Applicant 201943 v The School

[2021] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 201943 v THE SCHOOL (Discrimination) [2021] ACAT 3

DT 43/2019

Catchwords:               DISCRIMINATION – interim application – strike out – identification of discrimination – protected attribute – whether applicant was employed by the respondent – admissibility of evidence produced in the process of mediation or conciliation – confidentiality – without prejudice – strike out application accepted – application wholly dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 55A

Court Procedures Act 2004 s 52B
Discrimination Act 1991 ss 4AA, 8, 11, 68, dictionary
Human Rights Commission Act 2005 ss 53A, 53C
Liquor Act 2010 s 20
Workplace Health and Safety Act 2011 s 7

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65

Cheluvappa v University of Canberra [2018] ACAT 108
Gindy & Chief Minister and ACT Government and Ors [2011] ACAT 67

Tribunal:  Presidential Member H Robinson

Date of Orders:  21 January 2021

Date of Reasons for Decision:         21 January 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 43/2019

BETWEEN:

APPLICANT 201943

Applicant

AND:

THE SCHOOL

Respondent

TRIBUNAL:     Presidential Member H Robinson

DATE:21 January 2021

ORDER

The Tribunal orders that:

1.The application be wholly dismissed under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..

Presidential Member H Robinson

REASONS FOR DECISION

1.By way of interim application dated 18 May 2020, the respondent seeks to have this application struck out as being without substance. This is my decision on that interim application.

Background

2.The applicant to the substantive proceeding has many years’ experience as a volunteer cricket coach with a Cricket Club (CC), a sporting club associated with a school (the School), a secondary school operated by the respondent. The applicant claims that the respondent discriminated against him on the grounds of religious conviction and disability when it denied him the opportunity to participate in coaching, either as previously undertaken or at all. He also claims that he has been victimised because he previously made a complaint under the Discrimination Act.

Procedural history and interim application

3.The applicant has been a volunteer cricket coach with the CC since the 2010/11 cricket season. He takes this role very seriously. Relevantly to these proceedings, he believes that engagement with the community through charitable actions, such as coaching cricket, is an essential tenant of his faith.

4.The applicant says that in around 2018 or 2019 his ‘zeal’ as a coach began to ‘bother’ some school staff. He begun to feel excluded from the CC and the School, and representatives of both discouraged him from undertaking the additional activities associated with the club. In early 2019 he made a complaint to the ACT Human Rights Commission (HRC). The complaint was later referred to the Tribunal (DT 4/2019) (the previous proceeding). The matter was settled at mediation and the parties entered into a signed settlement agreement (the conciliation agreement), following which the matter was withdrawn and dismissed.

5.On 29 July 2019, the applicant made a further complaint to the HRC (the complaint). That complaint is the subject of the proceedings. In the complaint, the applicant says, amongst other things, that the offer made by the the School in the previous proceedings and written agreement accepted by him was “in contradiction to what was agreed and listed a number of untenable requirements/conditions.” He outlines four criticisms of the agreement and sets out the consequences for him of agreeing to it.

6.On 25 November 2019, the HRC wrote to the applicant and advised him that it had determined that his complaints were lacking in substance. The applicant asked the Commissioner to refer the matter to the ACAT in accordance with section 53C of the Human Rights Commission Act 2005 (HRC Act).

7.On 24 February 2020 the tribunal made directions in this matter, including that the applicant file by 6 April 2020 a document setting out the protected attribute(s) he relies upon; each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act 1991 (the Discrimination Act) and which was the subject of the complaint to the Human Rights Commission. The timeframe was later extended to 20 April 2020.

8.On 20 April 2020 the applicant sent to the tribunal and the respondent an email setting out the matters required by the directions of 24 February 2020 (the applicant’s points of claim).

9.On 18 May 2020 the respondent filed an interim application seeking that:

(a)the matter be struck out under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) on the basis that the claim is without substance;

(b)the applicant be directed under section 32(2)(c) of the Act to refrain from making a subsequent application to the ACT Human Rights Commission and/or the tribunal arising out of the same or in relation to the same set of facts without the leave of the tribunal; and

(c)the applicant pay the respondent’s costs.

10.The interim application was listed for directions on 28 August 2020. On that date, the interim application was listed for hearing on 14 September 2020 and a timetable was set for lodging documents and submissions.

11.Both the applicant and the respondent filed material in response to the directions of 28 August 2020.

12.On 7 September 2020 the applicant wrote to the tribunal registry and sought a stay of proceedings. He was advised to lodge an interim application, which would be heard on 14 September 2020. No interim application was received.

13.On 14 September 2020 the applicant contacted the tribunal and advised that he was unable to attend the tribunal for medical reasons. He was advised by the tribunal registry that the hearing would proceed. He was subsequently advised that the hearing would proceed by telephone.

14.The applicant did not attend the strike-out hearing on Monday 14 September 2020 either in person or by telephone. The Tribunal made directions allowing the applicant to file, by 25 September 2020, any further material in response to the respondent’s material and directed that the matter be decided in chambers on the papers.

15.On 21 September 2020 the applicant contacted the tribunal to seek an extension of time to file documents in compliance with the orders of 14 September 2020. The extension was granted to 15 October 2020 (with the respondent given an extension to 22 October 2020 to file material in reply).

16.On 6 October 2020 the applicant contacted the registry and asked whether the matter could be referred to another Court. On 8 October 2020 registry advised the applicant how to make an application for this matter to be removed to the Supreme Court.

17.The applicant has filed no further submissions and made no application for this matter to be removed to the Supreme Court.

The points of claim

18.In his points of claim, the applicant sets out his complaints as follows. I have given each of the events/grounds a title for ease of reference:

Protected Attributes:

Religious Convictions

Disability

Victimisation because I took discrimination action

Events:

Breach of conciliation confidentiality in relation to the disclosure of Fraud, Tax Evasion and Tender manipulation by the [Cricket Club] committee members at the request and approval of [the School] staff.

[the School] staff subsequently sought and gained cooperation of Cricket ACT and Weston Creek Molonglo Cricket to prevent me from volunteering in any capacity within the ACT cricket community for the season 2019/20 season (the collusion ground).

Offer put forward by respondent on 8 May 2019 was discriminatory as it:

Intentionally limited me to an option coaching a team that plays only Sunday mornings which clashes with religious observance

Prevented me from undertaking work as an official umpire which is paid by the Umpires and scorers’ association

Prevented me from purchasing material and paying fees for families in difficult circumstances - this is part of my penance for activities in my youth. Penance is one of the seven sacraments of the catholic faith and is actively promoted by the Respondent. This was also consistent with the teachings of Luke (apostle) in so far as treating all parents the same way as we treat our own parents.

Required me to not seek membership of the Cricket Committee after (i) being removed illegally by [the School] staff and (ii) disclosing the fraud, tax evasion and tender manipulation firstly to [the School] staff and conciliation. As an unincorporated body, the cricket committee is an entity for Australian Tax Office purposes. Rules on how the committee are to act have been put forward and removal of a committee member requires the unanimous vote of the committee. This did not happen but I was nevertheless removed for trying to stop the criminal activity - religious convictions. (the offer ground)

Intended to appoint a manager for the team without my input - this was done recently so that the manager would alienate me from the parents and committee communications, intercede when organising extra assistance for the students and otherwise report back to [School] staff on what I was doing / planning and violating my privacy with personal messages being also referred to the staff for monitoring. (the exclusion ground)

Also, at the request of staff, the manager and president of the cricket committee would impugn my character by telling parents that I charge them for my volunteer coaching activities.(the character ground)

19.The applicant seeks orders that:

(a)the respondent apologise publicly;

(b)the respondent pay $23,500 for the serious victimisation and vilification;

(c)the respondent fulfill its promise to use its capability to join a Level 3 coaching course;

(d)the respondent re-appoint the applicant to the cricket committee as specialist coach, vice president/delegate to Cricket ACT junior council, coordinator of u15s for the 2020/21 season; and

(e)that former and current School staff be removed as voting and life members of the cricket committee due to the sponsorship of criminal activities.

The tribunal’s jurisdiction

20.The tribunal regards complaints referred by the HRC under the HRC Act as applications made to the tribunal under section 9 of the ACAT Act. Section 53C of the HRC Act provides that parties to tribunal proceedings on a referred complaint are the complainant and the person complained about.[1] Hence, the complainant becomes an ‘applicant’ for the purposes of the proceedings before the tribunal, and the person complained about becomes the respondent.

What is unlawful discrimination?

[1] Gindy & Chief Minister and ACT Government and Ors [2011] ACAT 67; Cheluvappa v University of Canberra [2018] ACAT 108 at [3]

21.The Discrimination Act does not prohibit ‘discrimination’ at large. Rather, is a form of unlawful discrimination, as defined in the Act, where that discrimination:

(a)is because of one of the ‘protected attributes’ set out in section 8(2) of the Discrimination Act; and

(b)takes place in an area of public life covered by Part 3 of the Discrimination Act.

22.‘Discrimination’ is given a particular and confined meaning by section 8 of the Discrimination Act. This section defines two types of the discrimination, ‘direct’ and ‘indirect’ as follows:

(1)     For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2)     For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.

(3)     For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.

(4)     However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.

23.It is unclear whether the applicant is alleging direct discrimination as per section 8(2) or indirect discrimination as per section 8(3), but the applicant does not need to choose between them at this time.[2]  For the applicant’s complaints of unlawful discrimination to succeed he must establish that he was:

(a)treated unfavourably by the respondent; or

(b)disadvantaged by the respondent by imposing or proposing to impose a condition or requirement on him; and

(c)This happened in a protected area of public life; and

(d)This was because of a protected attribute.

[2] See Australian Capital Territory v Wang [2019] ACAT 65 – appeal at [159]-[160]

24.The applicant also claims to have been the subject of victimisation by the respondent. Victimisation is dealt with in section 68 of the Discrimination Act, which provides:

Victimisation

(1)     It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because—

(a)the other person, or someone associated with the other person—

(i)has taken discrimination action; or

(ii)proposes to take discrimination action; or

(b)the first person believes the other person, or someone associated with the other person—

(i)has taken discrimination action; or

(ii)proposes to take discrimination action.

(2)     In this section:

“discrimination action” means any of the following:

(a)begin a proceeding in the ACAT or a court in relation to this Act;

(b)make a discrimination complaint;

(c)participate in or assist with, a criminal investigation in relation to an offence under the Criminal Code, section 750 (Serious vilification);

(d)give information or produce a document or other thing to a person exercising a function under the HRC Act

in relation to a discrimination complaint;

(e)give information, produce a document or other thing or answer a question when required under the HRC Act

in relation to a discrimination complaint;

(f)give evidence or produce a document or thing to the ACAT or a court in relation to this Act;

(g)reasonably assert any rights that the other person, or someone else, has under this Act;

(h)claim that a person has committed an act that is unlawful under this Act, or is an offence against the Criminal Code, section 750, other than a claim that is false and not made honestly;

(i)do anything else in accordance with this Act.

“discrimination complaint” means a complaint under the HRC Act

about an unlawful act.

“HRC Act” means the Human Rights Commission Act 2005

25.To succeed in a claim for victimisation, the applicant must establish that:

(a)the respondent or someone associated with the respondent;

(b)has subjected him, or threatened to subject him to, a detriment because he had made a complaint to the HRC.

26.In the case of both unlawful discrimination and victimisation, it is the terms of the complaint that is referred to the tribunal by the HRC that defines the tribunal’s jurisdiction. Hence, while the tribunal should not take an unduly narrow or pedantic approach to interpreting a complaint (as a matter of practice, they are rarely well particularised) it must always bear in mind it has no jurisdiction to determine matters that have not been through the HRC process. There is no apparent means by which the tribunal can enable a party to “amend” the application. Hence, when an applicant to a discrimination proceeding wishes to raise new grounds of complaint, or rely upon new protected attributes, these must be the subject of a complaint and a referral before the tribunal can consider them. The consequences of this requirement for the present claim are considered further below.

Dismissing and striking out applications

27.In seeking a strike-out of the applicant, the respondent relies on section 32 of the ACAT Act which provides:

Dismissing or striking out applications

(1)     This section applies if the tribunal considers that an application, or part of an application is––

(a)frivolous or vexatious; or

(b)lacking in substance; or

(c)otherwise an abuse of process; or

(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.

(2)     The tribunal may, by order, do 1 or more of the following:

(a)refuse to hear the application or part of the application;

(b)dismiss the application or part of the application;

(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—

(i)      within a stated period of time; or

(ii)     without the leave of the tribunal.

Note...

(3)     The tribunal may make an order under subsection (2) on its own initiative or on application by a party.

...

Note The tribunal must observe natural justice and procedural fairness (see 7).

28.In Gindy the tribunal stated that a decision to strike out a claim under section 32 of the ACAT Act has the inevitable consequence that the applicant for the matter will not have access to a full hearing on the merits. Prima facie this engages the applicant’s right to a fair hearing under section 21 of the Human Rights Act 2004 (HR Act), and accordingly strike-out applications are treated with caution by the tribunal. 

29.As the tribunal observed in Cheluvappa, and quoting Gindy:

I have considered the extent to which a decision under section 32 of the ACAT Act is consistent with the human rights contained in the HR Act and, specifically with the right to a fair trial. The right to a fair trial does not, in my view, mean that the tribunal cannot or should not exercise its strike-out power in a matter which it is satisfied is doomed to fail, or a matter which lacks substance in respect of any element that is essential for the complainant to prove. The right of access to the tribunal and the right to a full hearing is not absolute. Section 32 of the ACAT Act pursues a legitimate aim of discouraging litigants from bringing claims that have no merit...[3]

[3] Cheluvappa v University of Canberra [2018] ACAT 108 at [41]

30.The issue before the Tribunal is whether the application is so lacking in substance that it should not proceed. The onus lies on the respondent to establish that it is. Importantly, this is not a moral judgement, nor a determination as to whether the applicant has grounds for general complaint. Rather, it is a consideration of whether the applicant’s claims, taken at their highest, can properly make out a claim under the Discrimination Act.

Matters not before the Tribunal

31.The respondent has contended that several allegations in the applicant’s points of claim were not in the complaint to the HRC and therefore are not properly before the tribunal. It is therefore necessary to carefully consider what matters were raised in the complaint.

32.The complainant used the standard form for making an application to the HRC.

33.In section D1 of that form the applicant was asked to identify the personal attribute that he says forms the basis of the alleged discrimination. This is the ‘protected attribute’ for the purpose of section 8 of the Discrimination Act. The applicant did not tick any box.

34.Section 2 of the form deals with “Area of discrimination”. Here, the applicant ticked a box stating “employment, including recruitment or unpaid work.” This suggests that the applicant is making a claim for discrimination in the context of employment pursuant to section 11 of the Discrimination Act. I consider this further below.

35.Section E of the form deals with complaints of sexual harassment, victimisation or vilification. In answer to “I believe I was”, the applicant ticked the “victimised” box. Further below, he then ticked “religious conviction”, indicating he believes he was victimised based on religious conviction.

36.Part F sets out space for the complainant to describe, in a more narrative form what happened. The applicant filled this in at some length and it if from this that I draw most of the information about the claim.

37.Having regard to this narrative of the claim, it is evident that at the time of making the complaint to the HRC, the applicant was claiming discrimination of the basis of religious conviction, as well as victimisation. He did not raise as a ground any complaint of disability, so complaints about that are not properly before the Tribunal.

38.It is also evident from the complaint form that the complaint was made against the School, and not the CC, which is not a party to these proceedings.

Discrimination in the context of employment

39.As I understand the claim, the applicant claims discrimination in the area of ‘employment’ on the basis that his engagement as a coach was a form of ‘unpaid employment’.

40.In this regard, section 11 of the Discrimination Act provides:

Employees—religious practice

It is unlawful for an employer to discriminate against an employee on the ground of religious conviction by refusing the employee permission to carry out a religious practice during working hours, being a practice—

(a)     of a kind recognised as necessary or desirable by people of the same religious conviction as that of the employee; and

(b)     the performance of which during working hours is reasonable having regard to the circumstances of the employment; and

(c)     that does not subject the employer to unreasonable detriment.

41.The applicant further says that coaching cricket is a form of penance through public service, and hence part of his religious practice, and that therefore by refusing him permission undertake a coaching role with the CC and/or offering roles only on Sundays, when the coaching would conflict with his religious activities, the respondent has refused him permission to carry out his religious activities.

42.For the limited purposes of the strike out, the respondent does not appear to have disputed that the coaching activities are a form of ‘religious practice’. Rather, the respondent says that the applicant was never employed by it, whether in a paid capacity or otherwise.

43.The Dictionary to the Discrimination Act defines ‘employer’ and ‘employment’ and ‘unpaid worker’ as follows:

employment includes—(a)work under a contract for services; and (b)work as a Territory employee; and (c)work as an unpaid worker

employer, in relation to an unpaid worker, means the person for whom the unpaid worker performs work.

unpaid worker means a person who performs work for an employer for no remuneration

44.There is no definition of ‘work’ in the Discrimination Act, nor in the Legislation Act 2001. The Macquarie Dictionary defines the term to mean, relevantly:

1.       Exertion directed to produce or accomplish something; labour; toil.

2.       That of which exertion or labour is expended; something to be made or done; a task or undertaking.

3.       Productive or operative activity.

45.The applicant says that the Tribunal should take a broad view of the categories of persons captured by the term ‘employee’. I agree that a broad view should be taken of the meaning of ‘volunteer’. Section 4AA requires as much, providing that:

Interpretation beneficial to people with protected attributes

This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—

(a)     the objects of this Act; and

(b) human rights under the Human Rights Act 2004.

46.He submits that he meets the definition of the ‘worker’ in the Work Health and Safety Act 2011. However, that definition expressly includes a ‘volunteer’.[4]

[4] Work Health and Safety Act2011 section 7(h)

47.Nonetheless, it seems evident from the definition of ‘employment’ that the Discrimination Act is attempting to capture all persons who perform some of labour or productive activity for an ‘employer’, whether paid or not. In my view, this encompasses volunteers, at least to the extent that they engage in an activity that could be described as ‘work’. Coaching may fall within this definition.

48.However, even allowing for such a broad definition, I am not convinced that the applicant meets the definition of an ‘unpaid worker’ in the Act for the purposes of this application, because the School is not his employer.

49.The School headmaster filed a witness statement that set out the relationship between the School and the CC. It provides, in part:

At [the School], sporting committee are run by volunteer parents to support participation in a variety of sports, including cricket. [The School] oversees the sporting committee through representatives, who are usually teachers, to ensure a proper balance exists between sport as cocurricular and the academic goals and general wellbeing of students.

The [Cricket Club] is an unincorporated association governed by a Committee. The Committee is run by volunteer parents and overseen by the [the School]. I confirm that the [Cricket Club] is a voluntary body.

50.While the Tribunal must treat with caution any evidence provided by way of statement during interim proceedings and without cross examination, this evidence is not controversial. The CC is an unincorporated but well established entity. It has a constitution that sets out the identity of members, how office holders and the committee members are elected, and how expenditure is authorised. Members elect committee members who in turn elect the executive. Coach nominations are “considered and decided” by the committee, having regard to a stated list of considerations.  In most cases, the School is not involved in the engagement of coaches, but there is an exception in the case of first and second elevens, where the Committee makes a recommendation to the School Headmaster. Other than this exception, and notwithstanding some oversight by the School, the CC is quite clearly a voluntary body established to facilitate the conduct of cricket by students at the School. It is not a part of the School and nor is it an agent of it.

51.Hence, I am satisfied that, while the possible exception of the coach of the first and second elevens, the School does not ‘employ’ the coaches or volunteers associated with the CC, and there is no basis upon which I could conclude that the volunteers associated with the CC, such as the applicant, are unpaid employees of the respondent.

52.This means that the applicant’s claim against the School for discrimination under section 11 of the Discrimination Act is doomed to fail.

The collusion ground

53.As I understand it, this is an allegation that the respondent, through its employees or agents, breached the confidentiality requirements of the conciliation agreement, and used the information gained through that process to prevent the applicant from volunteering with other, third party cricket organisations.

54.Unfortunately, the applicant does not set out how he says a “breach of the confidentiality agreement”, if established, would amount to an unlawful discrimination under the Discrimination Act. It appears that the applicant is arguing that the respondent, or its employees or agents, treated him unfavourably by disclosing the material in the conciliation agreement, and that they did so because of his religious conviction. Even if so, the conduct does not fall within section 11 of the Discrimination Act, as the respondent would not be “refusing the employee permission to carry out religious practice.”

55.It is possible that the act of disclosing the information, or colluding with others to prevent the applicant from coaching cricket, may amount to an act of victimisation within the meaning of section 68 of the Discrimination Act, as it arguably constitutes a “detriment”. If so, the evidence would need to establish that the School, or its employees or agents, were responsible, not just volunteers at the CC. The points of claim do not make this clear, but it would not be unusual for the Tribunal, in such a circumstance, to grant an applicant leave to amend his points of claim to make his position on this point clear, were this the intention.

56.In this case, however, there is no purpose to be served by such an amendment, as there is a more substantial problem. The collusion ground was not identified in the complaint to the HRC. Having considered the form, both in terms of the boxes the applicant ticked and his narrative complaint, I am satisfied this matter was not raised as including this complaint. In the absence of this ground being identified as a basis for the complaint and referred to the Tribunal pursuant to section 53A of the HRC Act, the Tribunal has no jurisdiction to consider or determine it.

57.The collusion ground must be dismissed.

The exclusion ground

58.As I understand this ground, it is that staff or other representatives of the School acted in such a way designed to alienate the applicant from the parents and the committee.

59.For the most part, as conceded by the applicant in the application, these matters appear to have been the subject of the previous proceeding. They cannot be raised again in this matter.

60.However, there is a new ground that does not appear to have been previously raised. The applicant alleges that the School has appointed a manager who acted so as to:

…alienate [the applicant] from the parents and committee communications, intercede when organising extra assistance for the students and otherwise report back to [School] staff on what [he] was doing.

The ground relates to the management practices of the CC. As set out above, the CC is not the respondent to these proceedings. This part of the claim is therefore doomed to fail.

61.For completeness, I have considered whether it is the case that the complaint can be read as a complaint against the CC, rather than against the School. This may have been what was intended.  The difficulty is that the complaint form names the School and not the CC. The HRC appears to have advised the applicant of the need to make a separate claim against the Club during the complaint process,[5] but he does not appear to have done this. There is nothing on file to indicate that the HRC involved the CC in the complaint or otherwise involved the CC in consideration of the complaint and therefore the Tribunal lacks the jurisdiction to hear such a complaint.

[5] Email from Julie Whitmore to the applicant dated 25 October 2019

62.Moreover, even were I able to conclude that the respondent was the CC, this does not assist the applicant. Section 31 of the Discrimination Act provides an effective exemption from Part 3 of the Discrimination Act for ‘voluntary bodies’:

Voluntary bodies

Part 3 does not make it unlawful for a voluntary body to discriminate against a person in relation to—

(a)     the admission of people as members of the body; or

(b)     the provision of benefits, facilities or services to people, whether the people are members of the body or otherwise.

63.The dictionary to the Discrimination Act defines a ‘voluntary body’ as follows:

“voluntary body” means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include —

(a)     a club; or

(b)     body established by a law of the Territory, the Commonwealth, a State or another Territory; or

(c)     an association that provides grants, loans, credit or finance to its members.

64.A ‘Club’ is in turn defined in the dictionary as being “a club that holds a club licence,” and a ‘club licence’ is defined by reference to section 20 of the Liquor Act 2010. The CC is not a ‘club’ within the meaning of the term as used in the exception to ‘voluntary body’. Consequently, its activities in relation to admission and provision of benefits, facilities and services, which includes making available opportunities to coach, would be excluded from the operation of the Discrimination Act.

65.What this means is that to the extent that applicant’s application raises complaints against the CC, it must fail.

66.Accordingly, this aspect of the application must be dismissed.

The character ground

67.This raises much the same issues as the collusion ground. The allegations, if substantiated, may amount to victimisation, but they were not the subject of the complaint to the HRC and they cannot be raised before the Tribunal now. They must be dismissed.

The offer ground

68.As I understand the applicant’s position, there are three possible aspects to this complaint:

(a)First, the making of the offer that lead to the conciliation agreement was itself discriminatory; and

(b)second, the agreement was not complied with; or

(c)third, the way the agreement was complied with was discriminatory.

69.The first ground may be disposed of quickly. The offer was made in the context of settlement negotiations. Settlement negotiations are not an “area of public life” which Part 3 of the Discrimination Act covers.

70.Moreover, any discussions that took part between the parties are confidential, without prejudice, and, being made on a without prejudice basis, would not be admissible in evidence in any case. This is made clear by section 52B of the Court Procedures Act 2004, which provides that:

Admissibility of information given at mediation

(1) Evidence of mediation material is not admissible in a proceeding before any of the following, except in accordance with the Evidence Act 2011, section 131 (Exclusion of evidence of settlement negotiations):

(a)a court;

(b)an entity authorised to hear and receive evidence;

(c)an entity authorised by the consent of the parties to hear evidence.

(2) Evidence of mediation material is not admissible in a proceeding under the ACT Civil and Administrative Tribunal Act 2008 unless all parties agree to the giving of the evidence.

71.Unless both parties waive this requirement, evidence of the discussions cannot be given to the Tribunal. The respondent has declined to agree that the evidence can be given.  In the absence of evidence, this aspect of the application is doomed to fail.

72.The second aspect may also be disposed of quickly. If the respondent alleges that the conciliation agreement has been breached, he may seek enforcement of it.

73.The third aspect of more complicated. It appears that what the applicant is really suggesting is that it is the way in which the agreement was put into effect that is really the substance of his concern – that is, by offering him coaching opportunities only on Sunday mornings, the School effectively “refused” him the permission to carry out a religious practice during working hours.

74.I understand that the School was a respondent to the agreement, notwithstanding its limited role in relation to the appointment of coaches. It has obligations to comply with the agreement. The applicant may, if the School has not complied, have remedies available to him in relation to its breach. However, in terms of the application of the Discrimination Act, the same problems as described above arise again. The respondent is not the applicant’s employer. The actions complained of do not fall under the kinds of ‘public activities’ that are regulated by Part 3 of the Discrimination Act. The application, as pleaded, cannot succeed.

75.I emphasise that this does not mean that the applicant’s complaints are necessarily without any merit. He is clearly aggrieved by events. But it does mean, from a legal perspective, that the matter is without substance because the allegations are not of a kind that can be considered or resolved under the HRC Act or the Discrimination Act.

Conclusion

76.It is a serious matter to strike out a proceeding under the Discrimination Act, and I do not make this decision lightly. I do not suggest that the applicant’s grievances are not genuinely held or without any merit. However, having regard to the points of claim, and the complaint to the HRC, the Tribunal is satisfied that the applicant’s complaint is lacking in substance, in that:

(a)the Tribunal has no jurisdiction to hear the collusion, exclusion or character grounds;

(b)the matters the subject of the offer ground were the subject of without prejudice communications and do not, in any case, arise in any ‘area of life’ to which the Discrimination Act applies;

(c)the decisions of the CC as to its membership and management are not amenable to review under the Discrimination Act as the CC is a voluntary body;

(d)while the applicant did raise allegations of victimisation with the HRC, the substance of those complaints as articulated in the points of claim is sufficiently different that the Tribunal does not have jurisdiction to hear them; and

(e)if the applicant believes that the conciliation agreement has been breached by the respondent, he is advised to seek advice on enforcement processes, or the setting aside of any previous orders.

Anonymity

77.In light of the personal information disclosed in reasons, the Tribunal has published them under pseudonyms.

Order

78.The Tribunal orders that the application be wholly dismissed under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..

Presidential Member H Robinson

Date(s) of hearing	14 September 2020
Applicant:	No appearance
Solicitors for the Respondent:	Ms E Shoemark, Sneddon, Hall and Gallop Solicitors