| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC [2013] WASAT 3 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 8 OCTOBER 2012 DELIVERED : 8 JANUARY 2013 FILE NO/S : EOA 34 of 2012 BETWEEN : MONIKA DOEPGEN Applicant
AND
MUGARINYA COMMUNITY ASSOCIATION INC
Respondent
Catchwords: Discrimination - Preliminary issue - Race - Access to land - Condition imposed on right of access - Whether exception to unlawful discrimination - Whether complaint misconceived Legislation: Aboriginal Affairs Planning Authority Act 1972 (WA), s 20, s 21A, s 23, s 31, Pt III
Aboriginal Communities Act 1979 (WA), s 7(1)(a), s 7(1)(b)
Equal Opportunity Act 1984 (WA), s 36, s 45, s 45(b), s 51, s 51(a), s 51(b), s 69, s 69(1), s 69(2), s 89, s 90(2), Pt III
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Racial Discrimination Act 1975 (Cth), s 10
State Administrative Tribunal Act 2004 (WA), s 47 Result: Preliminary issue deferred to final hearing
Summary of Tribunal's decision: The applicant alleged that she had been discriminated against on the ground of race by reason that the respondent had imposed a condition on her accessing reserved land under the respondent's control which it would not have imposed on a person of Aboriginal descent. Her complaint to the Commissioner of Equal Opportunity was dismissed as misconceived. When the applicant required the Commissioner to refer the matter to the Tribunal, the respondent sought to have the question of whether the complaint was misconceived determined as a preliminary issue. It argued that its conduct was lawful by reason of s 51 of the Equal Opportunity Act 1984 (WA).
The Tribunal concluded that it was not immediately apparent that s 51 applied to the present proceedings, and that the matter should not be dismissed, at least until a full consideration of issues not fully developed in argument at the hearing of the preliminary issue.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr J Hammond
Solicitors:
Applicant : N/A
Respondent : Hammond Legal
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Case(s) referred to in decision(s):
Laurent v Commissioner of Police (2009) 68 SR (WA) 165
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant, Ms Monika Doepgen, made a complaint to the Commissioner for Equal Opportunity (Commissioner) against the respondent, Mugarinya Community Association Inc (MCA), alleging discrimination on the ground of race in the area of access to places. The Commissioner dismissed the complaint as being misconceived pursuant to s 89 of the Equal Opportunity Act 1984 (WA) (EO Act), whereupon Ms Doepgen required her, pursuant to s 90(2) of the EO Act, to refer the complaint to the Tribunal. 2 At the request of the respondent, the Tribunal ordered that the question of whether or not the applicant's complaint is misconceived, in that it relates to an act that is not unlawful under the EO Act, should be determined as a preliminary issue. 3 Ms Doepgen's complaint is that the MCA imposes a condition on nonaboriginal people requiring them to pay a sum of money in order to have access to land reserved for the 'use and benefit of Aboriginal inhabitants' which it does not impose upon Aboriginal people. In Ms Doepgen's case, the MCA required her to pay the sum of $25,000 in order to access the reserved land for the purpose of prospecting. She contends that, in that way, she has been treated less favourably than a person of Aboriginal descent, and has thereby been subject to racial discrimination as defined in s 36 of the EO Act. Her contention is that that discrimination is unlawful by reason of s 45(b) which makes it unlawful to discriminate on the ground of race in the terms on which the MCA is prepared to allow her access to the reserved land. 4 The Commissioner concluded that the complaint was 'misconceived' on the basis that the action by the MCA was not unlawful by reason of s 51 of the EO Act. That section provides: (Page 5)
relation to employment, education, training or welfare, or any ancillary benefits. 5 Section 36 and s 45 fall within Pt III of the EO Act. 6 The preliminary question as to whether or not these proceedings should be struck out as misconceived invites the application of s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal's power under that section was discussed in Laurent v Commissioner of Police (2009) 68 SR (WA) 165 where Deputy President Judge Pritchard said at [20] - [23]: 20 When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney(EOD)[2003] NSWADTAP 65 at [11]. 21 In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrus at [8], Deputy President Judge Chaney observed that: … the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that (Page 6)
it discloses a case which the court is satisfied cannot succeed. 22 See also Turner at [43] [48]. A similar approach has been adopted in relation to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act): see, for example, Forrester v AIMS Corporation [2004] VSC 506 at [17] [28] (Kaye J), applying State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel). 23 In so far as the respondents submit that the proceeding is 'misconceived' or 'without substance', I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Rabel at 108 109 (Ormiston JA) 7 In my view, it cannot be said that s 51 of the EO Act unarguably renders lawful the MCA's act of imposing a condition on entry to the land. It is uncontentious that that condition was imposed because the applicant is not an Aboriginal person. Section 51(a) of the EO Act makes lawful an act which ensures 'that persons of a particular race have equal opportunities with other persons'. In other words, to justify the condition under that provision, the requirement to pay for access would need to be directed to ensuring that Aboriginal people have equal access to the land as other persons. As I understand the facts of the present case, Aboriginal people have an unfettered right of access to the land, so that the requirement for others to pay a fee for access does not create equality of opportunity for Aboriginal people. 8 Section 51(b) makes it lawful to do an act for the purposes of affording 'persons of a particular race access to facilities … or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits'. Beyond the broad proposition that granting control of traditional land to aboriginal people is of importance to their special needs associated with their identification with the land, it is not immediately apparent that the imposition of the condition in question is done for the purpose of affording aboriginal persons access to the land in question. 9 For those reasons, I am of the view that it cannot be said, on the basis of the limited facts agreed for the purpose of the preliminary issue, that s 51 of the EO Act applies to the imposition of the condition complained of. (Page 7)
10 The submissions by the respondent set out the legislative background against which the respondent had acted. Reference was made to the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPA Act) which provides for the establishment of the Aboriginal Lands Trust (ALT) which has the responsibility for the control and management of various Crown reserves (AAPA Act, s 20 and s 23). Under section 21A of the AAPA Act, the land to which Ms Doepgen seeks access is Reserve 31427 which is reserved for the 'use and benefit of Aboriginal inhabitants'. Under Pt III of the AAPA Act, Reserve 31427 is vested in the Aboriginal Affairs Planning Authority under the control and management of the ALT. MCA is lease holder in possession of Reserve 31427 pursuant to a 99 year lease from the ALT. 11 Section 31 of the AAPA Act makes it an offence for a person to enter land to which Pt III of the AAPA Act applies unless it is a person of Aboriginal descent or, relevantly, a person authorised in that behalf under the regulations. 12 MCA is an Aboriginal Community under Aboriginal Communities Act 1979 (WA) (AC Act). Section 7(1)(a) and s 7(1)(b) of the AC Act provide: 13 MCA has bylaws known as the Mugarinya Community Association Incorporated Bylaws (MCAI bylaws). Bylaw 4 provides: 4. Permission required to enter community land Save as otherwise provided by any law of the State or Commonwealth - (Page 8)
(a) no person who is not recognised by the Council to be Aboriginal, may enter or remain on community land without prior permission of the Council; (b) such permission may be given either orally or in writing and may be subject to such terms or conditions as the Council sees fit; (c) the Council may revoke such permission at any time and without the necessity of stating any reason for the action; (d) the Council may order any person whatsoever (other than a member of the community) to leave community land and to remain off community land for such a time as the Council may direct; (e) employees of government departments of the State or Commonwealth entering or being on community lands in connection with their duties shall be deemed to have permission under paragraph (a); (f) the Council may act through any of its members to make or to revoke any of the permission or directions referred to in this by-law. 14 It is under that bylaw that the condition the subject of Ms Doepgen's complaint was imposed. It can be noted that bylaw 4 applies '[s]ave as otherwise provided by any law of the State or Commonwealth'. 15 The respondent argues that the measures taken under the AAPA Act, the AC Act and the MCAI bylaws amount to 'positive discrimination and special measures which are exempt from the provisions of the EO Act'. However, only s 51 of EO Act appears to be relied upon as the 'special measure' provision within the EO Act governing the present matter. 16 Acts done under statutory authority are dealt with in s 69 of the EO Act. Section 69(1) renders lawful anything done by a person if it was necessary for the person to do it in order to comply with the requirement of any other Act in force when s 69 came into force. However, s 69(2) provides that: Subsection (1)(a), (b) and (e) shall, except to the extent that regulations made for the purposes of this subsection provide otherwise, cease to be in force at the expiration of 2 years after the coming into operation of this section. 17 The consequences, therefore, of the fact that the Act complained of has statutory authority does not appear to be covered by the EO Act. The (Page 9)
position is further complicated by s 10 of the Racial Discrimination Act 1975 (Cth) which confers rights to equality before the law notwithstanding a provision of a law of a State to the contrary. It can be observed that that provision does not apply to special measures to which paragraph 4 of article 1 of the International Convention on the Elimination of all forms of Racial Discrimination. 18 Because the preliminary issue was focused upon the application of s 51 of the EO Act, the other questions which I have mentioned above were not fully argued at the hearing of the preliminary issue. It is not, therefore, appropriate that those matters be addressed at this stage of the proceedings. It may well be that there should be joinder of the Minister for Indigenous Affairs, or possibly the ALT, given that the questions which arise in this matter may be of wider general significance than the particular facts of this case. That is a matter which will need to be dealt with at directions. 19 In the circumstances, the appropriate outcome from the argument on the preliminary issue is that the application for dismissal pursuant to s 47 of the SAT Act should not be finally dealt with at this time, but should be stood over to the final hearing of the matter.
Orders |