Corrigan v City of Sydney Counil

[2006] NSWADT 138

CITATION:	Corrigan v City of Sydney Counil and anor [2006] NSWADT 138
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Frank Corrigan FIRST RESPONDENT City of Sydney Council SECOND RESPONDENT Glebe Adminsitration Board
FILE NUMBER:	051118
HEARING DATES:	16/03/2006
SUBMISSIONS CLOSED:	03/16/2006
EXTEMPORE DECISION DATE:	03/16/2006
DATE OF DECISION:	05/10/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT E Bloomfield, agent SECOND RESPONDENT I Neill, barrister
ORDERS:	Application for leave refused

1 Mr Corrigan has applied for leave to the Tribunal for his complaint of discrimination to proceed under section 96(1) of the Anti-Discrimination Act 1977.

2 The history of this complaint is that Mr Corrigan complained to the Anti-Discrimination Board on 6 August 2004. He alleged that the Glebe Administration Board and the City of Sydney Council had discriminated against him on the ground of race, that is his Irish nationality, because permission was refused for him to stage a re-enactment of the Easter week uprising of 1916 at the Sydney Square.

3 The Tribunal refuses the application for leave. The principles on which that refusal are based were set out in a previous case, Xu v Sydney West Area Health Service [2006] NSWADT 3 at [17]-[18]. I will not read those paragraphs onto the record but I will quote two sentences, the first one from paragraph 17 is that, "The Tribunal has a gatekeeper role and that role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims." The second quote is that, in relation to direct discrimination, "To have a reasonable prospect of success a complaint of direct discrimination must include some direct evidence or evidence from which an inference can be drawn linking the alleged treatment with the ground of discrimination."

4 This complaint was brought pursuant to section 19 of the Anti-Discrimination Act 1977 which says: "It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race, (a) by refusing to provide the person with those goods or services." Services are defined in the Anti-Discrimination Act 1977 to consist of "access to and the use of any facilities in any place or vehicle that the public or a section of the public is entitled or allowed to enter or use for payment or not".

5 It is probable that a Tribunal hearing this matter would find that the refusal of the Glebe Administration Board and the City of Sydney Council of Mr Corrigan's application would fall within the definition of a refusal of service under section 19(a) of the Anti-Discrimination Act 1977. Mr Corrigan says that the discrimination has been on the ground of his race. Under section 4 of the Anti-Discrimination Act 1977 race includes colour, nationality, descent and ethnic, ethno-religious or national origin. Again, it is probable that a Tribunal would find that Mr Corrigan is of Irish national origin and that that is within the definition of race in the Anti-Discrimination Act 1977.

6 Of course, the definition of discrimination itself is also critical. Section 7 of the Anti-Discrimination Act 1977 sets out the definition of direct and indirect discrimination. In this case my understanding is that the allegation is one of direct discrimination which requires proof that the respondents have treated Mr Corrigan less favourably than in the same circumstances or in circumstances which are not materially different they treat or would treat a person of a different race. The second component of direct discrimination is that that treatment must be on the ground of the aggrieved person's race. The phrase 'on the ground of' is defined in section 4 to mean that at least one of the grounds must be a discriminatory ground so that the reason does not have to be solely a discriminatory ground. It is enough if one of the reasons consists of unlawful discrimination.

7 There is nothing about Mr Corrigan's complaint, apart from the question of causation, which would mean that his complaint potentially lacks substance. By the question of causation I mean the requirement in section 7 that the treatment be "on the ground of race".

8 The application that Mr Corrigan made to the Glebe Administration Board and the City of Sydney Council was to stage the Easter week 1916 uprising in Dublin GPO in Ireland and he sets out in a letter of 15 July 2004 the elements of the staging of that event. That application was made by Mr Corrigan in his capacity as President of an organisation called Sons and Daughters of Erin New South Wales. The re-enactment was to take place on Sunday, 29 August 2004.

9 By virtue of an agreement between the Glebe Administration Board and the City of Sydney Council, each is required to consent to an application to use the Sydney Square. If one party does not consent then the application is refused. In this case the Glebe Administration Board refused the application and consequently the City of Sydney Council also refused the application. The Glebe Administration Board and the City of Sydney Council explain in a letter to the President of the Anti-Discrimination Board that applications had previously been approved from a wide variety of organisations as long as the activities did not interfere with any planned services in St Andrew’s Cathedral. However, there was an incident on 26 March 2003 when the Stop the War Coalition held a protest rally and St Andrew’s Cathedral was damaged in the course of that protest. Following that incident the Glebe Administration Board decided to adopt a more stringent approach when considering applications for the use of the Square. In short, they determined not to approve applications for purposes that were not quiet and passive, or where there was potential for any damage to the Cathedral.

10 Since the policy has been introduced applications have been refused from the Stop the War Coalition and from the Hiroshima Day Committee. According to the Glebe Administration Board, Mr Corrigan's application was refused because of concern that there would be a risk of damage to the Square or the Cathedral surrounds. There was also a concern about the possibility of noise since the event was to be held on a Sunday.

11 I note that Mr Corrigan has expressed his concern about the alleged non-response of the City of Sydney Council to applications he has made to stage the Easter uprising in other locations. I have not heard from Ms Bloomfield, representing the City of Sydney Council, in relation to those allegations and I make no findings about them. But I do acknowledge Mr Corrigan's concern that he has not received responses to other applications that he has made. I also note that following Mr Corrigan's original application, the Glebe Administration Board did not provide any reasons for the refusal of his application and, indeed, when Mr Corrigan was advised of the fact that his application had been refused by the City of Sydney Council it was noted that the Glebe Administration Board had not provided any reasons. I just say as an aside that the City of Sydney Council and the Glebe Administration Board may consider in the future whether it might be of some value to provide reasons to unsuccessful applicants in the hope that matters of this kind do not escalate.

12 However, it is my task today to determine whether or not leave should be granted for Mr Corrigan's application to proceed. The President of the Anti-Discrimination Board gave reasons for declining the complaint in his letter to Mr Corrigan dated 30 July 2005. The nub of the President's decision was that, "Given the complainant's description of the proposed event the Glebe Administration Board have legitimate concerns regarding the potential for risk of damage. It appears to be this factor and not Mr Corrigan's racial background that informed the decision to reject the application." That was the basis for the President's decision.

13 Mr Corrigan said in a letter to the Anti-Discrimination Board dated 5 August 2004, and this is referring to the reason that his application was rejected, "I think one reason is because we are Irish and a great majority of our race rejected their church as a fake British religion and they also rejected the British Government and everything British. This is not our reason for not wanting to use their area. It is because the space that was needed was close to the Town Hall building. Our reason for contacting you is we feel this is an anti Irish action that this Christian church started because of the rejection of the majority of Irish people of their church and everything British."

14 Mr Corrigan also wrote to the Glebe Administration Board a few days earlier, on 1 August 2004, saying that, "We have never held protest meetings or demonstrations against the State or Federal Governments or councils, yet you allow people that were demonstrating against the Federal Government because they would not allow the people that tried to enter Australia illegally to settle in Australia." In relation to that allegation, of course, that does not support Mr Corrigan's contention that his Irish nationality was one of the reasons for the decision to refuse his application.

15 It is not the Tribunal's role to determine whether the decision was a reasonable one or whether it was a rational decision in all the circumstances. The Tribunal's role is to determine whether or not there is a reasonable prospect of success in Mr Corrigan's proving that race was one of the reasons for the refusal of his application. As I have said in previous cases, to have a reasonable prospect of success, a complaint of direct discrimination must include some direct evidence or evidence from which an inference can be drawn linking the alleged treatment with the ground of discrimination. There is no such evidence in this case. In fact, Mr Corrigan himself agrees that the City of Sydney Council has given favourable treatment to other groups of Irish people, including those organising the St Patrick's Day Parade. Similarly there is evidence of the respondents refusing applications from people of Japanese national origin.

16 So there is nothing that Mr Corrigan has been able to say or from what the President has written in the referral report which would provide either any direct evidence of discrimination or any facts from which an inference could be drawn that Mr Corrigan has been discriminated against on the ground of his race. The Tribunal's role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. In this case, in my view, that balance is struck by refusing the application for leave.