Bevege v Hizb ut-Tahrir Australia

Case •

[2016] NSWCATAD 44

•

04 March 2016

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Bevege v Hizb ut-Tahrir Australia [2016] NSWCATAD 44
Hearing dates:21 October 2015
Date of orders: 04 March 2016
Decision date: 04 March 2016
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Hitter, Senior Member
J Newman, General Member
A Limbury, General Member
Decision:

Unlawful discrimination in the terms of the provision of a service on the grounds of sex pursuant to section 33 (1) (b) of the Anti-Discrimination Act 1977 (NSW)

Catchwords: Less favourable treatment in the provision of a service
Unincorporated associations
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Associations Incorporation Act 2009 (NSW)
Corporations Act 2001 (Cmth)
Cases Cited: Waters v Public Transport Corporation (1991) 173 CLR 349
IW v City of Perth (1997) 191 CLR 1
Commonwealth v Humphries (1998) 86 FCR 324
Haines v Leves (1987) 8 NSWLR 442
New South Wales (Department of Education) v Purvis (2001) 186 ALR 69
OV & OW v Members of the Board of the Wesley Mission Council (2010) 270 ALR 542
Smith v Anderson (1880) 15 Ch D 247
Leahy v Attorney-General (NSW) (1959) 101 CLR 611
Jones v Bible Believer’s Church [2007] 148 FCR 276
Bradley Egg Farm v Clifford [1943] 2 All ER 378
Ward v Eltherington [1982] Qd R 561
Peckham v Moore [1975] 1 NSWLR 353
Baker v Jones [1954] 2 All ER 553
Smith v Yarnold [1969] 2 NSWR 410
Cooper v HR&EOC (1999)93 FCR 481
Elliott v Nanda (2001) 111 FCR 240
Category:Principal judgment
Parties: Alison Bevege (Applicant)
Respondents:
1.   Hizb ut-Tahrir Australia
2.   Uthman Badar
3.   Wassim Dourheihi
4.   Ashraf Doureihi
5.   Hamzah Quereshi
6.   Ismail al-Wahwah
7.   Public Forums Incorporated
Representation: A Bevege (Applicant in person)
File Number(s):1510236
Publication restriction:Nil

Reasons for decision

  1. This is a complaint of sex discrimination in the provision of services. The event leading to the complaint is the Applicant’s attendance at a lecture staged by Hizb ut-Tahrir Australia on 10 October 2014 (the lecture). The Applicant complains that she was required to sit in an area set aside for women and children, which was behind seating designated for male members of the audience.

  2. The Applicant complained about this to the President of Anti-Discrimination Board of NSW (the ADB). The matter was not resolved and the President referred the complaint to the NSW Civil and Administrative Tribunal (the Tribunal). In doing so the President referred a complaint of sex discrimination in the provision of goods or services pursuant to sections 24 and 33 of the Anti-Discrimination Act 1977 (NSW) (the ADA).

  3. The Tribunal’s reasons are as follows.

Complaint to ADB

  1. On 15 October 2014, five days after the Applicant attended the lecture, the complaint was lodged at the ADB. Correspondence was exchanged between the ADB, the Applicant and Hizb ut-Tahrir Australia as Respondent to the complaint. The Applicant asked the President to refer the complaint to the Tribunal on 20 March 2015. The complaint was received by the Tribunal on 5 May 2015.

The process leading up to the Hearing

  1. There are seven Respondents to the complaint before the Tribunal. The first respondent is Hizb ut-Tahrir Australia (R1).

  2. On 26 August 2015 the Tribunal granted leave to the Applicant to amend the complaint to include sections 52 and 53 of the ADA and made orders to join the following Respondents:

  1. Uthman Badar (R2)

  2. Wassim Dourheihi (R3)

  3. Ashraf Doureihi (R4)

  4. Hamzah Quereshi (R5)

  5. Ismail al-Wahwah (R6)

  6. Public Forums Incorporated (R7)

  1. None of the Respondents attended the case conferences held by the Tribunal in the lead up to the Hearing and none of the Respondents attended the Hearing itself. Correspondence was received by the Tribunal on the eve of the Hearing as follows:

  • Letter to the Tribunal dated 20 October 2015 from Hamzah Qureshi (R5) attaching a statutory declaration dated on the same day.

  • Letter to the Tribunal dated 20 October 2015 from Ashraf Doureihi (R4) attaching a statutory declaration dated on the same day.

  • Letter to the Tribunal dated 20 October 2015 from Wassim Doureihi (R3) attaching a statutory declaration dated on the same day.

  1. This comprises the only material provided directly to the Tribunal by any of the Respondents in the course of these proceedings.

  2. The material provided by R1 to the ADB is contained in the President’s Report and is as follows:

  • Letter to the ADB undated dated and received on 4 December 2014 from Ismail Alwahwah (R6) on behalf of R1 sent from email address [email protected].

  • Letter to the ADB dated 13 March 2015 from Ismail Alwahwah (R6) on behalf of R1 sent from the same email address of [email protected].

The Hearing

  1. A Hearing was held by the Tribunal on 21 October 2015.

  2. The Applicant (AB) attended the Hearing in person and represented herself. The Respondents were not present at the Hearing and were not represented.

  3. At the Hearing the Tribunal made the following orders for the provision of additional material:

  • Four weeks for AB to provide additional submissions addressing the liability of each of the Respondents;

  • Four weeks for the Respondents to reply to those submissions; and

  • Leave to issue a summons to Ismail Alwahwah (R6) for names of R1’s leadership group.

  1. Additional material was received by the Tribunal from AB as follows:

  • Correspondence from AB dated 22 October 2015 enclosing a summons issued to Ismail Alwahwah (R6) as the contact person for R1.

  • Further correspondence from the AB dated 29 October 2015 in relation to the summons issued to Ismail Alwahwah (R6), which was served on 21 October 2015.

  • Correspondence from AB dated 18 November 2015 attaching submissions in relation to the liability of each of the Respondents and supporting evidence.

  • Correspondence from AB dated 19 November 2015 clarifying some matters contained in the material provided on 18 November 2015.

  • Correspondence from AB dated 4 December 2015 enclosing a statutory declaration from AB in relation to service of documents on the Respondents.

  1. No material was received by the Tribunal from any of the Respondents after the Hearing.

Should the Tribunal proceed in the absence of the Respondents?

  1. The Tribunal had to determine whether it proceeds with the Hearing in the absence of the Respondents. The Tribunal sets out below its understanding of the actions taken to bring notice of the complaint and the Tribunal proceedings to the Respondents.

Actions taken to bring notice of the complaint the Hearing to the Respondents

  1. AB sought to obtain by way of summons the current addresses of the Respondents as follows:

  • Summons issued to the Roads and Maritime Service (the RMS) on 11 June 2015 to produce the current addresses of

Ashraf Doureihi

Wassim Doureihi

Uthman Badar

Hamzah Qureshi

Sheikh Ismail al-Wahah, also called Anas al-Wahwah

  • On 24 June 2015 the RMS produced the addresses of the following Respondents:

Ashraf Doureihi

Wassim Doureihi

Hamzah Qureshi

  • Summons issued on 16 July 2015 to Public Forums Incorporated to produce a list of Committee members of Public Forums Incorporated as it was on 10 October 2014 and as it was on 15 July 2015 including the names and addresses of those Committee members. In response Public Forums Incorporated produced the name Ashraf Doureihi and his address.

  • Summons issued to the Commissioner of Police on 21 July 2015 to produce from the COPS database the current addresses of Uthman Badar and Ismail al-Wahwah also known as Abu Anas al Wahwah. On 22 July 2015 the summons was retuned with addresses of those Respondents.

  1. On 26 June 2015 officers from the Sheriff of NSW attended the address of the venue where the lecture was held at 925 Canterbury Road Lakemba on two occasions but there was no response and the door was locked. Officer calling cards were left at the premises without any response. On 7 August 2015 there was attempted service on Uthman Badar (R2). The notice stipulates that the Sherriff’s officers attended the given address and were advised by occupant, and mother (…….), that her son is in Pakistan indefinitely. It says that the “occupant was able to confirm that the defendant, Uthman Badar, is a media spokesman for Hizb ut – Tahir Australia”.

  2. On the Tribunal file is a copy of a form “Form A2” from the Office of Fair Trading NSW dated 27 June 2013. This is an application for registration of an incorporated association. The Association details are left blank but the official address is 1/925 -941 Canterbury Rd Lakemba. This is the address of the venue where the lecture was held. The details of the first Public Officer states “Ashraf Doureihi”, who Public Forums Incorporated nominates as their Public Officer. The Constitution, objects and principal activity is noted as the “Fair Trading model constitution” and “To educate the general public about Islam and its various systems which govern life”. It notes its principle activity as “5. Education/employment/training/research”. The contact details of the person lodging this document are noted to be Mr. Anas Alwahwah (R6) with a street address and a private email address.

  3. On the Tribunal file there are copies of emails sent by AB to Uthman Badar (R2) to the email address of [email protected]. This email address was used by the first respondent to communicate with the ADB. There is an email dated 13 July 2015 advising of the next date that appearance is required before the Tribunal on 15 July 2015 at 12 noon. There is another email sent to the same address dated 29 July 2015 which advises of a return date for a summons issued by the Tribunal of 5 August 2015 which includes the following:

“The following spokesmen of Hizb-ut Tahrir Australia are also required to provide their current postal addresses to the NCAT registry for the filing and serving of documents.

This is because the applicant seeks to expand the scope of the case to them personally and severally liable for the actions of their unregistered political party Hizb-ut Tahrir Australia.

Uthman Badar

Wassim Doureihi

Ashraf Doureihi

Hamzah Qureshi

Ismail al-Wahwah also called Abu Anas al-Wahwah”

  1. An email sent by AB dated 6 August 2015 to [email protected] includes the following:

“The following parties are hereby notified that the applicant seeks to name them as respondents in the case.

Uthman Badar

Wassim Doureihi

Ashraf Doureihi

Hamzah Qureshi

Ismail al-Wahwah also called Abu Anas al-Wahwah

They are required to read the attached information carefully and to attend the case conference is on 26 August.

Public Forums Incorporated is notified that the applicant also seeks to name it as a respondent in the case.

A representative from Public Forums Incorporated is required to read the attached material carefully and to attend the case conference.

Each party is required to provide a current postal address to the NCAT Registry for the purpose of receiving documents relating to the case.

Attached as PDF files are:

*a scan of the original complaint to the Anti-Discrimination Board (President’s summary of complaint)

*a scan of the application to expand the number of respondents

The respondent, Hizb ut – Tahrir Australia, is required to read the information attached carefully and to send a representative to the case conference”

  1. There is a print out from the website which is dated 6 August 2015. It includes the under the heading “ABOUT” it reads “Hizb-ut Tahrir is a political party whose ideology is Islam, so politics is its work and Islam is its ideology”. The Facebook page advertises an event to be held on “This Saturday the 8th @ 2pm, at the KCA centre (925 Canterbury road. Lakemba).

  2. There is another print out of this Facebook site which adds the following post to the one noted directly above.

“Alison Bevege Attention: Hizb ut Tahrir Australia

Re NCAT Equal Opportunity Division Case 1510236 06/08/2015

This is a supplementary letter to affirm to all parties that the third case conference is on at NCAT, Equalo Opportunity Division, Level 10 John Maddison Tower, 86-90 Golburn Street at 12 noon on August 26.

The following leaders of Hizb ut Tahrir Australia are hereby notified that the applicant seeks to name them as respondents in the case.

Uthman Badar

Wassim Doureihi

Ashraf Doureihi

Hamzah Qureshi

Ismail al-Wahwah also called Abu Anas al-Wahwah

They are required to read the attached information carefully and to attend the case conference is on 26 August.

Public Forums Incorporated is notified that the applicant also seeks to name it as a respondent in the case.

A representative from Public Forums Incorporated is required to read the attached material carefully and to attend the case conference.

Each party is required to provide a current postal address to the NCAT Registry for the purpose of receiving documents relating to the case.

Yours sincerely

Alison Bevege, applicant”.

  1. There is a printout of a post AB made which contains a copy of the email dated 6 August 2015 sent to [email protected] with attachments to a Facebook page for Hamzah Qureshi which also states “You and Hamzah Qureshi aren’t connected on Facebook. Works at Hizb ut –Tahrir. Lives in Sydney Australia”.

  2. There are printouts of AB posting the same message with attachments to the Facebook pages of Wassim Dourehihi (R3), Uthman Badar (R2), and Ismail Alwahwah (R6).

  3. The Tribunal has also seen documents from with copies of tweets to Ismail Alwahwah (R6), Uthman Badar (R2) and Hamzah Qureshi (R5), all containing a screen shot of the email dated 6 August from AB with the message “re: letter. The attached documents referred to can be viewed at NCAT 86-90 Goulburn Street, Sydney”.

  4. The Tribunal’s letter of 27 August 2015 was sent to all the Respondents at the addresses held on the Tribunal file for each Respondent.

The letter to Hizb ut –Tahrir was sent to the venue and place at which this Respondent holds events of a similar kind, which is at 925-941 Canturbury Road, Lakemba, NSW 2195.

The Tribunal addressed the correspondence to Hamzah Qureshi (R5), Sheikh Ismail al-Wahwah (R6), Ashraf Doureihi (R4) and Wassim Doureihi (R3) to the street addresses obtained by summons. The Tribunal’s letter to Uthman Badar (R2) was sent to the address for Hizb ut –Tahrir Australia, that is 925-941 Canturbury Road, Lakemba, NSW 2195. Correspondence to Public Forums Incorporated was also sent to that address.

  1. On the morning of the Hearing, the Tribunal tried to phone the Respondents using contact details held on the Tribunal file to ascertain whether they were intending to attend the Hearing but were not able to reach anyone.

  2. As noted earlier, the Tribunal received correspondence from Wassim Doureihi (R3) and Hamzah Qureshi (R5) in response to its letter of 27 August 2015.

  3. The letter dated from Ashraf Doureihi (R4), who signs in the capacity of Public Officer of Public Forums Inc (R7), he says “It may interest you that in speaking to the hirers I have become aware that some of respondents have not received this letter and are therefore unaware of NCAT’s directions”. R4 does not specify which of the Respondents he is referring to.

  4. Ismail al-Wahwah (R6) previously responded to the ADB’s correspondence on behalf Hizb – ut Tahrir Australia using the email address [email protected]. AB provided notice to all the Respondents of the application to join the additional Respondents using this email address.

Decision to proceed to determine the complaint

  1. The Tribunal considered that where there might be some doubt about the extent to which some of Respondents are aware of the proceedings, it is only in relation to Uthman Badar (R2). His mother told the NSW Sherrif’s Office that he is living in Pakistan. As far as the Tribunal is aware, there has been no contact from him throughout the proceedings before the ADB or the Tribunal. However AB sent correspondence to R2 by electronic means to addresses that he has been associated with, which will be described in more detail below. On that basis the Tribunal has proceeded on the basis that R2 is aware of the complaint and these proceedings.

  2. AB did obtain contact details of all of the Respondents by way of summons and went to considerable lengths to notify them of the proceedings and the case against them. Although AB notes in her submissions to the Tribunal on the question of the liability of each of the Respondents that some registered mail that she sent to Respondents was returned to her, none of the correspondence sent by the Tribunal was returned to the Registry. Most if not all documents were also sent by electronic means.

  3. It is reasonable to conclude if “some” of the Respondents had not received the Tribunal’s letter of 27 August 2015 and were unaware of the Tribunal’s directions, that in the process of R4 speaking to them, it is likely that those Respondents would have subsequently become aware that they were Respondents in these proceedings. It is hard to imagine what more AB or the Tribunal could have done to bring this matter to the attention of all the Respondents.

  4. On this basis the Tribunal has formed the view that the lack of attendance at case conferences and at the Hearing itself was not because the Respondents were unaware of the proceedings before the Tribunal. The Tribunal proceeded to determine the complaint on the basis that the Respondents were notified of the proceedings and did have the opportunity to participate to a greater extent if they wished to. The Tribunal is satisfied that the Respondents were aware of the complaint made by AB against them and did have an opportunity to respond to it in these proceedings.

  5. The Tribunal has determined this complaint on the basis of the following:

  • The material contained in the President's Report;

  • Evidence relied on by AB provided to the Tribunal and served on the Respondents prior to the Hearing;

  • Oral evidence given by AB at the Hearing;

  • Evidence relied on by AB at the Hearing;

  • Correspondence with attached statutory declarations received by R3, R4 and R5 dated 20 October 2015; and

  • Additional evidence and submissions provided by AB and served on the Respondents following orders made at the Hearing.

Applicant’s evidence

  1. AB described herself to the Tribunal as an unemployed journalist. She attended the lecture, which was held at 925 Canterbury Road, Lakemba (the venue). The lecture was advertised and promoted by the first Respondent, Hizb ut-Tahrir Australia. When she arrived at the venue, AB was told to sit in a section of the audience that appeared to be designated for women and children. This was behind a section of the audience that looked to be designated for men. AB believed she either had to comply with the direction to sit in the women's section or leave.

Respondent’s Evidence

  1. The Tribunal had before it two letters written by Ismail Alwahwah (R6) on behalf of the first Respondent to the ADB. These letters were contained in the President’s report. The Tribunal understood from these letters that the first Respondent agreed that the audience attending the lecture was separated along gender lines in accordance with relevant custom and beliefs, but this was said to not have been enforced on AB and AB could have sat where ever she wanted to at the lecture.

  2. Letters attaching statutory declarations from R3, R4 and R5 were received by the Tribunal the day before the Hearing in response to the Tribunal’s letter dated 27 August 2015 to all of the Respondents. This letter gave notice of the orders made by the Tribunal on 26 August 2015, which joined the Respondents R2, R3, R4, R5, R6 and R7 to these proceedings. The Tribunal’s letter also gave notice of leave to amend the complaint to include claims pursuant to sections 52 and 53 of the ADA. The Tribunal’s letter advised that further witness statements upon which the Applicant would seek to rely are to be filed and served by 4:00pm on 16 September 2015; that the matter is set down for hearing on Wednesday 21 October 2015; and that leave is granted to any party to seek that the matter be listed for further directions.

  1. In their correspondence to the Tribunal, R3, R4 and R5 say respectively that they wish to have the matter dealt with as swiftly as possible. Each of them say they do not understand why they have been named as a Respondent to these proceedings. All three Respondents ask the Tribunal to dismiss the complaint.

  2. Hamzah Quershi (R5) says in his statutory declaration that “I sat at the speaker’s podium and moderated questions at the event”. He goes on to say “I fielded numerous questions from Ms Bevege but she never raised any questions about the seating arrangements”.

  3. Ahraf Doureihi (R4) says in his statutory declaration that “I sat in the audience at the front of the hall and did not have any discussions with anybody about seating arrangements”.

  4. Wassim Doureihi (R3) says in his statutory declaration that “I did not have any discussions with anybody about seating arrangements”.

Statutory Framework

  1. The ADA contains provisions which govern whether an unlawful act of discrimination has taken place in the provision of goods or services.

  2. Section 33 of the ADA provides

  1. It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:

  1. by refusing to provide the person with those goods or services, or

  2. in the terms on which he or she provides the person with those goods or services.

  1. The Section 24 of the ADA defines discrimination of the ground of sex to mean:

  1. A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator:

  1. on the ground of the aggrieved person's sex…., treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treat or would treat a person of the opposite sex…, or

  2. requires the aggrieved person to comply with a requirement or condition which a substantially higher proportion of persons of the opposite sex,….is unable to comply.

  1. Section 4 of the ADA provides the definition of "services" as including

(f)    services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

  1. Section 52 of the ADA provides

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

  1. Section 53 of the ADA provides

  1. An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

  2. If both the principal or employer and the agent or employee who did the act are subject to any liability arising under the ADA in respect of the doing of the act, they are jointly and severally subject to that liability.

  3. Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

  4. For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

Issues to decide

  1. The Tribunal must decide on the balance of probabilities whether:

  • The lecture amounts to the provision of a service as defined by the ADA;

  • If the lecture does amount to the provision of a service, whether AB was treated less favourably than a man was, or would have been, treated in the same circumstances, or in circumstances not materially different. And if so, was one of the grounds of any less favourable treatment AB's sex, a characteristic that appertains generally to women, or a characteristic that is generally imputed to women;

  • If the conduct complained of is found to be unlawful under the ADA, whether there are any exceptions provided by the ADA apply; and

  • If an unlawful act of discrimination has been found to have occurred and no exceptions apply, the extent to which liability, if any, can be attributed to each of the Respondents.

  • If unlawful discrimination is found to have occurred, what remedies should be applied pursuant to section 108 of the ADA.

Legal status of the Respondents

  1. In material provided to the Tribunal, it is shown that Hizb ut-Tahrir Australia (R1) refers to itself as an “international political party with a franchise in Australia”. There is no evidence that establishes R1 as a legal entity defined by Associations Incorporation Act 2009 (NSW) or the Corporations Act 2001 (Cmth). The Tribunal concludes that it must treat R1 as an unincorporated association for the purposes of these proceedings.

  2. The seventh respondent is Public Forums Incorporated (R7), which is a legal entity as defined by the Corporations Act 2001 (Cth). It has an ABN which is noted on its letterhead. Its address is 1/925-941 Canterbury Road Lakemba, which is the address where the lecture was held. By correspondence received by the Tribunal from R7, written by the Public Officer Ashraf Doureihi (R4), he says Public Forums Inc “hired the venue to some of the respondents listed in the (letter) for the event in question”.

Does the lecture amount to the provision of a service?

  1. The identification of a service is a question of fact: Waters v Public Transport Corporation (1991) 173 CLR 349. The High Court has held that the definition of services in the context of discrimination law should be interpreted liberally however the service in question should be identified with reasonable precision: IW v City of Perth (1997) 191 CLR 1.

  2. Promotional material (found at page 14 of the President's report) published by R1, advertises the lecture in the form of an electronic flier. The heading of this flier reads:

"THE WAR TO END A BLESSED REVOLUTION

THE POLITICS AND PLOTS OF THE AMERICAN LED INTERVENTION IN IRAQ AND SYRIA"

  1. The details provided at the bottom of the flier read:

"FRIDAY 10TH OCTOBER, 7PM

KCA CENTRE [925 CANTERBURY RD, LAKEMBA]

[MAGHRIB TO BE PRAYED AT 7.00PM]

FOR ENQUIRIES CALL HAMZAH QURESHI …"

  1. AB provided the ADB with screen shots of other promotional material for the lecture which advertises the lecture as a "public lecture" (page 15 of the Presidents Report).

  2. In his letter to the ADB dated 13 March, 2015 signed by R6 on behalf of R1, he states that

"the lecture was conducted on private premises. Although the lecture was rightly open to the public, we still reserved the right to refuse entry to any person we deemed contrary to the safety or efficacy of the proceedings".

  1. Section 4 of the ADA provides the definition of "services" as including

(f)    services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

  1. The prohibition of unlawful discrimination in the provision of services as defined by Section 4 (f) of the ADA clearly extends to private premises which are frequented by the public such as shopping centres and restaurants regardless of whether there may be a right to refuse entry in some circumstances: Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561. The lecture was held on private property but it was open to the public and as such the Tribunal finds that the lecture was the provision of a service within the meaning of section 4 (f) of the ADA.

Terms of the provision of the service

  1. AB told the Tribunal that she was interested in attending the lecture because the topic related to the politics of the war in Syria. AB said she was thinking of writing an opinion piece for a media outlet and was planning to ask questions of the speakers. AB said she was "scared" to attend the lecture on her own so she arranged to go with a male friend (SR). AB says she dropped SR at the venue while she went to park the car. When AB arrived at the venue, SR was waiting for her near the entrance. AB walked in and was met by an unidentified male (M1) who asked her whether she was a journalist. AB says she replied that she was not a journalist because at the time she was not representing any particular media outlet. Nevertheless M1 told her that no photos were permitted and AB understood that was the case. AB kept walking further into the room and noticed that men were sitting in a block of seating at the front of the room and women were sitting in a separate block of seating behind them. AB said she noticed that there were vacant seats in the block of seating where the men were sitting.

  2. AB was then met by an unidentified woman (W1), who directed her to sit in the section of the audience designated for women and children. AB told the Tribunal that she said to W1 that she did not want to sit in the section designated for women because she wanted to sit closer to the stage. She said that she could see that there were empty seats further to the front of the room where men were sitting and asked "why can't I sit at the front?" W1 said to her "because that's how we organized it". In the evidence AB gave the Tribunal, she said the identity of M1 and W1 were not made known to her at the time or subsequently, but they "looked like they were in charge".

Evidence of SR

  1. SR provided a statutory declaration dated 11 September 2015. AB did not seek to lead further evidence from SR at the Hearing, who was overseas at the time but available by phone if required. SR’s statutory declaration states:

"I entered the room first, separately from my friend Alison then I waited at the entrance till my friend Alison came in pretending not to know my friend. BUT I kept a extremely close eye at my friend at all times (which I always do).

When Alison walk in the room the woman at the door told her to go to the back of the room. Then Alison told the woman (there was a couple of men too) that she wanted to sit in the front of the room. Then I saw Alison arguing with the woman about the seating arrangement. Then the woman said to her "brother at the front and sisters at the back.

My friend Alison been a journalist she had notepad and her IPhone with her. Also the man inside the door asked Alison if she was from the media, to which she replied that she used to work as a journo but I am not working now, but she might write an opinion piece, she was also asked not to take any photographs. There was also a sign up not to take photographs. So we didn't. But my friend had her voice recorder on and was very much ready to start.

I went to the front of the room where seating was obviously purposely separated and was watching my friend Alison's every move.

Then Alison walked a bit more in, a woman gestured told her to go to the back of the women's section and she again argued with her too. (Alison was desperately wanted to sit at the front of the room but was denied twist) then she sat at the front of the back women's section when all this was happening my eyes were closely monitoring Alison's every move. Then I looked directly at the back where Alison was reluctantly sitting at the back with rest of the woman mostly covered in Black burka head to toe."

  1. The Tribunal asked AB whether she heard the statement "brothers at the front and sisters at the back". AB said she did not recall that being said nor did she hear any announcement about seating arrangements generally. AB said that she expected the seating to be separated along gender lines but thought that it would not apply to her because she did not subscribe to those beliefs. AB said no-one explicitly said to her that she was not permitted to sit in the men's section. However she felt this was the strong implication from the conversation she had with W1. AB could see no women sitting in the men's section, and there were no signs or other visible directions as to seating arrangements, or any other indication that women could sit in the men's section if they wanted to. AB said that she believed she either had to sit in the women's section or leave.

  2. In the letter from R6 on behalf of R1 to the ADB received on 4 December 2014 he states:

"Requesting her to take a seat in the Women's Section alongside other women as she entered the venue was not a compulsory imperative. Rather, it was a mere request; it was, however, open to her to sit anywhere she wanted. This protocol has been followed at similar past events where some women have chosen to sit outside the women's section and even sat at the front in the men's quarter. While this is not normal practice, as Muslims choose to adhere to their culture of segregated seating, we point this out for clarity purposes that what was put to Ms Bevege was a request, not a compulsory direction."

  1. In R6’s letter to the ADB dated 13 March 2015 he states:

"The complainant asserts she was obliged to sit in the back section with other women and children, but this is not true as she would have been allowed to choose her own seat selection had she requested. She was advised as to the seating arrangements by a chaperone at the event, and she made no protestations at the time about such arrangements"

  1. There is no evidence before the Tribunal as to whether R6 was present during the conversation about seating arrangements between W1, who R6 refers to as a “chaperone”, and AB. R3, R4 and R5 say in their statutory declarations that they did not discuss the seating arrangements with anyone.

  2. R6's assertion that AB did not complain about the seating arrangements at the time is at odds with the evidence given by AB at the Hearing and SR in his statutory declaration. SR says that he saw AB arguing with a woman about the seating arrangements and heard this woman explain to AB the direction to sit in the section designated for women. SR's evidence is consistent with AB's version of events.

  3. The Tribunal has found the evidence provided by SR and AB about discussions that took place between AB and WI in relation to seating arrangements at the lecture to be credible. The Tribunal accepts that AB did challenge W1 about why she must sit in the section designated for women and children and did so because she wanted to sit in a vacant seat closer to the front of the room.

  4. The Tribunal also accepts the evidence of AB that she was apprehensive in attending this event. On this basis it is understandable why AB did not seek to press the issue of seating arrangements further with W1 or any other organizers of the event at the time. The Tribunal accepts that AB did communicate that she wanted to sit nearer to the front of the venue in the section designated for male members of the audience and that she felt that she either had to comply with the direction to sit in the women's section or leave.

  5. It has been held that the meaning of the expression the ‘terms of the provision of a service’ are the terms under which the service in question is provided. In the case of Waters v Public Transport Corporation (1991) 173 CLR 349, it was held that what was required, was ‘discrimination’ on the terms on which the goods or services are provided, which were the terms that the users of the services in question must comply.

  6. The Tribunal finds that the direction given by W1 to AB to sit in the women's section was a term of the service provided (the lecture) and AB did have to comply with this term in order to receive the service (or in other words attend the lecture). The Tribunal has therefore determined that the direction given to AB to sit in the women’s section of the audience was a term on which the service was provided within the meaning of section 33 (1) (b) of the ADA.

Did the direction to sit in the women's section constitute less favourable treatment?

  1. In this complaint there is no suggestion that there was a requirement or condition that AB could not comply with because of her sex. This complaint is whether there has been direct discrimination on the grounds of sex in the terms of the provision of a service, which are the seating arrangements for the lecture.

  2. It is unlawful to provide a service that discriminates against a person on the grounds of sex by providing that service on certain unfavourable terms: section 33 (1) (b) of the ADA.

  3. The identification of less favourable treatment is a factual inquiry as to the treatment received: Commonwealth v Humphries (1998) 86 FCR 324. The treatment must be objectively less favourable than the treatment of the comparator: Haine v. Leves (1987) 8 NSWLR 442.

  4. The service provided was a lecture. The Tribunal has found that term under which that service was provided included the seating arrangements, and in particular, that women must sit in the section of the audience designated for women and children. The Tribunal must decide whether these seating arrangements were objectively less favourable for women than the seating arrangements for men in circumstances that were the same or not materially different. This requires a factual inquiry having regard to certain aspects of the venue such as the size of the room, the sightlines to the stage and screen, and factors could have impacted on the ability of the audience to hear the speakers.

Was it less favourable to sit in the women’s section?

  1. The photo of the audience at the lecture at page 17 of the President's Report shows a block of seating where men were sitting was at the front of the room and women were sitting in a block of seating behind them. The two blocks of seating were separated by an aisle. The question for the Tribunal to determine is whether the block of seating behind the men's section was objectively less favourable than the seating in the men’s section.

  2. A denial of a benefit can also amount to less favourable treatment if it would have been provided to someone of a different status from that of the complainant: New South Wales (Department of Education) v Purvis (2001) 186 ALR 69.

  3. Haines v. Leves (1987) 8 NSWLR 442 is a case involving a 14 year old high school student who lodged a complaint of sex discrimination against the Minister for Education and others, on the basis that her high school, which was for girls only, did not offer access to industrial arts subjects which were available to her twin brother at the adjoining boy's high school. Street CJ said:

….whilst it is clear enough that the curricula as between these two high

schools do differ, mere difference is not enough. It must be shown that the

difference is detrimental to the party complaining.

The position might, perhaps, be succinctly stated that, where the

Department segregates pupils coming from within a local community into

single sex schools with differences in their curricula, it does so at the very

distinct risk that a case might be established to the satisfaction of the Tribunal

that the differences in the two curricula result in less favourable treatment to

a pupil at one in relation to pupils at the other; this could be regarded by the

Tribunal as involving unlawful discrimination.

  1. The photograph of the room where the lecture was held depicts a fairly large room. The seating is not tiered and is all on the same level. There is no evidence before the Tribunal of how many people were in the audience or the actual dimensions of the room, however from the photograph it looks as though that the room is likely to have held about 100 people or more. There is also no evidence of how high the stage was off the ground in comparison the seats in the audience.

  2. It is common sense, particularly in venues of larger dimensions, especially where the seats are all on the same level, that seating at the front where it is closer to the stage and presenters, will generally be considered more favourable than seating at the back. Where there is allocated seating or a price structure for allocated seating at a venue such as this, most often the seats closer to the stage or where the performance is being conducted are more sought after and can command a higher price. Even where there is no price structure, the seats with the better view of the performance are usually considered to be better seats.

  1. The issue for the Tribunal to determine is whether being required to sit in a section at the rear of the room constitutes less favourable treatment in the terms of provision of the service (the lecture).

  2. It may be that some members of an audience might prefer to sit at the back of the room. This is a subjective consideration based on the preference of an individual member of an audience. All of the seats at the front of a venue may be reserved or taken and people who may want a seat further to the front may not be able to find one that is vacant. But that does not take away from the fact that seats at the front of a venue, in an objective sense, will generally offer a better view of the performance than the seats behind them, especially where the room is of a certain size and the seating is not tiered and/or where the stage is not very high off the ground.

  3. On the basis of the evidence available to the Tribunal about the venue, including the layout and size of the room, the Tribunal finds that the seats in the men’s section did offer better seats than the seats in the women’s section because those seats were closer to the stage, speakers and the screen.

  4. When AB arrived at the lecture she said that she saw that there were available seats at the front of the venue in the men’s section and she wanted to sit in one of those seats but was not able to because she was directed to sit in the women’s section. That section was further away from the stage, speakers and the screen.

Comparator

  1. In determining whether there has been direct discrimination the Tribunal must compare the treatment afforded to AB with the treatment afforded to male attendees of the lecture in circumstances that are the same or not materially different. In the case of this complaint, there is an actual comparator and that is SR, who arrived at the lecture just shortly before AB.

  2. SR says he found a vacant seat in the men’s section. At approximately the same time, when she arrived AB could also see vacant seats in the men's section. SR was able was able to sit in the men’s section, which was closer to the stage, screen and the presenters but AB was not able to do so because she is a woman. The Tribunal accepts this was the case.

  3. The Tribunal is satisfied that the direction given by W1 to AB to sit in the women's section amounts to discrimination on the grounds of sex within the meaning of section 33 (1) (b) of the ADA and unless any exceptions apply, it will constitute an act of unlawful discrimination on the grounds of sex in the terms of the provision of service.

Does any exception apply?

  1. R6 on behalf of R1 in his letter to the ADB dated 14 December 2014 says that:

"Firstly, the separation between men and women in Islamic gatherings is not limited to Muslim groups or mosques; rather it is a part of Islam, and Muslims globally are adhering to this practice through choice as part of their belief and culture"

  1. R6 on behalf of R1 also writes to the ADB dated13 March 2015:

"The seating arrangements were organized in a way we believed most effectively allows for the functioning of the event. The presence of women and children, and the noise that necessarily results from a child's presence, necessitates seating away from the speakers. More importantly, having women and children closest to the fire exits is a safety priority we take very seriously.

Even if it was decided to organize the seating arrangements as they were on purely religious grounds - which it was not - what right do non-adherents to the faith have to dictate the practice of another's faith? Unless the state would like to enter the realm of dictating the private religious affairs of its citizens, the complainant's claim should be rightfully dismissed as Islamaphobic hate.

There is no doubt the separation of men and women is a fundamental consideration in Islam. A visit to any mosque in the world will reveal the fact women are almost entirely positioned behind the men. Although a private hall is not a place of worship, which is why it would be acceptable to alter seating arrangements according to practical needs - and has been done in the past by Hizb ut - Tahrir – the basic division between men and women is still sought given its philosophical basis in Islam. But to extend the argument and suggest this equates to discrimination against women is an affront to Islam and its adherents, especially to Muslim women.

The charge could just as equally be made that positioning men in front of women is discrimination too. Insisting on the moral authority if the parent is discriminating against children. Respecting our elders is discriminating against those younger in age. There is no end to this absurdity."

  1. The respondents bear the onus of proving any defence or exception that might apply: the ADA, s 104.

  2. Section 56 (d) provides an exception for religious bodies and relevantly states:

Nothing in this Act affects:

…

(d) any other act or practice of a body established to propagate religion that conforms to the doctrine of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

  1. The respondents must show that the conduct comprises of an act or practice of a body established to propagate religion that either conforms to the doctrines of that religion or alternatively, is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

  2. This exception was considered by the New South Wales Court of Appeal in relation to a claim by a homosexual couple against the Wesley Mission who refused their application to foster children because they were homosexual in the case of OV and OW v Members of the Board of the Wesley Mission Council (2010) 270 ALR 542.

  3. Basten JA and Handley AJA considered the proper construction of section 56(d) of the ADA and made the following comments:

The primary concept is of an "act or practice" of a particular kind of body, which has one of two characteristics or effects. For the purposes of the first limb, the act or practice had to be judged against "the doctrines of that religion" to determine conformity or otherwise. In respect of the second limb, the act or practice had to be judged against the religious susceptibilities of the "adherents of that religion" to assess the likelihood of injury absent such a practice.

  1. Their Honours went on to say that this construction necessarily invites the questions: "established by whom" and to "to propagate what religion".

  2. Leaving aside for the moment the legal status of R1, the Tribunal must consider whether R1 or R7 can be characterised as a religious body for the purposes of section 56 (d) of the ADA; and if so, can a finding be made that it was established to propagate certain beliefs, which include not just gender segregation of seating at events that is less favourable for women.

  3. It is noteworthy that there is evidence before the Tribunal where R1 describes itself as a political party.

  4. The Respondents bear the onus to establish that R1 and/or R7 was established to propagate a religion. The Tribunal does not have any evidence before it that establishes this fact.

  5. The responses from R1 to the ADB make it clear that the lecture was organized in the context of religious or cultural beliefs founded in Islam, but also specifically said that the seating arrangements were not organised on religious grounds. R1 says that gender separation in Islamic gatherings is not limited to Muslim groups or mosques "but part of Islam and Muslims globally are adhering to this practice through choice and as part of their belief and culture". Furthermore, R6 on behalf of R1 said to the ADB that AB would have been allowed "to choose her own seat selection had she requested". This indicates that the separation of seating for men and women at the lecture was not necessary in order to avoid injury to the religious susceptibilities of adherents to the Islamic faith who were also attending the lecture.

  6. The Tribunal therefore finds that the exception contained within section 56 (d) of the ADA does not apply to R1 or to R7 and is satisfied that no other exception provided under the ADA applies.

The question of liability

  1. The Tribunal is treating R1 as an unincorporated association, which by definition includes any group of persons who have agreed to join together in the pursuit of one or more common objects or purposes including religious or political beliefs: Smith v Anderson (1880) 15 Ch D 247.

  2. Unincorporated associations are not legal entities: Leahy v Attorney-General (NSW) (1959) 101 CLR 611 and are essentially an aggregate of all its members at a particular time. The lack of legal entity status causes difficulties in the conduct of legal proceedings. A body must be incorporated and have some form of legal status before an order can be made against it: Jones v Bible Believer's Church [2007] 148 FCR 276.

  3. Section 33 (1) of the ADA specifies that

"It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the grounds of sex".

  1. An unincorporated association cannot hold the status of a "person" for the purposes of these legal proceedings but they are usually administered by a committee comprising of certain members of the association. Where a committee is formed, it is the committee members who are often personally responsible for torts committed in the name of the association: Bradley Egg Farm v Clifford [1943] 2 All ER 378. Committee members are liable by virtue of the fact they are members of that committee, whether they were present at the time of the particular conduct or activity: Ward v Eltherington [1982] Qd R 561.

  2. In the case of Peckham v Moore [1975] 1 NSWLR 353, Peckham was engaged to play football with an association for three years. In one of those years he was injured at training and claimed worker's compensation. His first action against the club was not successful because it was not a legal person capable of being sued. This case was an appeal in respect of a second action, which was brought against all members of the committee at the time he first agreed to play for the association. The committee members were elected annually so the composition of the committee may not have been the same at the time he was injured (compared to the time he agree to play for them). Hutley JA found that the whole club membership was not his employer, but found that the club committee was, relying on Bradley Egg Farm v Clifford [1943] 2 All ER 378. Further, it was the committee at the time he was employed in the particular year he was injured, that was his employer and liable for compensation.

  3. The liability of members of an unincorporated association in respect of tortious claims is determined by general principles of law: Baker v Jones [1954] 2 All ER 553. In Smith v Yarnold [1969] 2 NSWR 410, Smith was a spectator at a greyhound race meeting and was injured when the grandstand collapsed. The race meeting was run by the Taree Greyhound Racing Club, which was an unincorporated association. Smith sued the committee and Yarnold was the secretary. The New South Wales found the committee liable as occupiers of the premises. Herron CJ said:

…As regards liability to a stranger, there is no distinction between a member of the committee and an ordinary member of the club, though members of the committee will be liable personally, to the exclusion of the other members, if they act personally. These principles were fully analysed in Bradley Egg Farm v Clifford [1943] 2 All ER 378…….Hence, said his Lordship, the function of the law is to imply an intention on the plaintiff's part to make his contract with the person or person's whom alone the law regards as those responsible. That cannot be the society, for it does not exist. The law, therefore, has to choose from the various persons associated together under the umbrella of the society's name those most concerned in the function of making contracts, those of the associated persons who are most directly concerned, and to discard those who are for any reason least directly concerned (emphasis added). His Lordship concludes with the observation that businessmen who accept the office of being on the executive council appear to him to be the persons whom the law must regard as pledging their own credit in order to perform the duties they voluntarily undertake for their so called 'society'; just as do the committee men of a club.

  1. The Tribunal considers that in determining any liability on R1’s behalf, it needs to determine who are those most concerned in the function of providing its service, such as the public lecture which is the subject of this complaint.

  2. At the Hearing leave was given to AB to provide written submissions to the Tribunal on liability and to issue a summons to ascertain the names of the leadership of R1.

  3. A summons was issued to by AB dated 21 October 2015 to Ismail al Wahwah (R6) to produce a list of names of the leaders of Hizb ut – Tahrir (R1) and their contact details for service. The return date was 29 October 2015 but stood over to 18 November 2015 with the Applicant to notify the Respondent. On 18 November 2015 no documents were produced and there was no appearance by the Respondent.

  4. An Affidavit of Service dated 23 October 2015 was provided to the Tribunal which states that a copy of the summons was left at two addresses for R6 on 21 October 2015.

  5. An Affidavit of Service dated 3 November 2015 was also provided to the Tribunal which states that on 3 November 2015 Ismail Al Wahwah (R6) was served with the summons.

  6. AB provided the Tribunal with a statutory declaration dated 4 December 2015 which states:

“I have made the following attempts to serve documents on all respondents, jointly and severally, with supporting documents attached. Service has been achieved in every mail-out with at least one respondent. They are all returning mail in an effort to evade liability. I have used registered post and email to addresses confirmed by the respondents in their own correspondence with the Tribunal and the anti-discrimination board (email).”

Attached to AB’s statutory declaration are documents bearing addresses of the Respondents with registered post stickers beside them. Also attached is a copy of an email addressed to all the Respondents sent to “[email protected], [email protected] and [email protected] which states

“As requested by the Tribunal at the hearing on October 21, please find attached my submissions for liability.

At the hearing the Tribunal gave leave to summonse (sic) Ismail al-Wahwah (also called Abu Anas) the names and contact details for service of the leaders of Hizb ut – Tahrir Australia.

The date set for return of summonse (sic) was 29 October. Notification of summonse (sic) was successfully served an Mr al Wahwah by process server Kassim Germanos on 21 October, the deadline set by the Tribunal. All respondents were notified by registered mail sent 21 October and by email.

The return date was ignored.

The registrar extended the return date to 18 November 2015 – my deadline for providing liability submissions.

The follow-up notification was successfully served by Bankstown Sherriff’s office on November 3, and was posted to all respondents by registered post on October 29.

Again the return date was ignored.

I submit that the respondents are thumbing their nose at the Tribunal. They disrespect its processes. They refuse to accept all registered mail and it gets returned to me via post. The last submission made to the tribunal contained blacked out pages, photocopies that looked like they had tire tracks on them, and outright lies on the statutory declarations, for example that they did not have my contact address for return of service, when my PO Box address is at the top right hand corner of every letter sent or served.

The penalty for non-compliance without explanation is $11,000 and may be dealt with as contempt of the Tribunal, the Summonse (sic) form says at section 11. I understand this regulation has never been enforced before. There is a first time for everything. I humbly ask the Tribunal to enforce the regulation in this instance and prosecute”

The email has 2 attachments: part 1 liability submission and part 2 liability submission.

Applicant’s submissions on identity of those liable

  1. The Tribunal has considered the written submissions AB provided to the Tribunal on liability. The summons to obtain details of the leadership group of R1 was unanswered and the Tribunal has determined the issue of liability based on the information available to it.

  2. AB submits that the individuals named as respondents (R2, R3, R4, R5 and R6) form part of the "five-member leadership team" of R1. AB notes that R1 does not publicly "reveal a constitution stating the roles of its leadership team". It refers to them only as "spokesperson" in order to avoid liability issues. AB submits that "in the absence of party registration or a constitution that states the office bearers or roles of the leadership team, that these five men are jointly and severally liable…..as they are spokesmen and organisers of their unregistered group and its agents"

  3. AB provided a document in support of her submissions which has a headnote "Hizb ut-Tahir Media Pack" Under the heading "What is Hizb ut -Tahir?" it states:

“Hizb ut Tahir is a global political party established in 1953 under the leadership of its founder - the honourable scholar, thinker, author, and judge in the Court of Appeals in Jerusalem - Taqiuddin an -Nabhani. The current leader of the party is the erudite scholar Ata ibn Khaleel Abu Rashta. He resides in and works from the Muslim world. During his tenure as party spokesman in Jordan in the early 90's he was detained for several years as a prisoner of conscience. Since assuming the leadership of the party he has addressed conferences in Yemen, Pakistan, Indonesia and Palestine. The party leadership centrally overseas the work of the party throughout the world, and the party globally represents one entity. Due to extreme persecution faced by our members in the Muslim world, we do not aid the tyrannical rulers by revealing the precise whereabouts of the party's leadership”.

  1. AB also provided the Tribunal published articles, which identify variously some Respondents as "spokesman" or "spiritual leader" of R1.

  2. No submissions from any of the Respondents were received by the Tribunal in response to AB's submissions on liability. The Tribunal accepts that the Respondents are on notice that the Tribunal could make a finding that holds one or more of them personally liable for an act of unlawful discrimination.

  3. R1's responses to the ADB bear no signature but the name Ismail Alwahwah (R6) appears on behalf of R1. At the bottom of the first response it reads

"Please do not hesitate to contact me if further clarification is required".

  1. At the beginning of the letter from R6 on behalf of R1 dated 13 March 2015 it states

"I write in response to your letter dated 28th January where you forwarded the complainants response to our initial letter of reply. I would like to take this opportunity to further reiterate our position regarding the matters previously raised".

  1. The Tribunal must determine if there is sufficient evidence before it that establishes that Ismail Alwahwah (R6) holds (or held at the relevant time) a leadership role within R1, such that he can be held personally liable for the actions attributed to R1. The Tribunal member must determine whether R6 was a member of a committee that served to administer R1 at the time the lecture was held and was responsible for the functions of R1 in providing the lecture that is the subject of AB’s complaint.

  2. In the responses R6 provides to the ADB he indicates that he is speaking on behalf of R1 and in doing so it is reasonable for the Tribunal to conclude that R6 is responding on behalf of R1 because he holds a leadership role in that organisation. R6 has held himself out as the person whom is the appropriate contact for R1 in relation to AB's complaint and that he is in a position that is able to provide further clarification if required.

  1. Attached to AB’s submissions on liability is a print out of a website which bears the name “The Middle East Media Research Institute”. The article includes the following text:

On July 25, 2014 the Australian Branch of the Islamist group Hizb ut – Tahrir held a rally in Sydney in support of Gaza. Ismail Al-Wahwah (R6), head of the Australian branch, …..”

  1. Also attached to AB’s submission is a print out of a page from the website which includes the following text

“By the grace of Allah, the Exalted, Isma’il al-Wahwah (Abu Anas) (R6) member and Arabic media rep of Hizb ut – Tahrir Australia …..He will play a role in the political work undertaken by Hizb ut – Tahrir in Syria ….

Abu Annas will be giving Friday sermons, addressing rallies, meeting with influential people and….”

  1. The Tribunal accepts that there is sufficient evidence to find that Ismail Alwahwah (R6) is recognised by R1 as holding a leadership role within Hizb ut – Tahrir Australia and because this organisation is an unincorporated association, the leadership role R6 holds within this organisation results in him being personally liable for the conduct, which the Tribunal has found to be unlawful under the ADA.

  2. The complaint against R1 must be dismissed because it is not an entity that can attract legal liability for its conduct. But the Tribunal finds that Ismail Alwahwah (R6), can be held as personally liable for the unlawful conduct of R1, being an act of discrimination on the grounds of sex in the seating arrangements that applied to AB at the lecture. The complaint against R6 is therefore established.

Liability of W1

  1. The identity of W1 remains unknown but R6 (writing on behalf of R1) describes her as a "chaperone" at the event. AB referred to her as someone who looked as though she was one of the people “in charge” of the event. The description of W1 as a “chaperone” by R6 on behalf of R1 ascribes an appointed role for W1. This supports a finding that her conduct was as an agent of R1, who organised and promoted the lecture, and as such can be attributed to R1 by virtue of section 53 of the ADA.

  2. The Tribunal finds there is insufficient evidence to establish liability of Respondents R 2 - 5 in this matter.

  3. There is no evidence before the Tribunal of conduct of any of the individual Respondents that connects their conduct directly to AB’s complaint. There is also no evidence before the Tribunal of any instruction, direction or order given by any of the individual Respondents which connects them to the unlawful act of discrimination that has been established. The complaints against R2, R3, R4 and R5 are therefore dismissed.

Liability of R7 Public Forums Incorporated

  1. Turning to the question of liability of R7. R7 is a legal entity with an ABN number based on it being an incorporated Association. According to a printout provided by AB from "WhoIs Record" the contact is Mohamed Doureihi.

  2. In a letter to the Tribunal dated 20 October 2015 from R7, Ashraf Doureihi signs this correspondence as "Public Officer" for Public Forums Inc. Indeed in this letter he states

"I write to you in the capacity of Public Officer of Public Forums Inc, the entity which hired the venue to some of the respondents listed in the letter for the event in question".

  1. There is evidence that R7 hired the venue to “some” of the Respondents but not specifically which of the respondents.

  2. AB submits liability can be attributed to R7 on the basis that it permitted an unlawful act to occur on its premises and therefore comes within section 52 of the ADA. In Cooper v HR&EOC (1999) 93 FCR 481, it was held that it was not essential to the concept of permission that the permitter needed to know or believe that there was no unjustifiable hardship in order to establish liability (in a complaint pertaining to disability discrimination). In the case of Elliott v Nanda (2001) 111 FCR 240, the issue was whether the Commonwealth Employment Service (CES) had permitted acts of discrimination on the grounds of sex involving sexual harassment. The complainant obtained employment as a receptionist with a doctor through the CES. In that case, there was evidence that the CES knew that some young women placed with this doctor had complained of behaviour amounting to sexual harassment.

  3. Moore J stated that the case of Cooper held that the notion of "permit" should not be narrowly interpreted and that a person can "permit" for the purpose of section 105 of the Sex Discrimination Act if, before the unlawful act occurs, the permitter knowingly places the victim of the conduct in a position where "there is a real, and something more than remote, possibility that an unlawful act will occur".

  4. There is no evidence before the Tribunal of what R7 knew of the seating arrangements of the lecture. While it is likely that R7 would have been aware that gender segregation in the seating arrangements would take place at the event, there is no evidence before the Tribunal of whether R7 would have known of how this was to be arranged at the venue, or how it would be enforced on all of the various attendees of the event.

  5. The Tribunal is not satisfied that R7 can be held liable under the provisions contained in section 52 of the ADA and the complaint against R7 is therefore dismissed.

Impact on Applicant

  1. AB said to the Tribunal that when she arrived at the lecture she wanted to sit in a vacant seat in the men's section because she wanted to be "closer to the action". AB's evidence is that from the seat she ultimately took in the women's section, it was at times difficult to see what was happening at the front of the room and occasionally she had to "crane my head to see". The lecture was in English but a presentation was played on a screen at the front of the room and she had trouble seeing captions at the bottom of the screen. AB said she could hear what was being said on stage but because there were also children in the women's section, at times it was noisy which made it more difficult to hear. AB was able to ask a question from one of the microphones available to the audience, and indeed she says that she asked her question four times because she felt she was not getting an adequate response. Other women also asked questions and after the lecture, the audience of men and women mingled with each other.

  2. The Tribunal accepts that AB was frustrated and annoyed by being told she had to sit in the women’s section with women and children. It diminished her experience of the lecture. She could not see as well. She was further away from the speakers and screen. It was also noisier because of the ambient noise being made by some of the children also seated there. AB also said it caused her offence to be restricted to a group reserved for mothers and children purely on the basis of her gender.

Remedies

  1. At the Hearing before the Tribunal AB said she did not want an apology but rather sought the following:

  • a guarantee not to impose gender segregation at public events

  • the maximum compensation of $100,000, which she said she would donate to a charity.

  1. Section 108(2) of the ADA relevantly provides that:

If the Tribunal finds the complaint substantiated in whole or in part, it may do one or more of the following:

  1. except in respect of a matter referred to the Tribunal under section 95(2), order the respondent to pay the complaint damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

  2. make an order enjoining the respondent from continuing or repeating any conduct unlawful by the Act or the regulations,

…

  1. There is evidence before the Tribunal that AB was annoyed and frustrated at the treatment she was subjected to at the lecture but there is no evidence before the Tribunal of any loss or damage incurred as a result of the unlawful conduct. There was no entry fee to attend the lecture. AB’s experience of the lecture was diminished but there is no evidence of any loss of income that flowed from the less favourable treatment afforded to AB on the basis of her sex. In all the circumstances the Tribunal considers that it is not appropriate to award the Applicant any monetary compensation.

  2. R6 on behalf of R1 said to the ADB that segregated seating arrangements at public events such as the lecture were not considered to be compulsory. The Tribunal has determined that the most appropriate remedy in this case is that for any future events promoted and/or organised by R1 that are open to the public, that there are notices clearly displayed at the venue, and are published in all promotional material, that make it clear that gender segregated seating arrangements where men are seated at the front and women and children are seated behind them, are not compulsory for all attendees. Further, that ushers, chaperones or any other personnel entrusted to assist with the seating of attendees at public events are made aware and instructed not to enforce these seating arrangements.

Conclusion

The Tribunal makes the following findings:

  1. Unlawful discrimination in the terms of the provision of a service provided by R1 on the grounds of sex pursuant to section 33 of the ADA in the provision of the lecture held on 10 October 2014.

  2. R6 is personally liable for the discriminatory conduct found in (1) above.

Orders

  1. The Tribunal orders that R6 ensure that any future events promoted and/or organised by R1 that are open to the public comply with the following:

  1. Notices are clearly displayed at venues and are published in all promotional material, that make it clear that gender segregated seating arrangements where men are seated at the front and women and children are seated behind them, are not compulsory for all attendees; and

  2. Ushers, chaperones or any other personnel entrusted to assist with the seating of attendees at public events are made aware and instructed not to enforce segregated seating along gender lines where men are seated at the front and women and children are seated behind them.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 04 March 2016

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Cases Cited

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Statutory Material Cited

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Waters v Public Transport Corporation [1991] HCA 49
IW v City of Perth [1997] HCA 30
Waters v Public Transport Corporation [1991] HCA 49