground of their being Muslims could not amount to unlawful racial vilification."
Accordingly, the Tribunal concludes that, even if in this aspect of Mr Alchin's case the other elements of racial vilification under s 20C could be made out, his claim would fail because vilification merely on the ground of being Muslim is not vilification on the ground of "race", within the meaning of the ADA.
On this basis, the Tribunal finds that the claim of racial vilification under s 20C in paragraph 7 of the Points of Claim based upon the derogatory comments about Muslims set out in paragraph paragraph 6(a)(v) and (vi) is also misconceived and lacking in substance. It should be dismissed.
"Public Act" and Incitement
The Respondent relies upon 2 further grounds to attack the racial vilification claim in paragraph 7 of the Points of Claim, namely:
(c) lack of any relevant "public act" within the meaning of s 20B; and
(d) lack of the requisite type of incitement under s 20C.
Given the conclusions set out above that Mr Alchin did not have standing under s 88 to bring a racial vilification claim based on Asian ethnicity and that vilification of Muslims does not fall within section 20C(1), it is not strictly necessary to deal with the remaining two grounds. Nonetheless, in case the Tribunal is wrong in its conclusions, I propose to make some brief comments on those two remaining grounds.
First, the determination of whether or not there was a "public act" depends upon the factual circumstances in which the comments were made and the construction of s 20B of the ADA - see for example Barry v Futter [2011] NSWADT 205 at [74] to [76]. Whilst the present state of the material before the Tribunal might suggest that Mr Alchin would have difficulty establishing that there were relevant public acts, the Tribunal must take into account that further evidence is likely to be adduced and additional information obtained and that this might support the Applicant's case in this respect. Furthermore, the Respondent's principal contention in this regard appears to be that the Points of Claim fail to identify in any way what is said in each case to constitute the "public acts" rather than that there could not be any such acts in the circumstances.
In these circumstances, the Tribunal would not have been prepared to dismiss Mr Alchin's racial vilification claims at this stage only on the basis that there was in effect no arguable case that there had been relevant "public acts". The Tribunal, however, would have accepted that the relevant public acts had not been identified and this should have been done so that the Respondent was informed of the case it had to meet.
Secondly, as to the question of whether the conduct could have been found to have incited the requisite effects, this would depend very much on what was said and the circumstances in which it was said. The Tribunal would not have been prepared to determine at this stage and without the benefit of all the evidence and submissions that the Applicant's case in this regard was so lacking in merit that it should not have been allowed to proceed.
In oral submissions, the Respondent also raised that at present there was no complaint against the individuals who made the comments but only against RailCorp. It was also said to be unclear whether or not Mr Alchin was relying upon s 53 in this regard. Paragraph 14 of the Points of Claims, however, states that in relation to the vilification claims, among others, the Applicant was relying upon both direct liability of RailCorp (presumably under general law principles relating to conduct by corporations) and vicarious liability under s 53. If the situation arose where further clarification were needed, this could be sought in correspondence between the solicitors.
Conclusion on Racial Vilification Claims
For the reasons given above, the Tribunal finds that the racial vilification claims the subject of paragraph 7 of the Points of Claim are misconceived and lacking in substance and should be dismissed.
The Racial Discrimination Claim
Mr Alchin's claim of racial discrimination occurring in his employment is based on ss 7 and 8 of the ADA. Section 8 proscribes racial discrimination in employment and s 7 specifies what constitutes discrimination on the ground of race.
In the Points of Claim, it is first alleged that Mr Alchin was a Muslim and that his wife was of Asian ethnicity and of Indonesian background, then paragraph 6 of the Points of Claim pleads Mr Alchin's claim of racial discrimination in the following terms:
"During the period between approximately May 2009 and March 2010 [it can be noted that the relevant period identified in the President's report was 12 July 2009 to 11 July 2010], the Applicant's conditions of employment were such that he was subjected to repeated discrimination on the grounds of race, and/or the race of his spouse, and/or the race of his family (including colour, nationality, descent and ethnic, ethno-religious and/or national origin within the wider meaning of 'race' as defined in section 4 of the Act)".
Particulars were then given of derogatory and demeaning comments about Asian persons (in paragraph 6(a)(i) to (iv) and (vii)) and derogatory and demeaning comments about Muslims (in paragraph 6(a)(v) and (vi)). These particulars are generally consistent with the matters raised in the material submitted to the Board by Mr Alchin.
Paragraphs 8, 9, 10, 11 and 14 of the Points of Claim also appear to have some potential relevance to the racial discrimination claim. They allege:
"8 The Facts pleaded and particularised in paragraphs 6 and 7 above were at all material times known to the Respondent.
9 From time to time, the Applicant made complaints to his supervisor/s about the various matters particularised above. The abovementioned conduct to which the Applicant was subjected was both unsolicited and unwelcome, and this fact was also conveyed to the Applicant's supervisor/s from time to time.
10 During the period May 2009 to March 2010, an offensive, intimidating and racially prejudiced climate permeated the Applicant's work environment which was sufficiently pervasive to adversely affect the terms and conditions of his employment.
11 The Applicant was placed under a disadvantage and subjected to detriment.
...
14 In the premises, the Respondent either directly discriminated against ... the Applicant as the effective perpetrator of the offending conduct, and/or the perpetrator/s were acting with the express or implied authorisation of the Respondent within the meaning of Section 53 of the Act, such that the Respondent is vicariously liable for the discriminatory ... conduct."
The Respondent effectively made three submissions in relation to the racial discrimination claim:
(a) in so far as Mr Alchin's case was based upon discrimination because he was a Muslim, this could not amount to racial discrimination because Muslims are not a "race" as defined in s 4 of the Act:
(b) Mr Alchin's evidence and complaint do not identify any actionable instance of less favourable treatment, segregation or a requirement to comply with a relevant type of condition falling within s 7(1)(a), (b) or (c) of the ADA respectively;
(c) Mr Alchin's evidence and complaint do not identify discrimination in the terms or conditions of employment, denial or limitation of access to relevant opportunities or being dismissed or subjected to any detriment falling within s 8(2)(a), (b) or (c) respectively.
Relevant Statutory Provisions
In addition to the provisions of the ADA already quoted above, it should be noted that s 8 of that Act provides:
"(1) It is unlawful for an employer to discriminate against a person on the ground of race:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household."
Discrimination on the ground of race is explained in s 7 of the ADA in the following terms:
(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, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
Discrimination on the Ground of his Race or of being a Muslim
From Mr Alchin's statement made in his response to the Board, it is clear that he is not alleging that he was discriminated against because of his own race. He said:
I have not made any complaint that is related to MY RACE I am white caucasian Australian by race and the complaint is that I was discriminated against because the constant offensive racial comments I had to endure from these people aimed directly at me knowing it was offensive to me as half my family are asian and that my wife is asian and that my children are of mixed asian race ...
If this is the case, it is difficult to understand why paragraph 6 of the Points of Claim includes the allegation that "he was subjected to repeated discrimination on the grounds of" not only "the race of his spouse, and/or the race of his family" but also on the grounds of "race". The inclusion of the words "race, and/or", in the context, suggests that a claim based on Mr Alchin's own race is being made. This, however, would apparently be a misstatement of the substance of his complaint.
Alternatively, if these words "race, and/or" were intended to allege that Mr Alchin was discriminated against because he was a Muslim, the Tribunal has already found, in the light of the authorities quoted above, that Muslims are not a "race" for the purposes of the ADA. Accordingly, discrimination only on the ground that a person is a Muslim does not fall within the conduct that is rendered unlawful by s 8 of the ADA.
Accordingly, the words "race, and/or" should be deleted from paragraph 6 of the Points of Claim. Further, in so far as it was intended to claim that Mr Alchin was discriminated against under s 8 of the ADA because he was a Muslim, that claim should be dismissed.
Notwithstanding those conclusions, Mr Alchin still has available to him claims based on the allegations that he was discriminated against on the grounds of his wife's and his children's race as alleged in paragraph 6 of the Points of Claim, relying on the words "on the ground of ... the race of a relative ... of the aggrieved person" in the chapeau to s 7(1) of the ADA.
The Respondent's second and third submissions in relation to alleged racial discrimination are directed at this claim of racial discrimination on the ground of his wife's or his children's race.
No Conduct Falling within s 7(1)(a), (b) or (c) Identified
The substance of this submission by the Respondent was that there was no identifiable instance of less favourable treatment, segregation or a requirement to comply with a relevant type of condition, falling within s 7(1)(a), (b) or (c) of the ADA respectively, in the evidence or other material and as a result Mr Alchin's claim either:
(a) should be dismissed; or
(b) has not properly been disclosed and the Respondent should be informed of the case it has to meet.
It is true that the conduct particularised in paragraph 6(a) of the Points of Claim appears limited to words spoken to Mr Alchin by co-workers and that paragraph 11 of the Points of Claim merely alleges "disadvantage" and "detriment" without identifying what they were. In the material before the Tribunal, however, Mr Alchin identifies a number of instances which might arguably be said to amount to less favourable treatment within the meaning of s 7(1)(a), for example (and without attempting to be exhaustive) his complaints not being properly investigated by RailCorp management, CCTV footage not being made available or not used to identify perpetrators, supervisors not intervening to prevent the offensive conduct and Mr Alchin being denied a fair share of night shift work. That of course is not to say that Mr Alchin would necessarily succeed in a case based upon those matters, especially having regard to the requirement in s 7(1)(a) that he prove that in relation to such conduct, if it occurred, he was treated less favourably than "in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person ... who has such a relative ... of a different race" from that of Mr Alchin's wife or children.
Nonetheless, given the nature of this application, the principle that the Tribunal should not deny Mr Alchin the opportunity to present his case at a hearing if it can identify an arguable case from the material before it and the complaints Mr Alchin has made, it appears to the Tribunal that it would be inappropriate to dismiss this aspect of Mr Alchin's claim for racial discrimination.
The Tribunal accepts, however, that there is a problem for the Respondent in that it is not clear from the Points of Claim and the President's Report and other material what particular aspects of s 7(1)(a), (b) or (c) are being relied upon by the Applicant as "disadvantage" or "detriment". The Tribunal proposes to make directions so that the Respondent is informed of what the Applicant's case is in this regard.
No Conduct Falling within s 8(2)(a), (b) or (c) Identified
Although not specified in the Points of Claim, it appears that Mr Alchin's racial discrimination claim is made under s 8(2) of the ADA and not s 8(1). Accordingly, in order to succeed, Mr Alchin must establish discrimination on the ground of his wife's or his children's race under s 7(1) either:
(a) in the terms or conditions of employment which RailCorp afforded him; or
(b) by denying or limiting his access to opportunities for promotion, transfer or training or to any other benefits associated with his employment, or
(c) by subjecting him to any other detriment.
In this regard, the Respondent's submission is to the effect that the Points of Claim and the other material relied upon by Mr Alchin do not identify sufficiently or at all discrimination in the terms or conditions of employment, denial or limitation of access to relevant opportunities or how he was subjected to any detriment, falling within s 8(2)(a), (b) or (c) respectively. As a result, the racial discrimination claim should be dismissed or clarified.
For similar reasons to those given above in relation to the failure to identify conduct falling within s 7(1), the Tribunal does not believe that it is appropriate to dismiss this aspect of the complaint in the circumstances. There is material before the Tribunal which indicates that Mr Alchin may have a case under s 8(2)(a) or (c) in relation to his conditions of employment or detriment because of a consistently racially hostile work environment, although these matters are not identified with a great degree of clarity in the Points of Claim. Similarly, the Tribunal is not in a position to conclude that the Applicant does not have a case under s 8(2)(b) for example because he was denied access to the benefit of night shifts or having his complaint properly dealt with. Once again, the Tribunal observes that its comments should not be taken as an indication that it has formed any view as to the strength or merits of any case based upon any aspects of s 8(2) which Mr Alchin may wish to put forward. Nor should it be forgotten that in order to constitute unlawful racial discrimination such conduct would also have to satisfy the relevant requirements of s 7(1).
The Tribunal nonetheless accepts that the Respondent has not been adequately appraised of the case it has to meet in relation to s 8(2) of the ADA. The Tribunal proposes to make directions so that the Respondent is informed of what the Applicant's case is in this regard.
Conclusions on the s 8 Racial Discrimination Claim
In summary the Tribunal's conclusions on the racial discrimination claim are that:
(a) the words "race, and/or" should be deleted from paragraph 6 of the Points of Claim, noting that Mr Alchin does not complain that he was discriminated against on the ground of his race, being "white caucasian Australian";
(b) in so far as it was intended to claim that Mr Alchin was discriminated against because he was a Muslim, that claim should be dismissed as misconceived or lacking in substance;
(c) Mr Alchin's claim that he was discriminated against on the ground of his wife's or his children's race should not be dismissed but directions should be made requiring him to identify clearly what facts, matters and circumstances are relied upon to make out the elements of ss 7(1) and 8(2) of the ADA which are said to constitute unlawful racial discrimination in each instance relied upon by Mr Alchin.
The Bullying and Harassment Claim
In addition to the particulars of racial discrimination given in paragraph 6(a) of the Points of Claim, paragraph 6(b) states "The conduct particularised above [in paragraph 6(1)(i) to (vii)] was accompanied by, and augmented by, a campaign of bullying and harassment." There followed particulars in paragraph 6(b)((i) to (iii) which covered the matters referred to above in [5(a)] and [5(d)] - harassment, derogatory descriptions of the Applicant including that he was a "paedophile" and a notice suggesting he had AIDS.
The Respondent sought to attack this part of the Applicant's case on the basis that bullying and harassment such as that referred to in paragraph 6(b) were not unlawful under the ADA and as a result any claim for bullying and harassment should be dismissed.
As the Tribunal understands it, the conduct referred to in paragraph 6(b) was not put forward as an independent claim nor was it suggested in the Applicants submissions that without more such conduct was unlawful under the ADA. Rather it was said that this conduct was "part of a campaign of racial discrimination" and it went to Mr Alchin's case under s 8(2)(a) or (c) concerning his conditions of employment or a detriment resulting from a consistently racially hostile work environment. It might be added here that without proof that the conduct particularised was engaged in on the ground of race and was conduct for which the Respondent could be held responsible, establishing the matter particularised in paragraph 6(b)(i) to (iii) may not be of great assistance to Mr Alchin. Whether or not that is so, however, is a matter better left to a full hearing of the matter.
Understood in this way, the Tribunal believes that paragraph 6(b) and the accompanying particulars should not be struck out. Further, given that no independent claim for bullying or harassment is being made, such a claim does not need to be dismissed. To the extent that the bullying and harassment are being relied upon to establish a claim of racial discrimination, this should be made manifest as a result of the directions which the Tribunal proposes to make requiring Mr Alchin to clarify how his claims under ss 7 and 8 are to be made out.
Section 50 Victimisation Claim
In paragraph 13 of the Points of Claim, Mr Alchin states:
"The Applicant also pleads that some of the conduct particularised in paragraph 6 and 7 amounted to victimisation within the meaning of Section 50 of the Act, in that the Applicant was submitted to a detriment because he had made complaints to the Respondent about conduct that would amount to a breach of the Act."
This paragraph is not particularly informative as it does not identify any specific conduct that amounted to submitting the complaint, any particular conduct the subject of the complaint or any particular detriment suffered by the Applicant as a result of submitting the complaint. Nonetheless, as the Applicant rightly noted, the Tribunal is not a court of strict pleading and it is required and does proceed with as little formality as the circumstances permit. Further, from its own response to the Board's enquiries contained in the President's Report, the Respondent in its oral submissions pointed out that Mr Alchin had made a written complaint to RailCorp on 17 March 2010, which RailCorp stated was "in essence, the same as the ADB complaint".
While it is not clear, it appears that some conduct relied upon as constituting victimisation might have occurred after the complaint was lodged on 17 March 2010, see for example Mr Alchin's statement in his letter to the Board dated 15 October 2010 that:
"Ben Ward did not say to me but to Mark Bartley and Robert McTeare that 'If I lose my job over this I'll burn his house down with him and his f**king gook family in it.' RailCorp took no action when informed of this"
In relation to this claim of victimisation, the Respondent made two points:
(a) if the Tribunal were minded to dismiss the racial vilification, racial discrimination and bullying and harassment claims, there would be no contravention of the ADA upon which the victimisation claim could be based;
(b) the President of the Board did not refer a complaint of victimisation under s 50 of the ADA to the Tribunal and accordingly this aspect of the Points of Claim should be dismissed.
Relevant Statutory Provisions
Section 50 of the ADA relevantly provides:
"(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
..."
It can be noted that s 50(1)(c) unlike the other provisions of that subsection, extends beyond conduct done under or by reference to the ADA. All that is required under s 50(1)(c) is that the person victimised:
(a) must have alleged that the discriminator or some other person has committed an act which would amount to a contravention of the ADA; and
(b) was subjected by the discriminator to a detriment on the ground of the person victimised having done (a).
It does not matter whether the person victimised in making the allegation identified the conduct as a contravention of the ADA.
Alleged Conduct Does Not Contravene the ADA
The Respondent's first ground of attack only applies if the Tribunal has reached the conclusion that none of the other conduct alleged by Mr Alchin would constitute a contravention of the ADA. If that conclusion were reached, the Respondent could argue that Mr Alchin had failed to satisfy the first limb of s 50(1)(c) identified in the preceding paragraph because that conduct alleged by Mr Alchin could be said not to amount to a contravention of the ADA.
For the reasons already given, the Tribunal has not reached the conclusion that none of the conduct alleged by Mr Alchin would constitute a contravention of the ADA. There are issues relating to discrimination on the ground of his wife's or his children's race which the Tribunal does not propose to dismiss. Thus, this ground of attack on the victimisation claim must fail at this time. Nonetheless, the Tribunal is minded to require the Applicant to identify with more clarity the particular facts and circumstances relied upon as giving rise to this claim of victimisation.
A s 50 Victimisation Complaint was Not Referred by the President
The second ground relied upon by the Respondent was that the President of the Board did not refer a complaint of victimisation under s 50 of the ADA to the Tribunal and accordingly this aspect of the Points of Claim should be dismissed.
It is true that in the "President's Summary of Complaint" the only sections of the ADA identified by the President in Item 5 "Type of Complaint/s and section/s allegedly breached" were ss 7 and 8 of the ADA. The resolution of this ground of attack, however, essentially depends upon what is the subject matter of this proceeding in the Tribunal. This turns upon the proper construction of the ADA and the ADT Act.
Relevant Statutory Provisions
The Tribunal's jurisdiction to determine matters arising under the ADA depends on various provisions including ss 36, 37 and 45 of the ADT Act which provide:
36 What are the principal kinds of decisions that the Tribunal may make?
(1) The Tribunal may:
(a) make original decisions, and
(b) review reviewable decisions.
(2) This section does not limit any other function of the Tribunal.
Note: An original decision is a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Division 3 of Part 9 of the Anti-Discrimination Act 1977 . Other examples are mentioned in Schedule 2.
37 Conferral of jurisdiction to make original decisions
The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.
...
45 Tribunal has the functions conferred or imposed by or under enactment
In determining an application for an original decision, the Tribunal has such functions as are conferred or imposed on the Tribunal by or under the enactment under which the application is brought.
The ADA confers the power to make original decisions on the Tribunal under Division 3 of Part 9 (as indicated by the statutory note to s 36 of the ADT Act quoted above) which includes:
95 Referral of complaints to Tribunal
(1) A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C.
(2) The Minister may refer any matter to the Tribunal as a complaint.
(3) For the purposes of the AdministrativeDecisions Tribunal Act 1997 , the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.
...
97 Parties to proceedings before Tribunal
(1) Despite section 67 (1) of the Administrative Decisions Tribunal Act1997 , the parties to proceedings before the Tribunal relating to a complaint are:
(a) the complainant who, for the purposes of the Administrative Decisions Tribunal Act1997 , is taken to be the applicant, and
(b) the respondent, and
(c) any other person who has been made a party to the proceedings in accordance with section 67 (4) of the AdministrativeDecisions Tribunal Act 1997 , and
(d) if the Attorney General intervenes in the proceedings under section 69 of the Administrative Decisions TribunalAct 1997 , the Attorney General.
(2) The Tribunal may substitute a complainant or respondent if the Tribunal is of the opinion that the other parties to the proceedings will not be prejudiced by the substitution.
(3) The Tribunal may remove or agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with the complaint.
...
102 Tribunal may dismiss complaint
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
...
108 Order or other decision of Tribunal
(1) In proceedings relating to a complaint, the Tribunal may:
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,
(g) decline to take any further action in the matter.
(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.
(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.
(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(6) If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.
(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.
From these provisions it follows that the application for original decision is the "complaint" referred to the Tribunal by the President of the Board under s 90B, 93A, 93B or 93C of the ADA - s 95(3) of the ADA. The complainant becomes the applicant in the Tribunal - s 97(1)(a) of the ADA. The decision making powers of the Tribunal in relation to such a "complaint" include those set out in ss 102 and 108 of the ADA. In the present case, as noted above, Mr Alchin's complaint was referred to the Tribunal by the President under s 93C(a) of the ADA.
In s 87 of the ADA "complaint" is defined as follows:
"complaint" means a complaint made under section 87A and includes a matter referred to the Tribunal as a complaint under section 95 (2).
Section 87A deals primarily with who may make a complaint and provides:
(1) A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by any of the following:
(a) one or more persons:
(i) on his, her or their own behalf, or
(ii) on his, her or their own behalf as well as on behalf of another person or persons,
(b) a parent or guardian of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability),
(c) a representative body on behalf of a named person or persons, subject to section 87C,
(d) an agent of any of the persons referred to in paragraph (a), (b) or (c).
(2) Nothing in this Division prevents a person from making a complaint (not being a representative complaint) even though the conduct in respect of which the complaint is made is also conduct in respect of which a representative complaint has been made.
(3) In this section, "guardian" has the same meaning as it has in the Guardianship Act1987 .
Mr Alchin made the complaint on his own behalf and not on behalf of others.
As to the form and contents of a complaint, ss 89 and 94A of the ADA provide:
89 Form and content of complaints
(1) A complaint is to be in writing but does not have to take any particular form.
(2) A complaint, as made, need not demonstrate a prima facie case.
94A Form of complaint to be referred to Tribunal
(1) If a complaint is referred to the Tribunal under this Division, the complaint is to comprise:
(a) the original complaint lodged with the President, and
(b) any amendment made pursuant to section 91C, and
(c) any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations.
(2) A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint.
Thus, when a "complaint" is referred to the Tribunal it comprises the documents listed in s 94A(1) and in particular it includes not only the original complaint lodged but also any other documents that in the President's opinion help to identify the subject matter of the complaint or otherwise contain an allegation of a contravention of a provision of the ADA.
The fact that, under s 94A(2), the complaint referred to the Tribunal is to be accompanied by what is described as "a report relating to any investigation by the President of the complaint" does not mean that the President's Report or Summary of Complaint determines what is the subject matter of the complaint. Indeed, the wording of s 94A(2) strongly suggests that the President's Summary of Complaint is not part of the "complaint" referred to the Tribunal but merely accompanies it.
Section 94A and other relevant provisions in Division 9 Parts 1, 2 and 3 of the ADA were introduced only in 2004 by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No 79 (NSW). The authorities referred to by the Respondent generally predated the introduction of s 94A and the other provisions in their current form.
Nonetheless, the general principle stated in decisions such as Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 can be accepted, subject to the changes effected by the 2004 amending Act. At [18] to [20] in Fricke, the Tribunal held:
18 Nevertheless, the scope of the complaint is confined to the matters in the complaint and as noted by the Tribunal in Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186 at para. 40:
"The statute establishing the Tribunal, the ADT Act, circumscribes its jurisdiction. The Tribunal has no power to enquire at large into matters which take its interest."
19 The Tribunal receives its jurisdiction from the complaint referred to it by the Board under Section 94(1) of the Act. The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the President's Report. Authority for this settled proposition appears in Dee v Commissioner of Police & Anor 2003 NSW ADT 217, at para 13.
20 In Salama v Qantas Airways Limited (2002) NSW ADT 119 at para. 16, the Tribunal confirms that the referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred by the President.
The fact that the President's Report or Summary of Complaint (supplied in accordance with s 94A(2)) in this matter only identified ss 7 and 8 of the ADA as the "section/s allegedly breached" provides a potentially helpful indication of the President's assessment of the matter but does not confine the ambit of the bases of complaint made by Mr Alchin which the Tribunal has jurisdiction to consider. The bases of complaint over which the Tribunal has jurisdiction are determined by the subject matter of the original and any amended complaint to the Board (provided under s 94A(1)(a) and (b)) and of any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations (provided under s 94A(1)(c)). For it is these documents that comprise the "complaint" referred by the President.
Thus, in the present case, the subject matter of the complaint referred to the Tribunal by the President can be identified by reference to the complaint documentation lodged by Mr Alchin with the Board and the responses from Mr Alchin and RailCorp to the Board (all of which formed part of the documentation provided by the President of the Board to the Tribunal in accordance with s 94A(1)). This includes Mr Alchin's complaint form dated 2 July 2007, the covering letter from Mr Alchin dated 5 July 2010 headed "Anti Discrimination/ Bullying, Victimisation, Harassment, Racial and Religious Villification Complaint" and Mr Alchin's response to the Board dated 15 October 2010. In those documents, the subject matter of a victimisation claim is identified to some extent and victimisation as a distinct ground of complaint is noted in the heading to the covering letter.
Accordingly, the Tribunal rejects the Respondent's submission that "the President of the Anti-Discrimination Board has not referred a complaint of victimisation pursuant to section 50 of the AD Act to the Tribunal. Accordingly, ... this aspect of the Points of Claim should be dismissed."
Conclusions on Victimisation Claim
The Tribunal's conclusion on the Victimisation Claim is that both grounds of attack relied upon by the Respondent fail. Accordingly, this claim should not be dismissed.
Orders
In the light of the Tribunal's conclusions, the appropriate course is for the Tribunal to:
(a) order that the words "race, and/or" should be struck out of paragraph 6 of the Points of Claim;
(b) order that those parts of the complaint which are claims of:
(i) racial vilification;
(ii) discrimination against Mr Alchin on the ground that he or his relatives are Muslims,
be dismissed under s 102 of the ADA on the ground that those claims are misconceived or lacking in substance;
(c) direct that Mr Alchin file and serve on the Respondent on or before 3 August 2012 a document identifying clearly what facts, matters and circumstances are alleged to constitute:
(i) each instance of discrimination under s 8(2)(a), (b) or (c) of the ADA upon which the Applicant relies; and
(ii) the basis for a finding that each instance referred to in (i) amounted to discrimination '"on the ground of race" within the meaning s 7(1) and of the ADA;
(iii) each instance of detriment alleged to constitute victimisation under s 50 of the ADA upon which the Applicant relies; and
(iv) the basis for a finding that each instance referred to in (iii) was on one of the grounds set out in s 50(1) of the ADA;
(d) Otherwise, order that the Respondent's interlocutory application made by letter dated 30 March 2012 be dismissed.
(e) The application is listed for further case conference on 22 August 2012 at 3.00pm.
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Decision last updated: 23 July 2012
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