Complainant 202012 v Australian Capital Territory (As Represented BY the Director-General, Community Services Directorate (Discrimination) - [2023] ACAT 17

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 202012 v AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE (Discrimination) [2023] ACAT 17

DT 12/2020

Catchwords: DISCRIMINATION – where respondent denied the complainant kinship and carer status in respect of her grandchildren – direct discrimination alleged –discrimination alleged in provision of goods and services – where protected attribute is an irrelevant criminal record – whether assessing and making a decision on kinship carer status is provision of a service – whether the complainant had an irrelevant criminal record – whether the complainant was treated unfavourably – whether unfavourable treatment was because of complainant’s irrelevant criminal record – whether rebuttable presumption of discrimination established by complainant – whether presumption rebutted by respondent – whether allegedly discriminatory action covered by exception for action necessarily done in compliance with a statutory requirement – possible remedies
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22B, 54
Anti-Discrimination Act 1977 (NSW) ss 47, 49M
Children and Young People Act 2008 ss 7, 8, 63, 64, 65, 336, 506, 508, 512, 514B, 514C, 516, 858, 859, 862
Crimes (Sentencing) Act 2005 s 17
Discrimination Act 1991 ss 4AA, 4A, 7, 8, 20, 30, 121A
Discrimination Amendment Act 2016 ss 20, 32
Human Rights Commission Act 2005 ss 42, 51, 53A, 53CA, 53C, 53E, 78, 82, 88
Interpretation Act 1987 (NSW) s 33
Legislation Act 2001 s 139
Ombudsman Act 1974 (NSW) s 35A
Spent Convictions Act 2000 ss 3, 6, 12, 16, 19

Cases cited:AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140
Australian Capital Territory v Wang [2019] ACAT 65
Bickle v State of Victoria [2020] FCA 168
Butcher v The Key King Pty Ltd [2000] ACTDT 2
Director-General, Department of Community Services v MM [2003] NSWSC 1241
Hampson v Department of Education and Science (1991) 1 AC 171
IW v City of Perth [1997] HCA 30
Mulholland v Australian Electoral Commission [2004] HCA 41
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Purvis v New South Wales [2003] HCA 62
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
The Ombudsman v Laughton [2005] NSWCA 339
Waters v Public Transport Corporation [1991] HCA 49

List of

Texts/Papers cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8^th ed, 2014)

Tribunal:Senior Member M Hyman

Date of Orders:  14 March 2023
Date of Reasons for Decision:      14 March 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 12/2020
BETWEEN:
COMPLAINANT 202012
Applicant

AND:
AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE)
Respondent

TRIBUNAL:Senior Member M Hyman
DATE:14 March 2023

ORDER

The Tribunal orders that:

The Director-General of the Community Services Directorate is to direct relevant decision-makers that in taking kinship carer decisions under the Children and Young People Act 2008 they must take applicants’ criminal records into account in accordance with the provisions of section 65 of that Act.
The Community Services Directorate is to pay $5,000 in compensation to the complainant.
………………………………..
Senior Member M Hyman

REASONS FOR DECISION

Introduction

This decision is about whether the complainant in the present matter, known as complainant 202012 (the complainant), was discriminated against by the respondent, the Community Services Directorate of the ACT Government (the Directorate).
The complainant approached the ACT Human Rights Commission (HRC) over the period August to October 2019, asserting that she had been discriminated against by Child and Youth Protection Services (CYPS), which is part of the Directorate. The discrimination was alleged to have occurred because CYPS took into account one or more irrelevant criminal convictions in a decision about kinship and carer responsibilities for her grandchildren (this decision is referred to as the impugned action or the impugned decision). The Commission treated the approach by the complainant as a complaint under section 42(1)(c) of the Human Rights Commission Act 2005 (HRC Act). The Directorate and the complainant were unable to settle the complaint by conciliation, and on 21 February 2020, the Commission closed the complaint under section 78(1)(f) of the HRC Act. At the complainant’s request, the Commission referred the complaint to this tribunal under section 53A of the HRC Act. That referral confers on this tribunal jurisdiction to hear and decide the complaint, and if the tribunal finds unlawful discrimination, to make remedial orders under section 53E of the HRC Act.
The matter came to its present status by a long and sometimes convoluted process. Discrimination complaints are decided under the application of both the Discrimination Act 1991 (the Discrimination Act) and the HRC Act. To succeed, a complaint must meet a number of tests, and the complainant must identify a number of parameters of the complaint (such as the complainant’s protected attribute and the area of public life in which the alleged discrimination occurred). There is an expectation that the essential parameters of the complaint will be set out before the hearing process commences, and the supporting evidence made available, at least in outline. This is needed both to clarify the scope of the matter so as to allow it to be resolved, and also because the respondent is entitled to know the case to be answered with reasonable precision, so as to be able to prepare a defence.
As a result of the above considerations, attempts were made to gather detailed outlines of the complainant’s case and the evidence in support. Over an extended period and on a number of occasions, orders were made at directions hearings for the provision of witness statements and supporting evidence, but discrimination matters are complex, and it is sometimes difficult for a self-represented complainant to assemble and organise the material needed to define a case with any precision. The complainant has provided a large volume of material, but it is not organised in a way that clearly sets out and supports her case.
It became clear that the complainant would have difficulty in assembling a case in the organised way that would usually be expected. This would make the conduct of a hearing more difficult because the diffuseness of the complainant’s case would make it hard to gather evidence with any efficiency. There being already a large body of material that could be drawn on, however, the parties agreed at a directions hearing before me on 24 February 2022 that the matter should be decided on the papers, as provided for under section 54 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). I made orders at the time that the parties should provide any further evidence or submissions by four weeks after the directions hearing, that is by 24 March 2022.
The impugned decision was itself remade three times, as detailed below. Before the 24 February 2022 deadline for evidence and submissions was reached, on 4 March 2022, the complainant lodged an application for administrative review of the most recent of the remade decisions (the decision of Ms Jenna Schoer dated 9 July 2021). The possibility of this development had been discussed in a number of directions hearings under the present matter as it was reasonably clear that the complainant’s difficulty with the impugned decision was not only that she thought it discriminatory, but also that she thought it wrong on the merits. In light of the new application, the orders I made on 24 February 2022 were set aside on 24 March 2022. Presidential Member Robinson dismissed the new application on 26 April 2022. On 23 June 2022, I reinstated orders similar to those of 24 February 2022, seeking further evidence and submissions by 15 July 2022. The respondent sought and was granted additional time to lodge its submissions, which were filed on 18 July 2022.
The papers now before me comprise a large volume of material from the complainant and some material from the respondent. From the complainant there is material about her personal history and a great deal about the effect of the impugned decision on her and her life. Some of the material (such as the medical evidence) may have been supplied to support requests for adjournment or the extension of deadlines for material to be provided. Generally speaking, the material is of variable relevance to the matters at issue. The material is set out in the table below.

Date Document(s) Number of pages

None Various pieces of legislation and international conventions

12 July 2021 Email covering remade decisions by Ms Emma Selby (dated 1 February 2021) and Ms Jenna Schoer (dated 9 July 2021)

23 July 2021 General complaint about dealings with CYPS and the ACT Government 1

23 July 2021 General complaint about dealings with CYPS and the ACT Government 1

16 August 2021 Medical evidence 7

18 August 2021 Medical evidence 3

19 August 2021 Medical evidence 4

25 August 2021 Statement alleging police abuse with criminal history 6

28 August 2021 Draft witness statement including personal history and accusations against police and others 13

No date, received 16 November 2021 Extract from website dealing with the rule of law (apparently from the Rule of Law Education Centre) 6

15 December 2021 Email detailing court orders and dealings with CYPS 1

28 January 2022 Drawings and paintings by daughter; one photograph 6

28 January 2022 Email attaching home schooling provisionary certificate for one of complainant’s children; list of school activities for one child; recommendation by a doctor in 2004 for suitability of complainant for custody of children; record of dialogue dating from 2004 between one child and doctor regarding child’s preference for parent 11

31 January 2022 Draft statement identifying documents being pursued and possible witnesses 12

2 February 2022 Email alleging false reports and attaching two police reports 3

8 February 2022 Email; alleging mistaken and misspelled names 2

9 February 2022 Draft statement describing family behaviour and past events 4

15 February 2022 Email regarding complainant’s interest in rockabilly dance, with posters, photographs and drawings 5

29 April 2022 Email alleging torture by police and forced adoption, attaching article from Canberra Times; drawings by grandchild allegedly indicating child’s pain and suffering; apology to Stolen Generations by then Chief Minister 4

No date, but apparently mid July 2022 Email asking for various legislative provisions to be taken into account 1

The impugned decision includes the names of the case officer who compiled the material on which the kinship carer decision was taken and made a recommendation on whether kinship carer status should be granted, and the delegate of the director-general who made the decision and conveyed it to the complainant. I see no reason why these officials should be identified by name, given that under the Discrimination Act the CYPS and the Directorate are (with exceptions not argued in this case) vicariously liable for any discriminatory behaviour by their staff. Accordingly, this decision identifies them as, respectively, the Case Officer and the Delegate.
The respondent provided:
(a)witness statements by the Delegate (the Delegate’s witness statement) and Ms Vicki Anderson (the Anderson witness statement), the two Directorate officers who made the decisions in 2016 and 2017 denying the complainant the carer status she was seeking;
(b)the T-documents, a numbered compilation of the Directorate’s documents relating to this matter (the T-documents); and
(c)a submission by the Directorate.
The complainant’s case must be brought against a juridical person, who may sue and be sued. The appropriate body is the ACT Government, as its Directorates do not have legal personality; thus, the respondent in this matter is the Australian Capital Territory, but in practice the matter concerns actions by the Directorate and by CYPS in particular, and it is those bodies and their actions that are the focus of this decision.

Legislative framework

All discrimination matters in the ACT are managed under the combined provisions of the Discrimination and HRC Acts. The alleged discrimination in this matter concerns the complainant’s kinship and carer responsibilities for her grandchildren, and the Children and Young People Act 2008 (the CYP Act) is relevant in that context, and because the protected attribute is the complainant’s irrelevant criminal record, the Spent Convictions Act 2000 (the SC Act) is also relevant.

The Discrimination Act and the HRC Act

What constitutes discrimination in the ACT is set out in the Discrimination Act, and complaints are made, and responses are 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 irrelevant criminal record at paragraph 7(1)(k). The Dictionary to the Discrimination Act defines “irrelevant criminal record” as follows:
irrelevant criminal record, in relation to a person, means a record relating to an offence, or an alleged offence, if—
(a)     the person has been charged with the offence but—
(i)a proceeding for the alleged offence is not finalised; or
(ii)the charge has lapsed, been withdrawn or discharged, or struck out; or
(b)     the person has been acquitted of the alleged offence; or
(c)     the person has had a conviction for the alleged offence quashed or set aside; or
(d)     the person has been served with an infringement notice for the alleged offence; or
(e)     the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which discrimination arises; or
(f) the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000, for the offence.
Note The Spent Convictions Act 2000 sets out which convictions can be spent (see that Act, s 11) and when a conviction is spent (see that Act, s 12).
Section 7(2) provides that each attribute extends not only to a person who has that attribute, but also 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.
Section 8 of the Discrimination Act defines discrimination. The definition creates two categories: direct 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”;[1] 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”.[2] Indirect discrimination does not occur, however, if the imposed condition or requirement is reasonable in the circumstances.[3] Section 4A(1) provides that “doing an act includes failing to do the act” and section 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.
[1] Discrimination Act 1991, section 8(2)
[2] Discrimination Act 1991, section 8(3)
[3] Discrimination Act 1991, section 8(4)
Part 3 of the Discrimination Act sets out forms of behaviour that constitute unlawful discrimination in particular areas of public life. Section 20 reads as follows:
20 Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)     by refusing to provide those goods or services or make those facilities available to the other person; or
(b)     in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)     in the way in which the provider provides those goods or services or makes those facilities available to the other person.
The Discrimination Act provides a number of exceptions and exemptions of varying generality so that actions covered by the exceptions and exemptions are not unlawful. A potentially relevant example in the present matter is section 30 which provides that an action done “necessarily for the purpose of complying with a requirement” of a Territory law is not unlawful.
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 events occurring on two or more occasions. Under Division 4.2, the HRC has discretion to deal with complaints in various ways, including conciliation.[4] If 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.[5]
[4] Human Rights Commission Act 2005, section 51
[5] Human Rights Commission Act 2005, sections 53A, 82, 88
Where a complaint is referred to the ACT Civil and Administrative Tribunal (ACAT), the parties are the complainant and the person complained of.[6] Section 53CA of the HRC Act specifies how a discrimination complaint is to be decided and subsections 53CA(2), (3) and (4) read as follows:
[6] Human Rights Commission Act 2005, section 53C
(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.
NoteThe 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 the 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 the ACAT must take into account in determining the amount of compensation are listed in subsection 53E(3).
It is 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 SC Act

The purposes of the SC Act are set out in section 3 of that Act, headed “Overview of Act”, the first two subsections of which are as follows:
(1) This Act provides a scheme to limit the effect of a person’s conviction for certain offences if the person completes a period of crime-free behaviour.
(2) Under the scheme, after completion of a period of crime-free behaviour, a conviction to which the scheme applies is regarded as spent and, subject to certain exceptions, does not form part of the person’s criminal history and may only be used for certain purposes.
For the purposes of the SC Act, a person is convicted whether the conviction is summary or on indictment, and where the person is charged and a court finds the person guilty (including where no conviction is recorded).[7] A conviction is spent, relevantly, when the crime-free period relating to the conviction is completed, or when a charge is dismissed without a conviction, or if a behaviour order has been made, where any condition imposed under that order has been satisfied.[8]
[7] Spent Convictions Act 2000, section 6
[8] Spent Convictions Act 2000, section 12
The consequences of a conviction becoming spent are set out in section 16:
What are the consequences of a conviction becoming spent?
If a conviction of a person is spent—
(a)     the person is not required to disclose information about the spent conviction to anyone; and
(b)     a question about the person’s criminal history is taken not to refer to the spent conviction, but to refer only to any of the person’s convictions that are not spent; and
(c)     in applying an Act to the person—
(i)a reference to a conviction (however expressed) is taken not to refer to the spent conviction, but to refer only to any of the person’s convictions that are not spent; and
(ii)a reference to the person’s character (however expressed) does not allow or require anyone to take the spent conviction into account.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
Section 19 details exclusions from the operation of section 16, relevantly as follows:
Exclusions
(1) Section 16 does not apply in relation to an application by a person—
…
(b)to be appointed, employed or otherwise engaged (whether or not for financial reward) in any other capacity—
(i) in relation to the care, instruction or supervision of children, older people or people with a disability; or
…
(d)to be permitted to provide care, instruction, supervision or any other services for children, older people or people with a disability; or
(e)for registration under the Working with Vulnerable People (Background Checking) Act 2011.
The operation of section 16 is also excluded from any proceedings before a court.[9]

The CYP Act

[9] Spent Convictions Act 2000, section 19

The CYP Act establishes a detailed framework for the protection of the interests of children and young people in the ACT. The objects of the Act are focused on the care, wellbeing and protection of children and young people, and on providing the conditions and services that will allow them to flourish.[10] The best interests of children and young people are the paramount considerations in decisions made under the Act.[11]
[10] Children and Young People Act 2008, section 7
[11] Children and Young People Act 2008, section 8
Chapters 10-19 of the CYP Act deal with the care and protection of children and young people.[12] Some of the groundwork for the chapters is laid earlier in the Act: the director-general may approve “suitable entities” for nominated purposes[13] and in deciding whether an entity is suitable for a given purpose, must consider certain information, including “suitability information”.[14]
[12] Children and Young People Act 2008, section 336
[13] Children and Young People Act 2008, section 63
[14] Children and Young People Act 2008, section 64
Suitability information is defined in section 65 as follows:
What is suitability information?
(1) In this Act:
suitability information, about an entity, means information about the following:
(a)any conviction of, or finding of guilt against, the entity for—
(i)an offence relating to the provision of services for children or young people; or
(ii)an offence against a child or young person; or
(iii)an offence involving a child or young person; or
(iv)an offence involving violence; or
(v)a sex offence; or
(vi)an offence involving dishonesty or fraud; or
(vii)an offence involving possession of, or trafficking in, a drug of dependence or controlled drug; or
(viii)an offence against an animal;
(b)any proven noncompliance by the entity with a legal obligation in relation to providing services for children or young people;
Example
the entity is a licensed proprietor of a childcare service and the licence is suspended for safety reasons under s 763 or under a law of another jurisdiction that substantially corresponds to s 763
(c)any refusal of an application for a licence or other authority (however described) in relation to providing services for children or young people;
(d)the soundness of the entity’s financial reputation and the stability of the entity’s financial background;
(e)the entity’s reputation for honesty and integrity;
(f)whether the entity has proven experience or demonstrated capacity in providing services for children and young people;
(g)whether a child concern report about the entity has been received by the director‑general and any action that has been taken in response to the report by the director‑general or a court or tribunal;
(h)for an entity in relation to suitability for the purpose of foster care—information in paragraphs (a) to (g) for each other adult member of the entity’s household;
(i)any other consideration relevant to the entity’s ability to provide high quality services for children or young people.
(2) To remove any doubt, the information may be about any circumstance or thing mentioned in subsection (1) whether inside or outside the ACT.
Example
refusal in Queensland of an application for a licence in relation to providing services for children or young people
In certain circumstances where a child or young person may be at risk, the director-general may have daily responsibility for a child or young person.[15] The director-general must then (with certain exceptions not presently relevant) place the child or young person with a kinship carer, foster carer, or residential care service.[16] The director-general may approve a person as a carer[17] and in considering whether to approve a carer must take into account the suitability information for the person.[18] The director-general may specifically authorise a kinship carer to have parental responsibility for a child or young person for which the director-general has daily care responsibilities.[19]
[15] Children and Young People Act 2008, section 506
[16] Children and Young People Act 2008, sections 512, 508
[17] Children and Young People Act 2008, section 514B
[18] Children and Young People Act 2008, section 514C
[19] Children and Young People Act 2008, section 516
The director-general may seek information of certain kinds from certain people and entities for the care and protection of children and young people. The director-general may seek[20] “safety and wellbeing” information[21] from “information sharing entities”,[22] which includes the police.

Issues

[20] Children and Young People Act 2008, section 862
[21] Children and Young People Act 2008, section 858
[22] Children and Young People Act 2008, section 859

In order to succeed in a discrimination complaint, the complainant must meet each of the elements that make up the definition of discrimination in section 8 of the Discrimination Act and must establish that the impugned action or actions occurred in a relevant area of public life. The complainant has not assembled her case in a coherent and organised way, but the essential parameters of her complaint are clear from the email exchange with the HRC and the referral of her matter to the ACAT. In essence, it is her contention that the respondent discriminated against her by taking into account an irrelevant criminal record when deciding on the care of her grandchildren; and that the decision falls within the ambit of the definition of the provision of goods, services and facilities in section 20 of the Discrimination Act.
The complainant has made a complaint of direct discrimination and makes no claim for indirect discrimination, so far as I can determine. Although it is possible that a set of facts will support either or both forms of complaint, no argument in respect of indirect discrimination has been put. Nor does it appear that the facts of the matter provide a satisfactory ground for an indirect discrimination claim. No requirement or condition has been imposed; CYPS took a decision denying the complainant kinship carer status for her grandchildren, and it is that decision with which the complainant has taken issue.
The issues for resolution, then, put simply, are:
(a)whether the impugned decision constituted unlawful discrimination against the complainant; and
(b)if so, what remedial orders should be made.
In practice, the first of the above issues benefits from being divided into a series of smaller issues, testing each of the components of the claim against the criteria set in the Discrimination and HRC Acts. On that basis, the issues for resolution are:
(a)whether decisions on kinship and carer responsibilities by CYPS, taken under the CYP Act, fall within the definition of the provision of goods, services and facilities in section 20 of the Discrimination Act;
(b)whether the complainant had an irrelevant criminal record within the terms of the definition of that phrase in the Discrimination Act;
(c)if so, whether the impugned decision was unfavourable to the complainant;
(d)if so, whether the decision was unfavourable to the complainant because of the complainant’s irrelevant criminal record;
(e)whether the complainant has established a rebuttable presumption under section 53CA(2) of the HRC Act;
(f)if so, whether the respondent has successfully rebutted that presumption; or
(g)alternatively, whether the respondent has established that the matter is covered by an exception or exemption;
(h)whether the Directorate unlawfully discriminated against the complainant; and
(i)if so, what remedies should be ordered.

The facts of the matter

In a general sense, the facts in this matter are not disputed. The complainant’s criminal record consists first of three offences dating from 1987 when she was 17 years old, and one further offence occurring in 2010. The three offences from 1987 occurred on two successive days and consist of two counts of offensive behaviour in a public place (one on one day and one on the next), and one of “escape, break out of custody”. The complainant appeared on the charges before the ACT Children’s Court. On the earlier charge of offensive behaviour, the complainant was admonished and discharged with no finding of guilt. On the later of the offensive behaviour charges, a good behaviour bond of $100 was imposed for 12 months, and on the escape from custody charge the complainant was fined $50.[23]
[23] T-documents, page 33
In 2010, the complainant was charged with driving a motor vehicle with a level of alcohol in the blood above that permitted. The ACT Magistrates Court found the offence proved without conviction under section 17(2)(b) of the Crimes (Sentencing) Act 2005 and imposed a good behaviour order for six months with a bond of $500.[24]
[24] T-documents, page 33
The complainant’s family circumstances are that she had four children, and one of her sons had three children of his own. In 2016, the complainant applied to CYPS to be appointed kinship carer of these three grandchildren.[25] CYPS undertook a preliminary kinship carer assessment and the Delegate, identified as “Operations Manager South” in CYPS, decided not to authorise the complainant as a kinship carer for her grandchildren under the CYP Act.[26]
[25] Apparently received by CYPS on 11 August 2016, see T-documents, page 25
[26] T-documents, pages 1-27
The decision comprises three distinct documents. The first is the preliminary kinship carer assessment and recommendation which appears to have been prepared by the Case Manager. This document presents as a compilation of the material assessed as potentially relevant and recommends that the application be rejected. The page evidently intended for the decision-making step includes the Case Manager’s name, but not her signature, with the date of 6 December 2016. There is a signature by a Team Leader (presumably the Case Manager’s supervisor) dated 5 December 2016; and a signature by the Delegate, also dated 5 December 2016, with a checked box explicitly refusing to authorise the complainant as kinship carer. The second document is a letter conveying the decision to the complainant, signed by the Delegate and dated 6 December 2016 in typed material at the commencement, but with a handwritten date of 22 December 2016 accompanying the signature. The letter includes no explanation of how the decision was arrived at, and there is no mention of the complainant’s criminal record. The third document is a statement of reasons, and it is that document that sets out what the Delegate appears to have taken into account, out of the compiled information in the assessment, and explains how and why she arrived at her decision. It is signed by her and dated 23 December 2016.
These three documents – referred to, henceforth, as the assessment, the notification letter and the statement of reasons – deal with the complainant’s criminal record in different ways. As the notification letter does not mention the complainant’s criminal history, I do not need to refer further to it. The assessment compiles a significant quantity of information under various headings, covering several different aspects of the complainant’s life. The references to the complainant’s criminal record are as follows:
(a)Part 1 of the document is headed “Details”. One question asks whether the applicant for kinship carer status has disclosed a criminal history; a check box is marked “yes”.[27]
(b)Part 4 of the document is headed “Formal suitability information considerations”, assessing the information required under section 65 of the CYP Act. Sub-heading 4.1 is “National criminal history check” and under that heading is the following information:[28]
Drive motor vehicle with alcohol in blood
Offensive behaviour in a public placeX2
Escape, break out of custody
On the same day in 2014 [the complainant] telephoned 4 times and threatened to kill herself and the police attended the property to check her welfare
(c)At the end of section 4.4, headed “Summary of suitability information” there is a reference to “criminal history” with an exact repeat of the information from section 4.1.[29]
[27] T-documents, page 5
[28] T-documents, page 12
[29] T-documents, pages 13-14
In the statement of reasons there are several sections that all appear to be explaining the reasons for the rejection of the complainant’s application. The most substantive of these sections begins:
In relation to s65 of the Children and Young People Act 2008 I have not assessed [the complainant] as a suitable entity as a kinship carer as there is a history of a conviction in relation to drive motor vehicle with alcohol in blood, 2 times offensive behaviour in a public place and escape, break out of custody.
There follow a further three paragraphs that relate to the complainant’s previous interactions with CYPS, her relations with members of her own family and her parenting skills and history. Further on in the statement there is the following passage:
[The complainant] is not assessed as a suitable entity for the purpose of being a Kinship carer for [names of children redacted]. CYPS are not confident [the complainant] could carry out the daily and or long term responsibilities on a consistent basis in order to meet all the children’s [names redacted] needs.
The final substantive part of the statement is preceded by the following passage:
Statement of reasons
This is a statement explaining the decision for non approval of a person to be a kinship carer. The decision considers information and evidence provided in the preliminary kinship carer assessment or the comprehensive kinship carer assessment.
The statement that follows the above explanation is as follows:
The Preliminary Kinship carer assessment demonstrated [the complainant] is willing to be a Kinship carer for her grand children. However there are issues pertaining to her criminal history and the child protection history involving her children.
The Delegate provided a witness statement dated 12 July 2022, in which she stated that the complainant’s criminal history “did not carry much weight” in the decision-making process in comparison to other matters;[30] and again that although “some regard” was given to the complainant’s criminal history, “it carried no significance” compared to other considerations.[31]
[30] The Delegate’s statement at [15]
[31] The Delegate’s statement at [16]
It appears that the complainant wrote to CYPS seeking a review of the Delegate’s decision. On 17 March 2017, Ms Vicki Anderson, identified as “Senior Manager South” for CYPS, conducted a review of the decision (the Anderson decision) and arrived at the same outcome that Ms Anderson decided once again not to authorise the complainant as kinship carer for her grandchildren. In her decision which appears to have been conducted as a merits review in the sense of a fresh decision taking into account the available evidence, Ms Anderson makes limited reference to the complainant’s criminal history. She mentions the complainant’s criminal record as an element in the Delegate’s statement of reasons and includes the record as one of the documents taken into account, but her summary of reasons for arriving at the decision to deny kinship carer status makes no reference to the criminal record. In a witness statement dated 14 July 2022, Ms Anderson gives an explanation of how she arrived at her decision and once again does not mention the complainant’s criminal history.
There were two subsequent decisions remaking the decision alleged to be discriminatory, both made in 2021. On 1 February 2021, an independent social worker, Ms Emma Selby, made an assessment of the complainant’s suitability to be an approved carer (the Selby decision), concluding that she was not suitable for that role. On 9 July 2021, Ms Jenna Schoer, a delegate of the Director-General of the Directorate, made a decision not to approve the complainant as a carer under the CYP Act (the Schoer decision).
The complainant approached the HRC in August 2019, asserting that the initial decision of CYPS – i.e., the impugned decision – had discriminated against her. The series of emails in which she raised her complaint starts as follows, on 15 August 2019:
To start the process of lodging a complaint against child protection.
I have attached the outcome of the kinship assessment.
[Case Officer – name redacted] did not to [sic] a full preliminary assessment and she did not do a comprehensive assessment at all.

On the following day, 16 August 2019, the complainant sent a further message:
Child protection and legal aid often referred to the grandchildren as being aboriginal which we are not. There is another family with the name [redacted] and I am concerned that they are again confusing information.
They made numerous mistakes like this with my own children and were referring to other families. Child protection and other departments don’t read paperwork properly and sometimes not at all. This is disturbing.
On 20 August 2019, the complainant sent the following email:
I have attached a copy of a police check on myself that I applied for myself.
As you will see there are no criminal convictions.
One of the incidents occurred when I was 17 which was an illegal detention which I as a Forgotten Australian was apologised to by the Australian government. I am seeking compensation for this through redress, this and the sexual assault by a gaurd [sic] I suffered for the night when I was put in Quamby for the night.
The second incident of low grade DUI, I was also not guilty but I believe that this was further institutional abuses by the courts. The judge still gave me a good behaviour bond. I was going to appeal through the supreme Court but due to not being able to afford it, nor having access to justice anyway (a human rights violation) I could not appeal this decision. I was given a good behaviour bond as it was also considered a first offence.
These are not reason for not allowing me kinship nor reason for kidnapping my daughter which actually happened prior to the later incident anyway.
I also have a current working with vulnerable people card,
On 2 September 2019, the complainant sent a further email:
I have attached my criminal check/
Which as you can see I have no criminal convictions.
How do you justify this as being any reason for refusing me my grandchildren? Or reason to destroy my innocent family?
One of these happened when I was 17 and I received an apology from both the forgotten Australian inquiry and Royal Commission and have a right to redress!!
The other one I was innocent, it was institutional abuses and I couldn’t afford to take to the supreme Court and due to institutional abuses and no access to justice there was no point. This another issue dealt with at the Royal Commission and since apologised to for as well.
The Australian government and the ACT government both said we survivors/victims would be supported. And the government’s institutions would be accountable and transparent.
No-one in child protection has investigated and child protection involvement was purely nefarious. As to that of anyone who made reports about me to child protection.
The complainant’s final message in this set of exchanges, dated 9 October 2019, was as follows:[32]
I am happy to go ahead with individual reports to start with. Starting with the complaint about my irrelevant criminal convictions.
Could you please call me again?
[32] T-documents, page 36
On 16 October 2019, the Discrimination Commissioner at the HRC, Ms Karen Toohey, wrote to the Director-General of the Directorate conveying the essence of the complaint – taking account of an irrelevant criminal record in the provision of goods, services and facilities and seeking a response. Ms Toohey described the complaint in the following terms:
[name redacted]’s complaint is that her irrelevant criminal record was unlawfully taken into account in a decision of December 2016 where she was assessed as not suitable to be a kinship carer. [name redacted] also claims that the assessment of her application to be a kinship carer was inappropriately assessed as irrelevant information was taken into account in that assessment.

The complainant’s case

The effect of section 53CA of the HRC Act is that the onus is first on the complainant in any discrimination matter to present a case. If the case, in the absence of any counterargument, is sufficient, then the onus falls on the respondent to rebut the complainant’s case.
The contention of the complainant in the present matter is not set out in any one place in an organised and coherent way. Nevertheless, it can be understood from her email exchange with the HRC and associated materials that her contention is that:
(a)the impugned decision of CYPS with regard to authorisation as a kinship carer falls within the provision of goods, services and facilities in section 20 of the Discrimination Act;
(b)the decision by CYPS took the complainant’s criminal record into account in a way that means that she has an irrelevant criminal record under the Discrimination Act;
(c)the decision not to authorise her as a kinship carer was unfavourable treatment under section 8 of the Discrimination Act;
(d)this unfavourable treatment was at least in part because of her irrelevant criminal record; and
(e)in taking her irrelevant criminal record into account in her kinship carer assessment, CYPS discriminated against her.

Consideration

The scope of the claimant’s discrimination action is limited by the complaint put to the HRC. Once that has been explored by the HRC with the complainant, and the possibility of conciliation has been investigated, and the matter has been referred to ACAT, the complainant cannot add to the matters constituting the alleged discriminatory actions or behaviour. In this instance, based on the emails quoted above, and the letter from the Discrimination Commissioner to the Directorate (which may reflect perspectives clarified in, for example, telephone conversations between HRC staff and the complainant), the complaint is about the decision by the Delegate to refuse kinship carer status; the complaint is made on the grounds of an irrelevant criminal record; and the relevant area of public life is in the provision of goods, services and facilities.
It may be that the last sentence of the quoted passage from Ms Toohey’s letter to the Director-General of the Community Services Directorate, mentioning that the complainant “also claims that the assessment of her application to be a kinship carer was inappropriately assessed as irrelevant information was taken into account in that assessment”, was intended to raise a second and separate complaint. The absence of specificity in that statement, however, makes it impossible to understand what is being alleged, and I have not attempted to pursue this part of the complainant’s matter further. In later documentation, such as her emails providing material to the Tribunal, the complainant again asserts that she has been discriminated against, often in very broad terms, but these assertions also lack specificity and, in any case, for the reasons explained above, cannot add to the complaint before me.

Is a decision about carer status the provision of a service?

As noted above, the Discrimination Act identifies areas of public life in which certain actions can constitute discrimination. One area of public life is set out in section 20, namely the provision of goods, services and facilities. If the complainant is to succeed, I must be persuaded that a decision about kinship carer status is, or involves, the delivery of a service. Section 20 says that it is unlawful for the provider of a service to discriminate in refusing to provide the service, or in the terms and conditions the service is provided, or in the way the service is provided. The present matter alleges discrimination in denying the complainant carer status, i.e., in refusal of a service.
The Discrimination Act defines ‘services’ non-exhaustively as follows:
“services” includes—
(a) services relating to banking, insurance or the provision of grants, loans, credit or finance; and
(b) services relating to entertainment, recreation or refreshment; and
(c) services relating to transport or travel; and
(d) services of any profession, trade or business; and
(e) services provided by a government, government authority, local government body or corporation in which a government has a controlling interest; and
(f) the provision of scholarships, prizes or awards.
Mr Oram’s submission on behalf of the respondent argues that a decision about whether a person can be a carer is not a service to that person. In making this argument, he draws on both the case law and the wording of the CYP Act.
The case law on whether a decision-making process by a government body under statute is the provision of a service is anything but simple. A leading Australian case is IW v City of Perth.[33] In that case, the High Court considered whether discrimination occurred when the Council of the City of Perth refused planning permission for a drop-in centre for People Living with Aids. Although the High Court found against those alleging discrimination, the majority concluded that the granting of planning permission was indeed providing a service to those applying, but there were several differing paths to that conclusion, which was not in any case universally held. Brennan CJ and McHugh J found that in making decisions on planning approvals the City of Perth was not providing a “service”. Their Honours noted that the City did provide services to its people, such as supplying utilities and collecting garbage, and making available to the public facilities such as libraries, parks and sportsgrounds, but that not all of its activities could be regarded as services. Dawson and Gaudron JJ took the view that the word “services” in the context of the legislation was “a word of complete generality” and “should not be given a narrow construction unless that is clearly required by definition or by context”.[34] Toohey, Gummow and Kirby JJ, in separate judgments, found (on bases that differed significantly) that the exercise of the council’s planning approval powers involved the provision of a service to those applying for such planning approvals.[35]
[33] [1997] HCA 30
[34] IW v City of Perth (1997) 191 CLR 1, page 23
[35] IW v City of Perth (1997) 191 CLR 1, page 28-29 (Toohey J); page 41-45 (Gummow J); page 69‑75 (Kirby J)
In his submission, Mr Oram draws on the above case law, submitting that in deciding whether a “service” is being supplied to a person or to a segment of the community, it is necessary to distinguish with precision the service that is purportedly being supplied and the person or group to whom it is supplied. In Bickle v State of Victoria,[36] the Federal Court (Snaden J) concluded that the provision of the policing of criminal behaviour was not a service, noting authority from earlier cases that certain aspects of policing, such as initial investigations into violence, might constitute services to the victims of violence, but that subsequent investigations and action arising from it is not a service to victims, but a duty to the community at large.[37] Similarly, in Robinson v Commissioner of Police, NSW Police Force the court held that in deciding a bail application the police were not providing a service to the applicant.[38] On the other hand, in AB v Registrar of Births, Deaths and Marriages, Black CJ concluded that the refusal of the Registrar to alter the applicant’s sex on the register was the refusal of a service.[39]
[36] [2020] FCA 168
[37]Bickle v State of Victoria [2020] FCA 168 at [15]-[22]
[38] [2012] FCA 770 at [180] (Yates J)
[39] [2007] FCAFC 140 at [28]
Mr Oram points to the emphasis given in the CYP Act to the purpose of that Act in the protection of children and young people, concluding that the assessment of an applicant to become a carer and the making of a decision on that application are not the supply of a service to that applicant. Mr Oram summarises the process undertaken by the Directorate in the following terms:[40]
Construed in context, the assessment of whether to approve a person as an approved carer involves:
(1) The exercise of a broad deliberative power;
(2) That involves the assessment of the existence of negative information about a person;
(3) To determine whether that person poses a risk of harm to a child or young person;
(4) For the benefit and protection of children and young people; and
(5) In the course of regulating and limiting who may have contact with vulnerable children and young people.
[40] Respondent’s submission at [51]
In my view, this is an accurate account of the process set out in the CYP Act and the argument is persuasively put. However, Mr Oram notes that there is also case law to the contrary: Director-General, Department of Community Services v MM[41] (MM) is an illustration of the point that in certain circumstances the director-general, when performing functions under the CYP Act, may indeed be delivering services to children and young people, but may be at the same time potentially delivering services to their family or carer.
[41] [2003] NSWSC 1241
In MM, Mr Oram, quite properly, has drawn to my attention a case that points away from rather than towards the conclusion for which he is arguing, noting however that the decision in MM was made in a different jurisdiction, under a different statute and in different circumstances. His contention is that in the present circumstances and with the present ACT statute, I should reach the conclusion he urges upon me rather than follow MM. But MM is on all fours with the present case. In that matter, the NSW equivalent of ACAT referred a question to the NSW Supreme Court asking whether the assessment of an applicant for foster carer status was the provision of a service to the applicant, provided under the Children (Care and Protection) Act 1987 (NSW), the NSW equivalent of the CYP Act, for the purposes of the Anti-Discrimination Act 1977 (NSW). The answer given by Barr J was that the assessment provided a service to the applicant.
The particular case involved partnered foster carers, one of whom suffered from a mental illness. For that reason, the NSW Department had denied them foster carer status. In his judgment, Barr J first notes the strong endorsement in the case law for a broad understanding of the term “services” and canvasses the view of the courts in the leading cases. His Honour then notes that even if it is clear that any service being delivered is first and foremost to the children and young people whose care and protection is necessarily the Department’s paramount consideration, it does not follow that the activity does not at the same time provide a service to a second group, namely those seeking to take on care and protection responsibilities. His conclusion is to the following effect:
People apply to become foster carers out of a strong desire to give and to receive. They want to receive the privilege of having a child they can treat more or less as their own. It seems to me that that privilege is a benefit and that to confer it or the chance of it is to provide a service within the meaning of ss47 and 49M(1) of the Anti-Discrimination Act.The privilege is also an advantage, as much to the foster carer as to the foster child, which the Department’s activity tends to give. I think that in offering the respondents the chance of becoming foster carers the Department provided a service to them.
Mr Oram, in effect, invites me to distinguish the present case from that in MM, pointing to the differences in the statutory scheme and in the circumstances of the two cases, but he does not go on to explain what those differences relevantly are, or why they should lead to a different conclusion. In fact, most of the differences in the circumstances of the two cases would become relevant later in this decision; whether the Directorate’s process is the provision of a service is an anterior issue that can be decided with little reference to the detailed circumstances of the complainant. And the statutory scheme in NSW is very closely similar, relevantly, to its equivalent in the ACT, both in the way the care and protection of children and young people are assessed and in the operation of discrimination legislation.
I am not formally obliged to follow the opinion of Barr J, as it comes from a jurisdiction other than the ACT; but as a member of a tribunal, I am bound to find it compelling, and to depart from it only if the circumstances of the case clearly warrant distinguishing this matter from that. In fact, however, the matters are strikingly similar in every relevant aspect, and, with respect, the persuasiveness of the reasoning gives me no reason to seek to distinguish the two matters. For those reasons, I find that the Directorate’s assessment of and decision on the complainant’s application to be a kinship carer was the provision of a service for the purposes of section 20 of the Discrimination Act.

Did the kinship carer decision take into account an “irrelevant criminal conviction”?

The definition of “irrelevant criminal record” in the Dictionary of the Discrimination Act describes in paragraphs (a), (b), (c), (d) and (f) characteristics of the criminal record of the person who claims to have been discriminated against, and in paragraph (e) describes how the person has been treated in the course of the action claimed to have been discriminatory, that is, by the impugned action.
In the present case, it is not a matter of dispute that the complainant has a criminal record, nor that that record was taken into account in the Delegate’s decision. The question is whether the criminal record itself or the way that the assessment and decision dealt with the criminal record met the definition of “irrelevant criminal record” under the legislation. Of the six ways in which a criminal record can be irrelevant, in paragraphs (a) to (f), the first four are not applicable in this case, but paragraphs (e) and (f) are both potentially applicable.
Taking paragraph (f) first, a criminal record is irrelevant under the Discrimination Act if “the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000, for the offence.”
Applying the definition of “spent conviction” in section 12 of the SC Act, it is clear that the complainant’s convictions are all spent (and that is common ground between the parties). The consequence of a conviction being spent, as spelt out in section 16 of the SC Act, is that the conviction cannot be taken into account in a range of circumstances; but that consequence is excluded under the circumstances set out in section 19 which applies specifically to decisions of the kind now impugned. Thus, the SC Act provides specifically for convictions, even when spent, to be taken into account in decisions about the care and supervision of children and young people; but it appears that such decisions might be discriminatory under the Discrimination Act if all the other parameters of the latter Act are met.
Legislation is in general interpreted so that, as far as possible, contradictions of this kind are avoided, and different statutes operate together harmoniously: it makes no sense, in the present instance, to think that the legislature passed a statute that requires or permits spent convictions to be taken into account in particular circumstances but chose not to exclude such actions from the ambit of the discrimination statute. The respondent’s contention on this point is that the specific arrangements in the SC Act should prevail over the general provisions of the Discrimination Act.[42]
[42] Respondent’s submission at [71]
There is a rule of statutory construction that a general provision, passed later than an earlier inconsistent specific provision, whether in a different or the same statute, does not impliedly repeal the earlier provision. This is sometimes referred to by the maxim generalia specialibus non derogant. The principle was stated as follows by Spigelman CJ in The Ombudsman v Laughton (Laughton):[43]
The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.
[43] [2005] NSWCA 339 at [19]

In Statutory Interpretation in Australia, Pearce and Geddes explore the application of the generalis maxim, noting that for it to apply, the general statute must be later than the specific statute; and it must be clear that the inconsistent provisions cannot stand together.[44] In the present circumstances, the specific regime is that established by the SC Act, and the more general regime is that in the Discrimination Act. The Discrimination Act is an earlier piece of legislation, but “irrelevant criminal record” was introduced as a protected attribute and its definition included in the Discrimination Act by sections 20 and 32 of the Discrimination Amendment Act 2016, and so those amendments date from well after the SC Act was passed.
[44] D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8^th ed, 2014), 7.19-7.22
It could not be said that the general and specific provisions are direct contradictions of one another, but it is difficult to see how they can stand together. I can see no sensible approach to the ambit and operation of the two statutes in which the inconsistency is resolved. In Laughton, Spigelman CJ noted that the generalis maxim is not always easy to apply, and Basten JA in that case commented as follows:
The maxim … that a general provision cannot derogate from a special or more specific provision is, as the Chief Justice recognises, sometimes difficult to apply. Where appropriate, it is preferable to apply the provisions of the Interpretation Act 1987 (NSW), being the statutorily prescribed approach to statutory interpretation. The well-established approach to the construction of protective provisions, such as s 35A of the Ombudsman Act 1974, accords with the requirement of s 33 of the Interpretation Act that a purposive approach be adopted in construing a provision of an Act, in preference to a construction that would not promote the purpose underlying the Act.
This is a case in which it is not a simple matter to apply the maxim. The Discrimination Amendment Act 2016 can be regarded as a general amendment as it deals with a number and variety of the provisions in the Discrimination Act, but the definition of “irrelevant criminal record” includes at paragraph (f) a specific reference to the SC Act. The latter is not a long and complex piece of legislation (there are only 45 sections), and a cursory look should have revealed the exclusions in section 19. This is not an example of a general provision, where in the words of Spigelman CJ “the very generality of the words … indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply”.
The alternative approach suggested by Basten JA offers some help in the present instance. Both the Discrimination Act and the SC Act are examples of legislation intended to help the vulnerable: in the Discrimination Act those who, because of one or more protected attributes, may receive treatment that is unfair; under the SC Act, those whose criminal history might otherwise pursue them through life. Section 19 of the SC Act identifies even more vulnerable groups, such as children and young people, to whom additional protection is provided. The purposive approach to statutory construction, reflected in the ACT by section 139 of the Legislation Act 2001, the equivalent of section 33 in the Interpretation Act 1987 (NSW), does not easily enable the inconsistency to be resolved, especially given that the Discrimination Act requires that a construction be adopted that is beneficial to people with protected attributes;[45] but giving effect to the clear intention in the SC Act that the protection of children and young people should be afforded additional protection seems to me the interpretation that would “best achieve the purpose of the Act”.[46]
[45] Discrimination Act 1991, section 4AA
[46] Legislation Act 2001, section 149(1)
Taking all of the above into account, it is my view that the only sensible construction of the inconsistent sections from the two Acts is that the intention is that where the exclusions in section 19 of the SC Act are properly applied, it is not intended that the resultant actions or decisions would be unlawful under the Discrimination Act. That leads me towards a conclusion that an assessment of a kinship carer application that took into account a spent conviction should not be regarded as taking into account an “irrelevant criminal record” provided that the SC Act provision in section 19 were properly applied, which means applied with tests for relevance and consideration of the weight any reference to a spent conviction ought to be given, in accordance with the detailed provision in section 65(1)(a) of the CYP Act.
That is also the implication of paragraph (e) of the definition of “irrelevant criminal record”: “the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which discrimination arises.”
The complainant’s criminal record is referred to in the statement of reasons (and in the assessment) without any consideration of the relevance of it to the decision under consideration. This is not some unimportant oversight: in particular, the convictions for offensive behaviour and escaping custody are from some thirty years earlier, given by the children’s court, when the complainant was 17 years old. Although more emphasis is given in the statement of reasons to the complainant’s child protection history, in the final summing up of the reasons the complainant’s criminal record and her child protection history are referred to with equal emphasis. At no stage is any attention given to the relevance of the criminal history. This is entirely at odds with the intent of paragraph (e) of the definition of “irrelevant criminal record”.
Was the complainant’s criminal record directly relevant to the decision about kinship carer status? If the question had been asked, I believe the Delegate would have concluded that it was not. The inclusion of “directly” means that the criminal record must be more than marginally or adjectivally relevant; it must bear straightforwardly and with some immediacy on the decision or action being contemplated. Section 65(1)(a) of the CYP Act spells out a test for relevance, a test that was never applied in the impugned decision. The contrast with the later revised decisions could not be more stark. The Anderson decision notes the existence of the criminal record but does not include it in the reasons for the decision. The Selby decision states that for the purposes of section 65(1)(a) of the CYP Act the complainant’s criminal history contains no relevant “conviction or finding of guilt”, and the Schoer decision contains the statement that “It is also not necessary to consider s 65(1)(a) as there are no convictions or findings of guilt against [the complainant] for the types of offences listed under subsection 65(1)(a)(i)-(viii)”.
Taking all the above into consideration, I have no hesitation in finding that the impugned action took into account an irrelevant criminal record under the Discrimination Act.
With regard to the tension between the SC and Discrimination Acts, it is not difficult to see how a simple amendment could resolve the issue. That might be worth the effort if there is a significant number of occasions on which spent convictions influence the outcome of carer assessments or other similar decisions covered by section 19 of the SC Act.

Was the decision unfavourable to the complainant?

The respondent makes the point, correctly, that the requirement that the impugned action treat the complainant unfavourably requires an objective conclusion to be drawn, and that it is not sufficient that the complainant perceives it as such.
The complainant sought kinship carer status for her grandchildren. She was denied it. By any sense of community standard, that denial was objectively unfavourable to her. I note that the respondent does not contest that point, so it is common ground that the complainant was treated unfavourably by the impugned decision.

Was the decision unfavourable to the complainant because of her irrelevant criminal record?

A great deal has been written about causation in the context of discrimination matters. Causation in such matters is often complex and hard to disentangle, and the evidence may be scant. The leading Australian case is Purvis v New South Wales,[47] in which the High Court made a detailed examination of the causation test, in that case under NSW law, although the law in the ACT is closely similar in relevant ways. The plurality referred to several ways of dealing with causation (relating to matters such as motive, purpose and effect), rejecting them and framing the test as follows: “Rather, the central question will always be - why was the aggrieved person treated as he or she was?”[48]
[47] [2003] HCA 62
[48] Purvis v New South Wales [2003] HCA 62 at [236]
This test, although simply worded, is nevertheless not always simple to apply. But in the present matter I have a statement of reasons by the Delegate, explaining her decision. On the basis of that statement, and for the two reasons explained below, I think that it is reasonable to conclude, in the absence of any other evidence, that the impugned decision treated the complainant unfavourably because of her irrelevant criminal record.
First, the statement of reasons by the Delegate gives weight to the complainant’s criminal record – a weight not significantly different from that given to her child protection history. The two sentences that appear under the heading “Statement of reasons” say first that she is willing to be a kinship carer and then note that because of her criminal record and child protection history, she is not suitable. That formulation does not easily lend itself to an interpretation that the criminal record carried little or no weight in the conclusion.
The following sentence occurs earlier in the statement of reasons: “In relation to s65 of the Children and Young People Act 2008 I have not assessed [the complainant] as a suitable entity as a kinship carer as there is a history of a conviction in relation to drive motor vehicle with alcohol in blood, 2 times offensive behaviour in a public place and escape, break out of custody”. That would seem a direct statement of causation.
Second, section 4AA of the Discrimination Act requires me to interpret the Act beneficially to the person with the protected attribute, so far as to do so is consistent with the objects of the Act and the Human Rights Act 2004, and subsection 4A(2) states that doing a matter under the Act includes “doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act”. The result of applying these interpretive provisions is that I am encouraged to regard the irrelevant criminal record as a cause of the unfavourable treatment in the complainant’s case, even if it is not the dominant cause or even a substantial cause.

On the evidence presented, is it a rebuttable presumption that discrimination has occurred?

Section 53CA of the HRC Act sets up a process in which (for direct discrimination) a complainant is first asked to establish a rebuttable presumption that discrimination has occurred by satisfying the tribunal that they have received unfavourable treatment and by advancing sufficient evidence to satisfy the tribunal that the unfavourable treatment was caused by their protective attribute, in the absence of any other explanation. The onus then shifts to the respondent to advance evidence that might persuade the tribunal that the unfavourable treatment had some other cause.
In the present matter, I have found that the treatment was unfavourable, and on the face of the available evidence, the irrelevant criminal record was a cause. In my view, the evidence establishes a rebuttable presumption that discrimination has occurred.

Has the respondent rebutted the presumption that discrimination has occurred?

Mr Oram has made a detailed submission that takes issue with the complainant’s contention, set out above, on a number of fronts. It may be summarised as follows:
(a)the taking of decisions regarding kinship carer status does not involve the provision of a service to prospective carers and does not fall within section 20 of the Discrimination Act;
(b)the relevant provisions of the SC Act and the CYP Act, taken together, in the context of decisions about the care of children and young people, do not prevent a decision-maker from taking into account criminal history information that in other circumstances would be excluded by the SC Act;
(c)the weight given to the complainant’s criminal history in the impugned action was minimal, to the point that it does not have the required causal link to the unfavourable treatment that she suffered in being denied kinship carer status and therefore is not discrimination; and
(d)the decision by the respondent is covered by the exclusion in section 30 of the Discrimination Act; that is, it escapes being unlawful because it was taken necessarily for the purposes of the CYP Act.
I have already considered point (a) above concluding that the CYPS decision was indeed the provision of a service. On point (b), I am in agreement with the respondent’s argument, so far as it goes,[49] but the respondent’s submission does not deal at all with paragraph (e) of the definition of “irrelevant criminal record”, nor does it consider how a spent conviction taken into account under section 19 of the SC Act should be tested for relevance to minimise any possibility of discrimination. On those points, I have already reached the conclusion that the complainant had an irrelevant criminal record for the purposes of the Discrimination Act.
[49] Respondent’s submission at [54]-[71]
With regard to the question of causation – whether or not the unfavourable treatment was caused by the complainant’s criminal record – the respondent relies heavily on the statements by the Delegate in her witness statement to the effect that it was the complainant’s child protection history that led to the refusal of kinship carer responsibility, and not the criminal record. That is supported by the statement of Ms Anderson and by the general disposition of subsequent decisions in the matter, which were all to the same effect – denying the complainant kinship carer status – and all of which, after that by the Delegate, arrived at that outcome without relying on the complainant’s criminal record.
It is generally the case that where a document has a legal purpose, it is the wording of the document itself that is the best guide to its meaning. That doctrine is given legal force in relation to contracts (the parole evidence rule), legislation (constraints on use of extrinsic materials) and wills, among others. However, the same logic that underpins those rules also applies here. Section 22B of the ACAT Act provides that where a decision-maker makes a reviewable decision and a person affected requests it, the decision-maker must provide a statement of reasons, unless such a statement has already been provided with the decision. It is common practice for reviewable decisions to be accompanied by statements of reasons. These statements set out the basis on which the decision was taken, give information to the person affected, and help enable them to decide whether to seek review.
In the present instance, the Delegate gave a statement of reasons, and that document can be expected to provide an accurate account to the complainant of how a decision adverse to her interests came to be made. It is surely reasonable to rely on that contemporaneous statement to discover the truth about how the decision came to be taken, rather than to turn to the Delegate’s witness statement, a statement made well after the event and at risk of being self-serving or justificatory. For that reason, I prefer to rely on the statement of reasons given at the time.
That statement points unmistakably, in my view, to the complainant’s criminal record having played a part in the Delegate’s decision. It would be possible to treat the somewhat pro forma references to the criminal record in the statement of reasons as an indication of the paucity of attention given to that factor compared with the rather fuller and more immediate account of the child protection history, and so conclude that the criminal record of the complainant was, ultimately, of no causal significance to the decision. But to do so, in my view, would be to engage in an ex post facto rationalisation and justification rather than a fair reading of the document.

Is the impugned action covered by an exception or exemption?

Section 30 of the Discrimination Act provides a general exception for actions “done necessarily” under a Territory law. The relevant provision reads as follows:
(1) This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of—
(a)a Territory law; or
(b)a determination or direction made under a Territory law; or
(c)an order of a court; or
(d)an order of the ACAT.
The respondent contends that the impugned decision falls under paragraph (a) of this exception.
The wording of the provision clearly points to an intention to constrain its application to a particular class of actions: only to actions that are “done necessarily” for the purpose of compliance with requirements of legislation and the listed orders. The use of “necessarily” suggests that the aim is to recognise that in certain circumstances a person taking an action, including making a decision, has their degrees of freedom constrained by the legislation or other legal context in which they are operating, and that where that is so, it is reasonable that they escape the discipline of the Discrimination Act. The drafting appears to intend a narrow sphere of operation, calling up the concepts of necessity, of compliance and of requirement – all words suggesting significant constraints on the freedom of the person taking the relevant action.
The respondent argues for a broader construction of “necessarily”, referring to case law in which the word is construed to mean “appropriate and adapted” or even simply “reasonable”. One of the leading cases cited is Mulholland v Australian Electoral Commission[50] where Gleeson CJ said the following:[51]
It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy. In Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation, a case concerning s 51 of the Income Tax Assessment Act 1936 (Cth), Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the word "necessarily", in the context of the allowability of deductions for expenditure necessarily incurred in carrying on a business, meant "clearly appropriate or adapted for", not "unavoidably". Under the Income Tax Assessment Act, it was not for the Commissioner to tell a taxpayer how to run its business. The primary judgment was left to the taxpayer, and the concept of "necessarily incurred" was intended to impose a limit, enforced by the courts, but allowing due regard for the consideration that it was for the taxpayer to make the business judgment in deciding what to spend. The Commissioner could not disallow a deduction on the ground that the expenditure was not unavoidable. (citations omitted)
[50] [2004] HCA 41
[51] Mulholland v Australian Electoral Commission [2004] HCA 41 at [41]
A second case cited by the respondent is Pelechowski v Registrar, Court of Appeal,[52] in which the plurality held that in the context there obtaining, the term should be understood to mean “reasonably required or legally ancillary” and the concept was to be "subjected to the touchstone of reasonableness".[53]
[52] [1999] HCA 19
[53] Pelechowski v Registrar, Court of Appeal [1999] HCA 19 at [51])

If accepted, the position put by the respondent would carry with it the potential consequence that a great many actions and decisions by government entities would escape the operation of the Discrimination Act, provided they were dome “reasonably”. It must be doubted whether that could be the intention of the legislature, and whether that construction is consistent with the thrust of section 4AA of the Discrimination Act which requires a construction beneficial to people with protected attributes. A broad construction similar to that advocated by the respondent was considered by the High Court in Waters v Public Transport Corporation,[54] in which the court agreed that, in the context of the equivalent Victorian provision, a narrower construction was to be preferred. Dawson and Toohey JJ made the point, citing Hampson v Department of Education and Science,[55] a case in the House of Lords, that the exercise of a discretion “was not done in pursuance of the instrument” and therefore did not escape the discrimination legislation.[56] In a separate judgment, McHugh J cited a decision by the NSW Equal Opportunity Tribunal, Clinch v Commissioner of Police[57] saying that that case was “correctly decided”, and concluding that in the exercise of a discretion a decision-maker was not acting by necessity:[58]
The Equal Opportunity Tribunal of New South Wales held that, in order to fall within the exception in s.54, the Commissioner had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct. The Tribunal held that the requirement of the "other Act" must be mandatory and specific.
[54] [1991] HCA 49
[55] (1991) 1 AC 171
[56] Waters v Public Transport Corporation [1991] HCA 49 at [13]
[57] (1984) EOC 92-115
[58] Waters v Public Transport Corporation [1991] HCA 49 at [38]
I note too that a narrower construction of the exception has been adopted by this Tribunal.[59]
[59] Butcher v The Key King Pty Ltd [2000] ACTDT 2 at [32]
In the present circumstances, the Delegate was exercising a broad, deliberative discretion. There was no requirement that the discretion be exercised in one direction or the other; nor was the decision taken in pursuance of an instrument requiring or directing a particular outcome. The impugned decision was not “done necessarily for the purpose of complying with a requirement” of the CYP Act. To grant the exception sought would exclude a range of government actions from the Discrimination Act, would be inconsistent with the scheme of the Act, and especially with section 4AA, and would be inconsistent with the guidance of the High Court.
In any case, the particular action in question here was not “reasonable”, in that it did not apply the test for relevance set by section 65(1)(a) of the CYP Act.
The impugned action does not attract the exception in section 30 of the Discrimination Act.

Did the Directorate discriminate unlawfully against the complainant?

I have found that the impugned action fell within the definition of the provision of services in section 20 of the Discrimination Act; that the complainant had an irrelevant criminal record; that the complainant was treated unfavourably by the impugned action; and that one cause of her unfavourable treatment was her irrelevant criminal record. It follows that the impugned action constituted unlawful discrimination against the complainant. The respondent has not successfully rebutted that conclusion and the matter does not fall within the exception in section 30 of the Discrimination Act.

What remedies are appropriate?

Section 53E of the HRC Act provides for three kinds of remedy where unlawful discrimination is found to have occurred. The section is the only source of remedial power, and the Tribunal is obliged to take at least one of the kinds of actions identified. The section reads as follows:
(1)     This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2)     The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3)     In making an order under subsection (2) (c), the ACAT must consider—
(a)the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)the nature of the discrimination; and
(e)any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples—par (e)
a public apology, systemic changes to protect against further discrimination
(4)     The commission may, with the ACAT’s consent, intervene in a complaint to make submissions about an order under subsection (2) (c).
(5)     In this section:
representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71.
The three kinds of remedy set out in subsection 53E(2) may be summarised as reform, redress and compensation. The complainant has not given any clear indication of the remedies she is seeking, although it appears to me that a finding that discrimination has occurred would be among her primary aims. In the absence of any specification of preferred remedies, I propose to canvass the range of remedies in the section.
With regard to the possibility of an order under section 53E(2)(a) to the Directorate or to CYPS “not to repeat or continue” the discriminatory behaviour, I note that in Australian Capital Territory v Wang,[60] the Tribunal noted the narrow scope of the power granted under this provision.
[60] [2019] ACAT 65
The impugned decision does not follow the guidelines that CYPS has adopted for decisions of this kind.[61] Those guidelines are comprehensive and closely aligned with the legislative framework under which they are made, including with section 65 of the CYP Act (setting out suitability information, including an applicant’s criminal history). They limit any reference to a person’s criminal record to the characteristics identified in section 65(1)(a) of the CYP Act as relevant to a decision about kinship carer status. Clearly those guidelines were not applied in the impugned decision as the question regarding potential relevance appears not to have been even asked.
[61] T-documents, pages 46-81
I have therefore made orders that the Directorate ensure that decision-makers taking kinship carer decisions under the CYP Act take applicants’ criminal records into account in accordance with the provisions of section 65 of the CYP Act. My jurisdiction is limited to the kinds of decision taken in the present matter; but it is of course open to the Directorate to look more widely at the decision-making practices of delegates making other similar decisions.
I do not propose to make any orders under paragraph (b) of section 53E(2). The impugned decision was discriminatory, but it does not follow that it arrived at the wrong outcome. The same decision would have been arrived at without relying on the complainant’s criminal record. This is not an application for administrative review, and it is not my role to remake the impugned decision; but that decision was remade three times, each time with the same outcome, and without substantial reference to the complainant’s criminal record. No evidence has been advanced, and no substantive argument put, that those subsequent decisions were wrong, discriminatory or mistaken as to fact or law. The complainant herself clearly disagrees with them but has offered no detailed explanation of where they depart from fact or reason. There is an abundance of evidence provided in the T‑documents which would explain how and why a decision to deny kinship carer status to the complainant could be arrived at.[62] At the complainant’s application the decision was remade; the defects in the impugned decision do not appear in the remade decisions. If there is no basis for concluding that the decision arrived at the wrong outcome, there is no basis for an order in the nature of redress.
[62] T-documents, pages 82-92
When considering compensation under section 53E(2), subsection 53E(3) lists matters that the ACAT must consider, as follows:
(a)     the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)     the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c)     the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)     the nature of the discrimination; and
(e)     any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples—par (e)
a public apology, systemic changes to protect against further discrimination
I have noted that the complainant was, it appears, destined not to get approved as a kinship carer under the CYP Act. In that sense, she has not suffered direct loss or damage from the discriminatory decision; but she has suffered because it has been necessary to bring this matter before the Tribunal in order to have the defect in the impugned decision recognised. The implication of the Anderson decision and even more clearly, of the Selby and Schoer decisions, is that CYPS must have been aware that the impugned decision wrongly gave regard to the complainant’s criminal history. An acknowledgement of the error and an apology, as suggested in the examples given with the subsection quoted above, would have been a reasonable step to have taken regardless of the complainant’s fractured history with CYPS. And the complainant’s frequent accusations of mistreatment suggest that she at least feels that her equality before the law, as well as her dignity, have not been given proper regard.
In the circumstances, I think that an award of nominal damages is an appropriate recognition of the difficulties that the complainant has been put through. The Directorate is to pay the complainant the sum of $5,000 in compensation.

………………………………..
Senior Member M Hyman

Date of hearing:	On the papers
Applicant:	Self-represented
Solicitors for the Respondent:	Ms I Collins, ACT Government Solicitor
Counsel for the Respondent	Mr N Oram

Date	Document(s)	Number of pages
None	Various pieces of legislation and international conventions
12 July 2021	Email covering remade decisions by Ms Emma Selby (dated 1 February 2021) and Ms Jenna Schoer (dated 9 July 2021)
23 July 2021	General complaint about dealings with CYPS and the ACT Government	1
23 July 2021	General complaint about dealings with CYPS and the ACT Government	1
16 August 2021	Medical evidence	7
18 August 2021	Medical evidence	3
19 August 2021	Medical evidence	4
25 August 2021	Statement alleging police abuse with criminal history	6
28 August 2021	Draft witness statement including personal history and accusations against police and others	13
No date, received 16 November 2021	Extract from website dealing with the rule of law (apparently from the Rule of Law Education Centre)	6
15 December 2021	Email detailing court orders and dealings with CYPS	1
28 January 2022	Drawings and paintings by daughter; one photograph	6
28 January 2022	Email attaching home schooling provisionary certificate for one of complainant’s children; list of school activities for one child; recommendation by a doctor in 2004 for suitability of complainant for custody of children; record of dialogue dating from 2004 between one child and doctor regarding child’s preference for parent	11
31 January 2022	Draft statement identifying documents being pursued and possible witnesses	12
2 February 2022	Email alleging false reports and attaching two police reports	3
8 February 2022	Email; alleging mistaken and misspelled names	2
9 February 2022	Draft statement describing family behaviour and past events	4
15 February 2022	Email regarding complainant’s interest in rockabilly dance, with posters, photographs and drawings	5
29 April 2022	Email alleging torture by police and forced adoption, attaching article from Canberra Times; drawings by grandchild allegedly indicating child’s pain and suffering; apology to Stolen Generations by then Chief Minister	4
No date, but apparently mid July 2022	Email asking for various legislative provisions to be taken into account	1