Complainant 201931 v Australian Capital Territory (Represented BY Access Canberra) (Discrimination) - [2021] ACAT 9

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201931 v AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY ACCESS CANBERRA) (Discrimination) [2021] ACAT 9

DT 31/2019

Catchwords: DISCRIMINATION – referral of discrimination complaint to the ACAT by Human Rights Commission – protected attributes – whether direct or indirect discrimination asserted – identification of alleged discriminatory actions – whether complainant was unfavourably treated – whether unfavourable treatment caused by one or more protected attributes – whether complainant victimised – matter dismissed

Legislation cited: Associations Incorporation Act 1991 ss 9, 14, 16, 18, 19, 22, 23, 24, 26, 29, 30, 31, 32, 33, 37, 38, 39, 48, 49, 50, 53, 57, 58, 59, 60, 62, 65B, 67, 69, 79, 83, 92, 93, 94, 95, 96, 126
Competition and Consumer Act 2010 (Cth) Sch 1, 2
Discrimination Act 1991 ss 4A, 4AA, 7,8, 10, 20, 68, 71, 121A
Human Rights Commission Act 2005 ss 42, 51, 52A, 53A, 53C, 53CA, 53E, 82, 88, 98

Subordinate
Legislation cited: Associations Incorporation Regulation 1991 s 15, sch 1

Cases cited:AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140
Andreopoulos v University of Canberra [2020] ACAT 95
Anisminic v Foreign Compensation Commission [1969] 2 AC 147
Bickle v State of Victoria [2020] FCA 168
Bishop Irinej Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust [2015] NSWSC 637
Complainant 201823 v Insurance Australia Group [2019] ACAT 64
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Farah and Commissioner of Police of the Metropolis [1998] QB 65
IW v City of Perth (1997) 191 CLR 1
Kidman v Casino Canberra Ltd [2020] ACAT 50
Kovac v The Australian Croatian Club [2014] ACAT 41
Nestle Australia Ltd v The President and the Equal Opportunity Board [1990] VR 805
Prezzi and Discrimination Commissioner [1996] ACTAAT 132
Purvis v State of NSW [2003] HCA 62
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
Varasdi v State of Victoria [2018] FCA 1655

List of

Texts/Papers cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 17 October 1991, page 3891 (Rosemary Follett MLA)

Tribunal: Senior Member M Hyman

Date of Orders:  8 February 2021
Date of Reasons for Decision:         8 February 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 31/2020

BETWEEN:
COMPLAINANT 201931
Applicant

AND:
AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY ACCESS CANBERRA)
Respondent

TRIBUNAL: Senior Member M Hyman
DATE:8 February 2021

ORDER

The Tribunal orders that:

The name of the respondent is amended to “Australian Capital Territory (as represented by Access Canberra)”.
The application is dismissed.

………………………………..
Senior Member M Hyman

REASONS FOR DECISION

Introduction

The complainant in this matter is a member of the Serbian-Australian community and a participant in the Serbian Orthodox religion. The body of worshippers within St George’s Serbian Orthodox church in Canberra (the Free Serbian Orthodox St George in Canberra Diocese for Australia and New Zealand, referred to henceforth as the Free Serbian Church) became divided into two groups with differing loyalties. St George’s parish is an association incorporated under the Associations Incorporation Act 1991 (the AI Act). One of the two groups within the Association (the president’s group) managed to register a list of office bearers under the AI Act and exclude the office bearers nominated by the other group (the complainant’s group), from participation. Administrative oversight of the AI Act is by a Registrar-General, who operates, and whose office operates, within that part of the ACT public service known as Access Canberra.
The complainant lodged a complaint[1] with the Human Rights Commission (HRC) on 1 July 2019 under section 42(1)(c) of the Human Rights Commission Act 2005 (HRC Act), stating that Access Canberra had discriminated against her on the grounds of political convictions, her calling (as spokesperson or advocate for her association), her Serbian heritage, her Serbian Orthodox faith and her association with others of Serbian heritage. The areas of public life in which discrimination were stated to have occurred were in access to an organisation (i.e. the Church association), employment (unpaid work as liaison and spokesperson for the members), and in the provision of goods, services or facilities. The complainant also asserted that she had been victimised because she had made a discrimination complaint. The details are explored later in this decision.
[1] Agreed bundle page 212
On 27 September 2019 the Human Rights Commission wrote to the complainant and to Access Canberra, stating that the complaint was unlikely to be resolved by conciliation, and that the Commission was therefore closing the complaint under section 78(1)(f) of the HRC Act.[2] On the same day the complainant asked that the complaint be referred to this tribunal, and the Commission made that referral under section 53A of the HRC Act on 1 October 2019.[3] That referral gives jurisdiction to this tribunal to hear and decide the matter under sections 53C and 53E of the HRC Act.
[2] Agreed bundle pages 210, 211
[3] Agreed bundle pages 208, 209
On 17 February 2020 this tribunal ordered that the complainant’s name not be published. Accordingly, the complainant in this matter is identified in this decision as “complainant 201931”.
For the reasons set out below, the complaint is dismissed.

Hearing

The Tribunal held an in-person hearing on 15 and 16 October 2020. Section 53C of the HRC Act provides that the parties to an ACAT proceeding on a discrimination complaint are the complainant and the person complained about. Access Canberra does not have the status of a legal person; it is a business unit of the Chief Minister, Treasury and Economic Development Directorate and may not sue or be sued. For that reason the respondent, in a formal sense, is the Australian Capital Territory, but the decision refers to the organisation with which the complainant dealt on relevant matters as Access Canberra.
The complainant appeared representing herself. and the respondent was represented by Mr Nigel Oram of Counsel. The complainant appeared as a witness and called two further witnesses, namely Mr Ilija Batar and Mr Milos Mikic. The respondent called three witnesses who were employed at Access Canberra at relevant times: Mr Richard Binks, Ms Wendy Harrison and Ms Rachelle Blanch. All witnesses appeared in person, and except for the complainant herself, all provided witness statements. The complainant did not prepare such a statement, but, in accordance with a suggestion by Mr Oram, I will treat the factual material authored by the complainant and included in the abundant material she has provided as elements of a witness statement, disregarding for the purpose of fact-finding material in the nature of submissions. Accordingly, the material the complainant provided on 20 April 2020 is identified as Exhibit A3 and the material provided on 17 April 2020 is identified as Exhibit A4.
The parties have helpfully tendered a paginated bundle of documents agreed between them as the material that is before the Tribunal in this matter. Documents relating to the complainant’s HRC complaint are identified as taken from the agreed bundle and by page number. The witness statements and the complainant’s statements have been assigned exhibit numbers as indicated in these reasons. The documents relating to the complainant and her exchanges with Access Canberra, making up pages 232-445 of the agreed bundle, are identified as Exhibit A5 and by page number. The complainant tendered an additional bundle of documents during the course of the hearing, identified as Exhibit A6 and separately paginated.

Issues

The issues arising when a discrimination complaint comes before the Tribunal arise out of the interaction between the Discrimination Act 1991 (the Discrimination Act) and the HRC Act. A threshold distinction is whether the complaint alleges direct discrimination, indirect discrimination, or both.
Section 8 of the Discrimination Act defines discrimination. The definition creates two categories, direct discrimination and indirect discrimination. Direct discrimination occurs when a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes”,[4] indirect discrimination occurs when a 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”.[5] Indirect discrimination does not occur, however, if the imposed condition or requirement is reasonable in the circumstances.[6] Subsection 4A(1) provides that “doing an act includes failing to do the act” and subsection 4A(2) states that an action can have more than one cause, and that a cause remains a cause of that action whether or not it is the dominant or substantial cause. Section 121A says that where a person represents another (as agent or employee), that person’s acts are taken to be the principal’s acts if the agent or employee was acting within the scope of actual or apparent authority (unless the principal took all reasonable steps to prevent the agent or employee engaging in the relevant behaviour).
[4] Discrimination Act 1991 section 8(2)
[5] Discrimination Act 1991 section 8(3)
[6] Discrimination Act 1991 section 8(4)
The complainant’s articulation of her case has generally been in terms that suggest that she is making a claim of direct discrimination, in that she describes various actions that are characterised in ways that could be understood to be “unfavourable treatment” rather than the imposition of a condition or requirement that would disadvantage her. But in one of her submissions the complainant makes two explicit claims of indirect discrimination: at one point the complainant includes the sentence:
It was unlawful indirect discrimination by denying my rights to natural justice, to procedural fairness, right to a fair trial and/or adjudication which were denied through omissions of facts, evidence and crucial documentation over two year period whilst the matter was ‘being investigated’ for compliance and lawfully required documentation [original emphasis].[7]
Later in the same document the complainant says: “All the discriminatory acts were indirect except for when Richard told me that …”.[8]
[7] Exhibit A3, page 140 at [31]
[8] Exhibit A3, page 144 at [41]
In Edgley v Federal Capital Press of Australia Pty Ltd[9] Beaumont ACJ (Gyles and Higgins JJ agreeing) identified direct discrimination as discrimination aimed at or towards the person discriminated against; indirect discrimination occurs when actions or behaviour, although not aimed at the person, have an effect that disadvantages the person.
[9] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
In the present matter I am unable to identify any condition or requirement that the complainant claims to have been imposed on her. Neither of the words ‘condition’ or ‘requirement’ is used, so far as I can see, anywhere in her written submissions in a way that suggests such an imposition; nor did I hear the use of those terms suggesting a claim to indirect discrimination during the hearing. Furthermore, I have been unable to identify any equivalent using alternative wording: suggestions that she has been denied natural justice, or procedural fairness, or a fair trial, for example, do not seem to me to be equivalent to identifying the imposition of a condition or requirement. It seems to me likely that the complainant, as a self-represented party without legal training, has an imperfect understanding of the difference between direct and indirect discrimination, perhaps thinking that direct discrimination is discrimination that is explicit and open and indirect discrimination is implied or hidden. That is not the distinction that is drawn in the legislation. In my opinion, the complainant is asserting that a number of discriminatory acts occurred, all of which were directed towards her and her group, and all of which are best understood as alleged direct rather than indirect discrimination.
On that basis the issues for resolution in the matter are:
(a)What protected attribute or attributes does the complainant have?
(b)In what areas of public life does the complainant assert that discrimination occurred?
(c)What actions or failures to act by Access Canberra does the complainant assert constitute discrimination?
(d)Did those actions or failures to act by Access Canberra constitute unfavourable treatment?
(e)If so, was that unfavourable treatment because of one or more of the complainant’s protected attributes?
(f)Has the respondent victimised the complainant or otherwise committed an unlawful act?
(g)If so, what action should the Tribunal take in response?

Legislative framework

The Discrimination Act and the HRC Act

Discrimination matters in the ACT are governed by the Discrimination Act, and complaints are made and responses determined under the HRC Act. The Discrimination Act defines discrimination, lists the kinds of attributes a person can have that can form the basis for discrimination against them by another person, and specifies various areas of public life where discrimination is unlawful. Central to its scheme is section 7(1), which lists 24 protected attributes (including political conviction; profession, trade, occupation or calling; race; religious conviction; and association with a person who has another protected attribute). Section 7(2) provides that each attribute extends not only to a person who has that attribute, but to characteristics that people with the attribute generally have, or are presumed to have, or that the person has had in the past, or is thought to have, or is thought to have had in the past. The dictionary at the end of the Discrimination Act defines ‘race’ to include ethnic and national origin, and defines ‘political conviction’ to include having a political conviction, belief, opinion or affiliation, and engaging in political activity, and also not having and not doing those things.
Part 3 of the Act sets out forms of behaviour that constitute unlawful discrimination. Section 10 makes it unlawful for an employer to discriminate against an employee in areas such as offering employment, terms and conditions of employment, or dismissal; the following sections extend that protection to related occupational situations such as partnerships, commission agents and qualifying bodies. Division 3.2 of the Discrimination Act makes discrimination unlawful in a number of other areas, such as clubs, education and accommodation. Section 20 within that Division makes it unlawful for a person providing goods, services or facilities to discriminate in the provision of those goods, services or facilities, the terms and conditions on which they are provided, or the way in which they are provided.
The HRC Act provides the mechanism by which a person can take action if the person thinks they have been discriminated against. Part 4 of the HRC Act deals with complaints. Section 42 sets out a number of different complaints that can be made, including in section 42(1)(c) the making of a complaint about an unlawful act under the Discrimination Act (and section 42(2) makes it clear that such a complaint may relate to two or more protected attributes and to events occurring on two or more occasions). Under Division 4.2 the HRC has discretion to deal with complaints in various ways, including conciliation or referring the matter to a statutory office-holder who in the Commission’s view is well-positioned to deal with it.[10] Where the Commission comes to the point where it cannot take a complaint further, it can close the matter, and advise the complainant of the option to require the Commission to refer the complaint to this tribunal within 60 days.[11]
[10] Human Rights Commission Act 2005 sections 51, 52(A)
[11] Human Rights Commission Act 2005 sections 82, 88, 53A
Where a complaint is referred to ACAT, the parties are the complainant and the person complained of.[12] Section 53CA specifies how a discrimination complaint is to be decided and subsections 53CA(2), (3) and (4) read as follows:
[12] Human Rights Commission Act 2005 section 53(C)
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a) establishes that—
(i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4) In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
Where ACAT is satisfied that unlawful discrimination has occurred, section 53E requires the tribunal to make one or more orders directing that the discriminatory behaviour end, and/or that action or actions by way of redress are taken, and/or that an amount of compensation be paid. The considerations that ACAT must take into account in determining the amount of compensation are listed in subsection 53E(3).
It should be apparent that the scheme of the two Acts is to make discrimination unlawful only in certain specified contexts and between persons in specified roles. Where such discrimination occurs, the tribunal’s remedial powers are extensive.
The AI Act
The complaint at issue concerns the way in which Access Canberra administered its responsibilities under the AI Act in relation to the Free Serbian Church. That brings forward the operation of the AI Act, and the Registrar-General’s responsibilities under that Act.
Under section 14 of the AI Act, associations in Canberra are eligible for incorporation provided they are formed on a not for profit basis. Incorporation means that the association becomes a body corporate with perpetual succession, a legal person, able to sue and be sued and to own property, including real property.[13] The AI Act provides a legal and administrative framework for the process of incorporation and the ongoing operations and activities of incorporated associations. The role of the Registrar-General is largely administrative, including:
(a)maintaining a register of information;
(b)accepting and determining applications for incorporation;
(c)making decisions about the names of associations;
(d)cancelling an association’s incorporation under certain circumstances;
(e)taking charge of and if appropriate disposing of the property of an association that has been wound up, or whose incorporation has been cancelled, if it has not passed to another association; and
(f)investigating possible offences against the AI Act or fraud or dishonesty involving an association (Part 8).[14]
[13] Associations Incorporation Act 1991 sections 22, 23, 24
[14] Associations Incorporation Act 1991 sections 9, 18, 19, 37 - 39, 83, 92 - 96

The AI Act does not dictate how incorporated associations must conduct their affairs, but it does require that they adhere to certain rules. Thus, an association must:
(a)nominate its objects;
(b)nominate a public officer;
(c)elect or appoint a committee of at least three people to manage the association;
(d)maintain a register of members;
(e)hold an annual general meeting once in each calendar year; and
(f)maintain records, especially financial records, have the financial records audited, and provide an annual return to the Registrar-General (Part 5).[15]
[15] Associations Incorporation Act 1991 sections 18(1)(b), 26(2)(b), 29, 57, 58, 60, 67, 69
An incorporated association is under an obligation to keep the Registrar-General informed of many aspects of the association and of any changes:
(a)including alterations in the objects of the association; appointment of a public officer, and any change of address of a public officer;
(b)changes in membership of the association’s committee; and
(c)must submit the association’s annual return.[16]
[16] Associations Incorporation Act 1991 section 30, 59, 62, 79
That return must not only include a statement of the association’s accounts but also a “statement of particulars” in the form approved under section 126 (which provides for approved forms). The approved form for the annual return (as set out on the Access Canberra website) requires that the particulars include details such as the name, address and other information about the association and its public officer, the association’s financial year and when its annual general meeting was held, and the names of the committee members.
Every association is bound by a set of rules, which together form its constitution. The rules govern the operation of the association, covering matters such as membership qualifications, fees, member liability, the association’s committee, meetings, funds, and financial year.[17] An association can choose to adopt model rules provided for the use of associations (the model rules are set out in the Associations Incorporation Regulation 1991 – see below), or can replace some or all of those rules by rules of the association’s choosing, within prescribed constraints.[18] Amendments to rules must be notified to the Registrar-General.[19] The rules must include a dispute resolution procedure for dealing with a dispute between members or between one or more members and the association.[20] An association’s rules bind the association and its members.[21]
[17] Associations Incorporation Act 1991 section 32, schedule 1
[18] Associations Incorporation Act 1991 sections 16, 26(1), 31, 32
[19] Associations Incorporation Act 1991 section 33
[20] Associations Incorporation Act 1991 section 65B
[21] Associations Incorporation Act 1991 section 48
The Registrar-General has a largely administrative function focused on maintaining accurate information about incorporated associations on the register. A broader supervisory role is given to the courts (the Supreme Court or the Magistrates Court). A member may, for example, apply to the court to set aside a decision of the association that deprives the member of a right conferred on the member by the rules;[22] the court may also order an association or a member of an association to perform or observe the rules of the association, or enforce the rights or obligations of members between themselves or between an association and a member.[23]
[22] Associations Incorporation Act 1991 section 49
[23] Associations Incorporation Act 1991 section 53
Section 127 allows the Executive to make regulations under the AI Act for specified purposes, including the prescription of model rules. The Associations Incorporation Regulation 1991 provides at section 15 for the model rules, which are set out in full at schedule 1 of the Regulation.

The evidence

The complainant advanced a great deal of evidence relating to the disagreement within the association and the Free Serbian Church. The present matter, however, concerns whether Access Canberra discriminated against the complainant in certain dealings over the period from late 2017 to the middle of 2019. The detail of the disagreement within the Church and the association is of limited relevance to that discrimination action. Further, there were within the Church and the association two groups with different views. The complainant is from one of those groups; no-one from the other group has been involved in the matter, and I am therefore without any evidence from those who might present events in a light different from that thrown on them by the complainant. I have therefore included only the evidence that in my view is necessary to decide the matter or to provide sufficient understanding of the context for the purposes of my decision, and I have made no findings of fact about the affairs of the Church or the association. This means that some matters are passed over lightly; in particular, the evidence of the complainant’s witnesses, Mr Batar and Mr Mikic is of limited assistance because both left all dealings with Access Canberra to the complainant, undertaking none themselves.
Documentary evidence – events within the Free Serbian Church to March 2018
The association’s constitution was adopted on 16 September 1965.[24] It comprises 48 rules dealing with the issues usual in such a document: the objects of the association; membership; meetings; the formation, election and duties of the administrative committee of the association (including two trustees); and financial matters including subscriptions. Rule 37 specifies that the public officer of the association is the president. The papers include what appears to be an amendment to the constitution, although unlike the constitution itself, it is undated and bears no authenticating marks (the constitution itself is signed by a Justice of the Peace and dated).[25] The amendment changes the name of the association from “Eastern Serbian Orthodox Church Community Parish St. George in Canberra Diocese for the United States of America and Canada” to “The Free Serbian Orthodox Church St. George in Canberra Diocese for Australia and New Zealand Incorporated”. In a later document there is a reference to the constitution having been unamended since 1967, and that was also mentioned by the complainant, so it appears that the amendment dates from that year; although nothing rests on that point.
[24] Exhibit A5 page 232
[25] Exhibit A5 page 238
The minutes of the 2017 annual general meeting (AGM) of the association, held on 9 April 2017, record the election of a committee for the forthcoming year, with Mr Stevo Ilic as president and the complainant as deputy secretary.[26] An extract from the register of incorporated associations, dated 9 May 2017 and signed by the Registrar-General, lists five committee members for the association, headed by Mr Stevo Ilic, with the complainant as public officer (and possibly, by implication, as a sixth committee member, as she is not otherwise listed).[27] The financial year is listed as ending at the end of the 2017 calendar year, and the most recent annual return as having been provided on 27 April 2017.
[26] Exhibit A5 page 389
[27] Exhibit A5 page 240
An email of 7 December 2017 from the complainant to Ms Heather Kellie, Assistant Manager, Work Safety Licensing and Community Regulation in Access Canberra, brings to Ms Kellie’s attention the existence of dissension within the association, reports that an attempt to convene an extraordinary general meeting was refused, and asks for the help of Access Canberra in reinforcing to the association’s committee the need for adherence to the constitution.[28] Ms Kellie wrote to the secretary of the association, Fr Aleksandr Popadic, on 7 December 2017, reminding the committee of the provisions of the AI Act that bind the members of an association to the association’s rules and give management responsibility to its committee.[29] On 12 December Mr Ilic wrote to the Office of Regulatory Services for the ACT, advising that at the April AGM the then public officer, Mr Radovan Leovic, had not resigned and had not been removed as public officer, and therefore continued in that role; the complainant had been appointed by mistake.[30] Mr Ilic stated that a decision of the “Executive Board” (which, it appears, is intended to mean the association’s committee) is needed before an extraordinary general meeting can be called, and no such decision had been taken at the most recent meeting. As a result, no such extraordinary meeting could be held.
[28] Exhibit A5 page 241
[29] Exhibit A5 page 386
[30] Exhibit A5 page 391
Ms Kellie wrote again, this time to Mr Ilic, on 15 December 2017 reminding him of some of the rules in the association’s constitution, including rule 37, identifying the public officer as the president; rule 17, which allows a third of the members (or more) to call a special assembly; and rules 18, 19, 20 and 21, which govern participation in and voting at such a meeting.[31]
[31] Exhibit A5 page 243
A notice dated 25 December 2017 called for an extraordinary general meeting to be held in the church hall on on14 January 2018.[32] The notice was signed by the complainant as public officer and assistant secretary. The focus of the meeting was described in a way that suggests that the church community was divided in its opinion regarding the appropriate diocesan affiliation of the church in Canberra. A record of the extraordinary general meeting lists one special resolution and three ordinary resolutions, all of which were passed by the meeting.[33] The special resolution dealt with the diocesan affiliation of the church of St George in Canberra, as foreshadowed in the notice of the meeting. The three ordinary resolutions were a vote of no confidence in the current committee and its president; a spill of the committee; and a decision that an interim committee should be elected to manage the association until an AGM could be held. Four people were elected to form the interim committee, including the complainant as secretary.
[32] Exhibit A5 page 245
[33] Exhibit A5 page 251
A Change of Public Officer Particulars form signed by Mr Ilic and dated 5 January 2018 records that as of 3 January 2018 the public officer for the association was Mr Ilic.[34] In a letter dated 5 December 2018 (presumably in error, intending 5 January 2018) Mr Ilic wrote to Access Canberra advising that an “extraordinary church committee meeting” had been held on 3 January 2018.[35] The meeting had removed the complainant as public officer and had substituted Mr Ilic in that role “until AGM in February 2018”. An extract from the Register of Incorporated Associations, dated 8 January 2018, and signed by the Registrar-General, records the same committee for the association as that of 9 May 2017, except that the complainant’s name is now missing, and the public officer is listed as Mr Ilic.[36]
[34] Exhibit A5 page 392
[35] Exhibit A5 page 395
[36] Exhibit A5 pages 250, 394
A “Change of Committee Particulars” form signed by Mr Ilic and one other committee member and dated 25 February 2018, reports a new set of committee members and lists ten outgoing committee members, but without the signature of any of the outgoing members.[37] The date of the change of membership is given as 12 January 2018. An annual return for the association, signed by Mr Ilic as public officer and two other committee members and dated 25 March 2018, is accompanied by an audit report and a statement of income and expenditure.[38] The annual return does not identify a date on which an AGM was held, but records that the accounts were presented to a meeting on 18 February 2018. Eight members are listed as current members of the committee, each identified only as “member” (i.e. without an office for each being identified), and these names correspond to those listed on the “Change of Committee Particulars” form. A further extract from the Register of Incorporated Associations, dated 26 March 2018, lists the eight members listed in the annual return as the committee members of the association, with Mr Ilic again identified as public officer.[39] (There is a further extract from the Register, dated 27 March 2018, which lists nine committee members; one member’s name has a corrected spelling, and one name appears twice with one letter different in the two appearances).[40]
[37] Exhibit A5, page 414
[38] Exhibit A5, page 256 and page 396
[39] Exhibit A5, page 265
[40] Exhibit A5, page 267
In one of her submissions, the complainant states that she contacted Ms Kellie by telephone around mid-February 2018, advising that the AGM that had been projected to be held on 4 February had not taken place, and warning that an annual return containing incorrect information might come forward.[41] The complainant states that Ms Kellie was aware of the possibility and would alert her staff. In the same document the complainant states that she spoke to Ms Kellie by telephone on 20 April 2018, having just discovered the annual return registered on 26 March. The complainant states that Ms Kellie was not at that time aware of what had occurred.
Exchange between Access Canberra and the complainant from April 2018 to May 2019
[41] Submission filed 17 February 2020
The registration of a new committee by Access Canberra was the start of a protracted exchange between that organisation and the complainant, as she attempted to persuade Access Canberra to change its decision to accept the annual return. On 27 July 2018 the complainant sent an email to Ms Kellie outlining what she saw as the failures of the committee as led by Mr Ilic to follow the process set out in the AI Act: in particular, that no AGM had been held, the audited accounts had not been presented to the members, and the committee members had been identified only as members and not by assignment to the offices of the committee.[42] The complainant also stated that an extraordinary general meeting had been duly held on 14 January 2018, not in the church hall, which the president had obstructed the use of, but on an oval across the road, adopting a unanimous special resolution, which the new committee had ignored. Subsequently, a further request for a “special assembly” (the term used in the association’s constitution for an extraordinary general meeting) had been made, in May 2018, and that, too, had been ignored (the request, with 36 names, was attached to the email). The complainant had also obtained the assistance of a lawyer from the legal firm Meyer Vandenberg, who had written to Mr Ilic as public officer on 3 July 2018 noting that no special assembly had been held, despite the request for one, asserting that the committee was in breach of the AI Act, and requesting that a special assembly be held within a week. The complainant’s email asked that Access Canberra deregister the committee, disqualify the members from any similar office, and arrange to have an AGM called and held by the end of August 2018 under the supervision of Elections ACT.
[42] Exhibit A5 page 268
The complainant submitted a further “Change of Committee Particulars” form to Access Canberra, signed by herself and Mr Ilija Batar on 5 September 2018, listing four committee members as current (including the complainant and Mr Batar) and including the eight members of Mr Ilic’s committee as outgoing committee members.[43] An accompanying letter signed by the complainant asserts that the members of the new committee were appointed at the extraordinary general meeting held on 14 January 2018 and notes that no signatures from the outgoing members had been obtained. At the same time the complainant submitted a ‘Change of Public Officer Particulars’ form listing Mr Batar as public officer, and an annual return form.[44] An email to Ms Kellie dated 6 September 2018 provides supporting information regarding the association members and numbers, including details of those voting at the January extraordinary general meeting.[45] The email arrives at a count of 90 for the number of association members (by a process of adding and subtracting individual members some of whom had died and others who, the complainant asserted, were no longer eligible to cast a vote). The email attached a complete membership list and a list of members, with signatures of those who voted at the January meeting. In the email the complainant asserted that the number of those voting constituted a quorum (which, by the constitution, is 50% for an extraordinary general meeting).
[43] Exhibit A5 page 276
[44] Exhibit A6 pages 47, 48
[45] Exhibit A5 page 280
An email of 7 September from the complainant to Ms Kellie reports that a letter had been handed out during a service at the church on 14 January 2018, the same day as the extraordinary general meeting.[46] The letter, in Serbian, is attached to the email. It appears to come from the Diocesan Executive Board of the Free Serbian Orthodox Church and, according to the complainant, it purports to expel 43 members of the association. An email of 10 September 2018 from the complainant to Ms Kellie serves to forward to her a number of documents, including a certificate of title showing the association as holding title to the church land; a translation of the letter from the Diocesan Executive Board; documents purportedly demonstrating the autonomy of parishes within the Free Serbian Orthodox Church; and an extract from a judgment of the NSW Supreme Court.[47] In the translated letter dated 12 January 2018 (the translation does not appear to be certified) the Diocesan Executive Board dissolves the association committee, replaces it with the committee that was registered by Access Canberra on 26 March 2018 and expels 43 people (including the complainant) as “signatories of the illegal petition” (meaning, it appears, the petition for an extraordinary general meeting). The Diocesan Executive Board explains the decision by reference to the constitution of the Church and several paragraphs from the judgment of the NSW Supreme Court (White J). It is from that judgment, in Bishop Irinej Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (Irinej),[48] that the complainant included an extract. The judgment deals mainly with a monastery at Wallaroo, just outside Canberra in NSW, but paragraphs [288]-[293] refer to the parish of St George and to events there in 2007 and 2008.
[46] Exhibit A5 page 299
[47] Exhibit A5 page 306
[48] [2015] NSWSC 637
An email from the complainant to Ms Wendy Harrison, one of Ms Kellie’s colleagues in Access Canberra (Ms Kellie is copied in), states that she has found a Serbian language newspaper article from 2008 reporting an attempt to register a “rogue” committee by some members of the association; the attempt had been thwarted when Access Canberra had investigated and had overturned the initial registration and replaced it with registration of the committee elected at the AGM.[49] No copy of the article appears in the papers. In other documents the complainant sought to access some of the documentation that had been provided to Access Canberra in 2008 but could not because the letter was considered to be private by Access Canberra staff.[50] It appears that the complainant lodged a freedom of information (FOI) application for the relevant document or documents.
[49] Exhibit A5 page 333
[50] Exhibit A6 pages 53-4
On 3 October 2018 Ms Kellie wrote to Fr Popadic as secretary of the association, reporting that a complaint had been received to the effect that the association was in breach of the AI Act and of its constitution.[51] The particulars of the complaint were reported as including:
(a)that no AGM had been held for 2017/2018;
(b)that the current committee had not been validly elected; that the annual return listed committee members only as members and not by office;
(c)that the audited financial statements had not been presented to the members; the outcome of the extraordinary general meeting on 14 January had been ignored;
(d)the request for an extraordinary general meeting on 25 May had been ignored; and
(e)the committee had breached several enumerated sections of the AI Act.
[51] Exhibit A5 page 335

The letter asked that the association provide a list of members and date of joining; minutes of the general meeting held on 18 February with details of attendees, agenda, matters discussed and decisions; and a list of current committee members with assigned offices. The letter also informed Fr Popadic of the “Change of Committee Particulars” form received on 5 September, and notes that the information sought from the association will help in the decision whether or not to accept the form for registration.
On 9 January 2019 Ms Kellie sent an email to the complainant referring to the “Change of Committee Particulars” form provided to Access Canberra on 5 September 2018 and asking for documentation to assist in making a decision about registering the form.[52] The additional information sought comprised the notice to members about the extraordinary general meeting on 14 January 2018, copies of resolutions tabled at the meeting, and an agenda. On 15 January 2019 the complainant replied providing a detailed account of events and explaining in particular why there was a lapse of about eight months between the extraordinary general meeting in January 2018 and the submission of the “Change in Committee Particulars” form in September.[53] The complainant attached the agenda, notice and record of the resolutions.[54]
[52] Exhibit A5 page 340
[53] Exhibit A5 page 342
[54] Respectively Exhibit A5 page 255; page 245; page 251; also appearing at pages 346-359
In March 2019 there was a series of emails from the complainant asking whether the decision regarding acceptance of the Change of Committee Particulars had yet been made.[55] On 1 April 2019 Mr Giuseppe Mangeruca, delegate of the Registrar-General, made a decision to refuse to accept the form.[56] The attached reasons for decision state that the constitution of the association does not provide for removal of committee members during their appointment; the model rules that therefore operate to govern such matters allow for removal, but section 50 of the AI Act requires that in the adjudication of disputes within associations the rules of natural justice must be observed; and that the absence of signatures of outgoing committee members suggests that in that respect section 50 of the AI Act had not been complied with. The Registrar-General therefore exercised the discretion to refuse to accept the form.
[55] Exhibit A5 page 360; page 362; page 364; page 366; page 367
[56] Exhibit A5 page 371
A letter from Ms Denise Cubin, Executive Branch Manager, Licensing and Registration at Access Canberra, dated 24 May 2019 reports that the complainant had met with Access Canberra personnel on 2 April 2019, and had asked that the decision to register the annual return, submitted in March 2018 and registered on 26 March of that year, be reconsidered.[57] The letter states that discretion is allowed the Registrar-General with regard to whether or not to register a document; that not enough information was available in March 2018 to satisfy the Registrar-General that he should refuse to register the return; and that after more than a year it was likely that people had relied on the registration.
Evidence of the complainant
[57] Exhibit A5 page 376
As noted above, the complainant did not herself provide a witness statement, but two of her submissions, in particular (Exhibits A3 and A4), include various factual statements. She gave oral evidence and was cross-examined. Her evidence-in-chief largely repeated the facts summarised above from the documentary evidence, and often included additional detail. The complainant said she was elected to the committee as deputy secretary at the AGM on 9 April 2017, but the next day the public officer stood aside and the complainant was asked to take on that role, and she agreed. She was then involved in submitting the annual return to Access Canberra; on the first attempt the form omitted one piece of information, namely the number of members of the association. On the basis of an understanding that the number was somewhere between 110 and 140, the complainant put forward the number as 120.
Later in the year, tensions began to build within the committee and in the Church community. The complainant presented these tensions as arising from competing views about the orientation of the Church in Canberra, and also from what she described as the president’s dictatorial and high-handed style. One point of tension was the presence of members who did not come from Canberra or the surrounding area but from further afield (such as Sydney and Wollongong). Tensions culminated in the events of late 2017 and January 2018. The complainant said she had contacted Access Canberra to ask that a letter be sent urging the association and the committee to abide by its constitution and the AI Act.
The complainant circulated the petition for an extraordinary general meeting in late December, and drafted (in Serbian) an agenda for the meeting, inviting just under 100 members (she had by this time assembled a member roll). Meanwhile the president had made himself public officer (from 8 January 2018) in line with the constitution but without taking a vote or consulting with the association’s members. The day of the extraordinary general meeting, 14 January 2018, was a Sunday, and at the church service that day the letter from the Diocesan Board in Brisbane had been circulated, listing 43 members of the association as having been expelled. The intention of the complainant was to proceed with the meeting, but the president attempted to block it by calling the police in to prevent use of the church hall, and the meeting had been held instead on the oval across the road. The number of participants at the meeting, according to the complainant, was 43 with a further 20 or so who did not vote. Many voting attendees wanted to replace the committee and freeze the accounts; the complainant said she opposed this because she was expecting an AGM on 4 February at which matters could be resolved through normal voting processes.
Towards the end of January one of the complainant’s associates, Mr Mikic, spoke to a friend who was in the president’s group and reported back that paperwork was being completed for a new committee, and suggested that Access Canberra should be alerted. The complainant said this had prompted her to ring Ms Kellie, warn her that no AGM had been held, and suggest caution if the association put forward material to Access Canberra for registration.
In April 2018 the complainant learned that the new committee had been registered, and confirmed that with Ms Kellie. She engaged Meyer Vandenberg to assist and attempted to get another AGM convened, but without success. Eventually Access Canberra responded to her efforts, and on 24 September sent an email agreeing to follow through on her complaints, obtain documents from the committee and undertake a compliance check.[58] She was told to wait three weeks for an outcome. But in fact things just went on without result, although she continued to talk to Access Canberra and pressure staff to take action. In November Ms Kellie and another staff member spoke to her about the need to find a translator for the letter in Serbian from the Diocesan Board; she provided the name of a NATA translator. She was told advice had been sought from the ACT Government Solicitor. Despite all the back and forth, a decision was not made until 1 April 2019, and that decision was adverse.
[58] Exhibit A6 page 55
Under cross-examination, the complainant confirmed that in April 2017 there were between 110 and 140 members of good financial standing, so she had estimated the number at 120, but she had later arrived at the number of 98 members by leaving out 23 members who were from Sydney and elsewhere away from Canberra. That was the number at the time of the meeting on 14 January 2018. She had not thought it appropriate to allow the 23 people who were left out to vote at the meeting, although she admitted that they were financial members.
The complainant also said that she thought that the material for the extraordinary general meeting had been in Serbian at the time. She had drafted the agenda and the resolutions, which had been in handwritten form. When she provided them later, at the request of Access Canberra, she had translated them herself. At the time her expectation had been that they would elect perhaps four new members to the committee on a pro tem basis and the AGM on 4 February would allow elections to be finalised. There had been discussion for some months, but no detailed planning for the replacement of the committee. The letter from the Diocesan Board had encouraged the action that was taken at the meeting.
The complainant was asked about her conversation with a staff member of Access Canberra who she identified only as “Richard”, taking place on 23 November 2018. There had been an exchange about the need to get a certified translation of the letter from the Diocesan Board, although two translations – one by the complainant and the other by the president’s group – were already available. Although she had encouraged the use of her translation, her main point had been that the decision to be taken by Access Canberra did not rest on the contents of the letter. She denied having been told that the investigation had failed to identify any breaches of or offences against the AI Act. There was an exchange regarding a passage in one of the complainant’s submissions: “…their suggestion was that ‘my people/my kind’ are always in conflict, distress and turmoil”.[59] Under questioning the complainant conceded that this was what she had understood or taken from her exchanges with Access Canberra, and not words that had been used by any of that organisation’s staff or a meaning that had been directly or explicitly conveyed to her.
Mr Ilija Batar and Mr Milos Mikic
[59] Exhibit A3 page 133
The witness statements for Mr Batar and Mr Mikic were tendered and taken into evidence as Exhibits A1 and A2 respectively. Both witnesses said that they had explained to the complainant what they had to say and she had drafted the statements. In fact, the statements have long stretches in which they are identical, and without reflecting on the complainant’s integrity they are of dubious value as evidence, not only because they plainly reflect the complainant’s view of things and display little that is individually attributable to their purported authors, but also because, as noted above, they do not touch on the interchange between the complainant and Access Canberra (both witnesses conceded under cross-examination that they had left relations with Access Canberra to the complainant). The statements emphasise Mr Batar’s and Mr Mikic’s long membership of the Church and its association, and set out the events of late 2017 and early 2018, along the lines described above.
Mr Richard Binks
Mr Binks acted as Deputy Director of Licensing and Registrations at Access Canberra from 27 September to 21 December 2018. In that capacity he had some engagement with the complainant and especially with her attempt to secure the registration of the change in committee. In his witness statement Mr Binks recalls receiving a telephone call from the complainant and discussing with her the difficulties that Access Canberra had faced in finding a translator for the letter from the Diocesan Executive Board.[60] Mr Binks recalls that the complainant was frustrated and upset at the slow progress. His side of the conversation was explaining the process and noting that the competing interests within the association were making arguments to Access Canberra along lines similar to those of the complainant. In late October the name of a translator was identified with the assistance of the Serbian Embassy; the complainant also nominated a translator. Mr Binks states that by the end of November a translator had been engaged and a translation was expected within a week.
[60] Exhibit R1
At the hearing, under cross-examination, Mr Binks explained the difficulties in finding a translator for the letter in Serbian. A variety of avenues had been explored, but all proved to be aligned on one side or the other of the dispute within the association. He acknowledged that a translation was already available – indeed one from each side – but said that he wanted a third to benchmark the other two, noting that legal decisions can turn on a word. When asked about the details of the dispute, the reasons why it had taken so long to identify a translator, and the relevance or potential relevance of the letter in Serbian, Mr Binks either could not recall or did not know. He saw his role as collecting information to go to the Regulatory Advisory Committee, an Access Canberra body that advised on regulatory decisions. Because of the structure of arrangements within Access Canberra, he had lost sight of the issue once the letter had been passed to the translator.
Mr Binks saw the critical point for Access Canberra as the existence of strongly divided views within the association, with each side accusing the other of unconstitutional behaviour. Whatever decision was taken, one side or the other would feel aggrieved.
Ms Rachelle Blanch
Ms Blanch has been an Assistant Director in the Licensing and Registrations part of Access Canberra since January 2019. Her witness statement is at Exhibit A2. Ms Blanch was involved with the complainant’s case for registration of the Change in Committee Particulars form (originally submitted by the complainant on 5 September 2018) from January 2019 up to and including the decision to refuse registration of the form on 1 April 2019 and the meeting with the complainant on the following day. Ms Blanch said that because she was also responsible for assembling a chronology of events for the hearing, she had contact with a good deal of the earlier correspondence in the matter.
Ms Blanch stated that the role of her unit in Access Canberra involved scanning the information submitted by associations, to check completeness, legislative compliance and consistency with existing information. Provided it meets those tests it is likely to be accepted without further question. A Change of Committee Particulars form will be scanned to ensure that it has been appropriately signed, and if so, it is likely to be taken to be correct.
Although she was not part of the same Access Canberra office in March 2018, Ms Blanch said that, looking back, there was nothing on the face of the annual return that was registered on 26 March 2018 that would have led her to question whether the form should have been accepted.
The delay in coming to a decision on the Change of Committee Particulars form submitted on 5 September 2019 arose because of the particular complexity of the issue. The matter needed to be considered by two separate units within Access Canberra, which do not operate on a shared database. The volume of documents involved, the number of contacts within the relevant units who had been involved, the number of meetings required, and the need for legal advice all contributed to making the process more complex and drawn out. The complainant added to the complexity with FOI requests and letters to the Minister, all of which took time away from resolving the issue.
Ms Blanch asserted that Access Canberra staff have at all times in their dealings with the complainant acted with respect and without discrimination in respect of the complainant’s Serbian heritage. Ms Blanch repeated the account given by Mr Binks regarding the difficulty of finding a Serbian translator.
Under cross-examination Ms Blanch acknowledged that the forms submitted by the complainant in September 2018 included both a completed annual return form and a completed Change of Committee Particulars form. Although she had significant involvement in preparing materials and a chronology for the present hearing, Ms Blanch said she had limited personal involvement in most of the events recorded. She did have some involvement in the decision of 1 April 2019 and the meeting that took place on the following day, but was not herself a decision-maker in the process.
Ms Wendy Harrison
Ms Wendy Harrison is Assistant Director in the Investigations, Compliance and Enforcement part of the Fair Trading and Compliance Branch of Access Canberra, and held that position at all times material to the present matter. Her witness statement outlines the role and nature of the investigations area, especially with regard to complaints by consumers.[61] Ms Harrison emphasises the degree to which each investigation varies in accordance with judgements about risk (e.g. to consumers) or the potential to affect the disadvantaged or vulnerable, and the way in which the powers of Access Canberra in each instance vary according to the legislation governing the particular matter. In the case of matters under the AI Act, Access Canberra’s powers are limited because the legislation leaves members of an association with the power to manage their own affairs, including by taking action in the Supreme Court to resolve internal disputes.
[61] Exhibit R3
In the case of the complainant’s compliance complaint, Ms Harrison says that she formed the view that at the heart of the matter was a difference of view among members of the association over issues such as the adherence of the Church to particular diocesan structures and whether people living well outside the Canberra region were eligible to be members of the association. These differences had led to competing attempts to secure the support of the association for one or other position. Because the complainant was in frequent contact both with Ms Harrison’s own team and with at least one team elsewhere in the Access Canberra structure, it was difficult at times to know who had the lead and who held all the necessary information.
Ms Harrison says that her unit received the complaint on 21 August 2018. She recounts a meeting with the complainant on 5 September 2018, at which she and a colleague advised the complainant that although Access Canberra could intervene in a matter if there was reason to believe that offences had been committed against the AI Act, there was no basis for intervention if the problem was that members of the association had acted in breach of their own constitution. A dispute of that kind should be resolved by an application to the Supreme Court. Access Canberra undertook, however, to write to the association to raise the breaches asserted by the complainant and to ask for various documents.
Ms Harrison recalls that the complainant was proposing to lodge a “set of documents” with Access Canberra, including a list of committee members. Her team examined the documents later submitted by the president’s group, but did not identify any breaches of the AI Act.
Ms Harrison says that none of the staff in her part of Access Canberra acted towards the complainant with anything other than courtesy and professionalism. Any delay in dealing with the complainant’s matter she attributes to the complexity of the issues and to resourcing pressures.
In oral evidence, under cross-examination, Ms Harrison explained in more detail the powers available to Access Canberra in investigation and enforcement, and the kind of factors that influence how the energies of her team were allocated. She said that the cost to Access Canberra was generally not a major factor in these choices. Ms Harrison said that she recalled discussion relating to the registration of the new committee in March 2018, but had had no involvement herself; nor was she involved with the obtaining of legal advice and the formulation of the advice to the Registrar-General leading to the decision of 1 April 2019.

Consideration

In discrimination matters this Tribunal’s jurisdiction is different in significant ways from that in some other areas. In a discrimination matter one party asserts discrimination by the other; the respondent may be, as here, a government agency, but may equally not be – the respondent may be an employer, a provider of goods or services, a club, and so on. More than in some other areas, discrimination matters have a clearly adversarial flavour. The Tribunal is also vested with extensive court-like powers to remedy the wrong done to a complainant where discrimination is found to have taken place, including by awarding financial compensation.

The causation that the complainant needs to establish, then, is that one (or more) of the complainant’s protected attributes is a real, genuine and not insubstantial reason[105] for the unfavourable treatment. It is recognised in the case law that it is not common to find direct evidence of discrimination; where a court or tribunal finds discrimination, it is usually through inferences, and especially through the cumulative effect of the inferences that may be drawn from all of the circumstances taken together.[106] But the inferences must reflect real probabilities, not simply possibilities, or mere supposition.[107]
[105] This formulation is taken from Kovac v Croatian Australian Club Ltd [2014] ACAT 41, at [90]
[106] Sharma v Legal Aid (Qld) [2002] FCAFC 196 at [40]-[41]
[107] Bell & De Castella and De Castella’s Startsmart for Kids Ltd [2013] ACAT 27 at [15]-[18]
It is at this stage that the complainant’s case comes up against its greatest challenge. None of the evidence advanced by the complainant, with one possible exception that I turn to in more detail below, comes anywhere near meeting the test imposed by paragraph 53CA(2)(b) of the HRC Act. There is nothing in any of the letters and emails between her and Access Canberra in which any kind of adverse or discriminatory comment or reflection is made by that organisation against the complainant because she is Serbian, or the members of her group are Serbian, or because she and the members of her group attend the Serbian Orthodox Church and adhere to the Serbian Orthodox religion or because the association is a church association. There is no evidence from any of those materials, or in the accounts given by witnesses of their telephone conversations, again with the one exception considered below, that suggests that such considerations had any causal role to play in the unfavourable decisions. There is simply no evidence on which the complainant can hang her case.
The same is true with respect to the complainant’s calling as an advocate. The dealings of Access Canberra with those who seek to have decisions taken in one direction or another will usually be met with mixed results, depending on the merits of the representations made. In some areas of Access Canberra’s work, every member of the public or representative of a group with whom the organisation works will be an advocate; decisions will be made, and often routinely made, that do not meet with the expectations or wishes of those dealing with the organisation. That does not allow any conclusion to be drawn that the negative outcomes were arrived at because the member of the public or representative was an advocate for one cause or another, no matter how dogged, enthusiastic, unyielding or persistent they may be. I can see nothing in the exchanges before me that I would describe as unfavourable to the complainant because she was acting as an advocate for her group. Once again, I am unable to discern any causal link between the complainant’s role or calling as an advocate, and Access Canberra’s adverse decisions and unfavourable actions.
The possible exception referred to earlier relates to the conversation the complainant reports from October 2018 with a person at Access Canberra named “Richard”, identified as a member of the Fair Trading – Investigations, Compliance and Enforcement Team. The complainant reports that Richard said that he had been unable to source a Serbian translator who was not tied to either the complainant’s or the president’s group, and further stated that the situation was impossible for his organisation because whatever decision was made one side or the other would be disappointed and upset.
I have no doubt that the complainant is reporting the substance of her conversation with “Richard” with reasonable accuracy. The complainant was long-winded and discursive, but the bald facts she has reported, where confirmation is available, have been corroborated, and no-one has suggested that she is fabricating or exaggerating her evidence (the interpretation she puts on that evidence is a different matter, of course). As far as the facts of the matter are concerned, I regard her as a witness of truth. Only one “Richard” from Access Canberra features in the record of events, and that is Mr Binks, who was in Access Canberra during the period when the telephone conversation took place (although not in the team the complainant identifies). Further, he reported on a conversation with the complainant in terms that align closely with the complainant’s account, with regard to the translation and the risk to Access Canberra from the decision that had to be taken. The complainant did not, in cross-examination, challenge Mr Binks to identify himself as “Richard”, but I do not need to make a finding on the point, as nothing rests on the identity of the particular Access Canberra staff member with whom the complainant spoke. I accept that the conversation took place.
Might the unnecessary complications in translating the letter, have been real, genuine and not insubstantial causes of the delay in taking a decision? Naturally any document in a foreign language will require some period of time for translation, but it would be absurd if every such requirement gave rise to a possible claim of discrimination as a result. If the time taken in this instance was more than it should have been, on what basis can the complainant’s Serbian ethnicity, or Serbian Orthodox religious affiliation, or representation of a church association, or calling as an advocate, be said to be the cause? Hypotheses along those lines require speculation about motive and intention; and if Access Canberra, or “Richard” as an agent of Access Canberra, intended or wished to cause a detriment to the complainant, delaying a decision or generally adding complication to the decision-making process rather than immediately taking an adverse decision seems an odd and illogical way of going about it.
My willingness to reach that conclusion is reinforced by the existence of plausible alternative explanations for the delay. One such explanation is bureaucratic inefficiency, which is always unwelcome and indeed may be unacceptable, but is nevertheless common.
Another plausible explanation is that on 26 March 2018, either disregarding or unaware of Ms Kellie’s warning that no action was to be taken without consultation, Access Canberra’s staff accepted and registered the documents submitted by Mr Ilic. (I note too that there are details apparent in the documentation submitted for registration that might invite speculation: the Change of Committee Particulars is dated 25 February 2018 but the Annual Return is dated 25 March 2018, the day before registration of the documents on 26 March 2018.) The preferable course in March 2018 would have been to ensure that the association resolved its internal differences – differences of which, as noted earlier, Access Canberra was aware – and that any documentation that subsequently came forward reflected that resolution.
It is my hypothesis that Access Canberra, having made a rash or careless decision, then had to find a way of dealing with the complainant, who was upset and extremely persevering. After she submitted her own documents in September 2018 it may well be that Access Canberra was happy to postpone the day when a decision that would be unpopular with one group or the other would have to be made. Mr Binks noted at the hearing the risk that any decision would be deeply unpopular with one faction or the other, and the complainant reported the same sentiment having been expressed in her conversation with “Richard”.
The sense of being discriminated against is one that is highly subjective: people may develop a strong sensitivity to discriminatory treatment, and another person not sharing that person’s background, circumstances and attributes cannot expect to appreciate fully that sensitivity. But the Discrimination and HRC Acts set an objective test: not only the person discriminated against but also the Tribunal must be persuaded that on the balance of probabilities the unfavourable treatment is caused by the person’s particular protected attributes. Even taking into account the cumulative effect of any and all inferences that may reasonably be drawn (and they in this instance are few), the complainant in the present matter has failed to make out her case.
Was the complainant victimised?
Section 68 of the Discrimination Act makes it unlawful for a person to subject another person to any detriment because the other person has taken or proposes to take discrimination action, or because they believe that the other person has done so or proposes to do so. ‘Discrimination action’ is broadly defined, to mean discrimination complaints or proceedings, or the production of documents or other evidence under the Discrimination Act or, in relation to a discrimination complaint, the HRC Act. Under section 71 unlawful acts are not offences by virtue of being unlawful; section 98 of the HRC Act creates a victimisation offence, but the jurisdiction of the Tribunal is limited to hearing and deciding “discrimination complaints”, that is, complaints made under section 42(1)(c) of the HRC Act about unlawful acts under the Discrimination Act.
The complainant asserted that once staff at Access Canberra were aware that she was proposing to take her matter to the HRC their attitude to her changed for the worse. She dated this change to the period after 20 April 2018, when she became aware of the registration of documents submitted by the president’s group. There are numerous exchanges between Access Canberra and the complainant after that date, but I cannot detect anything that I would regard as evidence of a change in attitude or behaviour, or of the subjection of the complainant to detriment, because she had commenced a discrimination action. Once again it appears that the complainant’s awareness of some change in treatment is not supported by objective evidence. I cannot find that the complainant has been victimised by Access Canberra.
Other considerations
The complainant made a number of references to a foundation case in administrative law, Anisminic v Foreign Compensation Commission,[108] (Anisminic) although it was not clear to me how she proposed that the case casts light on the present matter. The case sets out some of the fundamental considerations relating to two areas of administrative law, namely the distinction, in decisions of courts and tribunals, between jurisdictional error and error within jurisdiction; and the extent to which privative clauses exclude the judicial review jurisdiction of courts. After careful examination of the case, I cannot see any relevance of the judgments in Anisminic to the present matter, which is a discrimination action before a tribunal, and not judicial review by a court.
[108] [1969] 2 AC 147
The complainant also drew to my attention Schedule 1 of the Competition and Consumer Act 2010 (Cth) (the CCA). The Schedule deals with cartel conduct, reproducing most of the provisions of Part IV of the CCA. The complainant did not explain the application of the Schedule, but in her closing submissions suggested that the CCA was relevant because of its provisions dealing with unconscionability. Schedule 1 to the CCA does not deal with unconscionable conduct, but that concept is included in Schedule 2, which is the Australian Consumer Law and is given effect by Parts XI and XIA of the CCA. It largely applies to corporations. Schedule 2 includes at Part 2-2 provisions that prohibit unconscionable conduct in the sale and acquisition of goods and services. ‘Unconscionable conduct’, as acknowledged in Part 2-2, is a concept recognised in equity; contracts may, for example, be set aside because they are vitiated by unconscionable conduct. But the ambit of the CCA is confined to commercial activity (to activities of a “business”, including business activities by government). The administrative oversight of the AI Act by Access Canberra is not a business or a commercial activity. In any case, whether or not Access Canberra has engaged in unconscionable conduct is largely irrelevant in the context of a discrimination action under the Discrimination and HRC Acts: what the complainant must meet is the causation test in those Acts, and that she has failed to do.
During the course of the hearing the complainant made a number of comments relating to the land held by the Free Serbian Church in Canberra, and the papers include caveats and other materials relating to those holdings. One of the benefits of incorporation under the AI Act is that an incorporated association may hold title to land. The Free Serbian Church’s Canberra land is held by the association. The complainant in her closing submission attempted to present the conduct of the president’s group as a “land grab.” The respondent objected, on the basis that the contention had not been raised earlier. That objection was well founded; in any case, I cannot see how the motivation and intention of the president’s group with respect to the land influences the conclusions I might arrive at on the questions of discrimination and victimisation by Access Canberra that are at the heart of this case.

Conclusion

Throughout the hearing the complainant tried to strengthen her argument with legal or quasi-legal phrases such as “the rule of law”, “procedural fairness”, “natural justice” and “due process”. She was very clearly of the view that Access Canberra had dealt with her representations in a way that was not fair, open and even-handed. She may be correct, but any unfairness or wrong that she suffered was not discrimination and it was not victimisation. Accordingly, the complaint is dismissed.
………………………………..
Senior Member M Hyman

Date(s) of hearing	15 & 16 October 2020
Applicant:	In person
Counsel for the Respondent:	Mr Oram
Solicitor for the Respondent:	ACT Government Solicitor