DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC - [2013] WASAT 3

DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC [2013] WASAT 3

Last Update: 11/01/2013

DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC [2013] WASAT 3
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 3
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:34/2012	Heard:	8 OCTOBER 2012
Coram:	JUSTICE J A CHANEY (PRESIDENT)	Delivered:	08/01/2013
No of Pages:	9	Judgment Part:	1 of 1
Result:	Preliminary issue deferred to final hearing
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MONIKA DOEPGEN MUGARINYA COMMUNITY ASSOCIATION INC
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 Racial Discrimination Act 1975 (Cth), s 10 State Administrative Tribunal Act 2004 (WA), s 47
Case References:	Laurent v Commissioner of Police (2009) 68 SR (WA) 165
Summary:	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.

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

(Page 2)

Racial Discrimination Act 1975 (Cth), s 10
State Administrative Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASAT 3
Decision Date: 8 JANUARY 2013

CaseChat Overview and Summary

The case of Doepgen and Mugarinya Community Association Inc involved a dispute regarding access to land, specifically whether a condition imposed on that right of access constituted unlawful discrimination on the basis of race. The matter was brought before the court to determine the validity of the discrimination complaint lodged by the Mugarinya Community Association Inc. The court was tasked with examining whether the condition imposed on the right of access was an exception to the unlawful discrimination laws and whether the complaint itself was misconceived.

The central legal issues the court needed to address were whether the condition imposed on the right of access to the land constituted unlawful discrimination under the relevant legislation and whether the complaint was appropriately conceived. The court needed to consider the specific terms of the condition and whether they were justified as a reasonable measure under the discrimination laws. Additionally, the court had to determine whether the Mugarinya Community Association Inc had correctly identified the discriminatory nature of the condition in their complaint.

The court, after reviewing the arguments and evidence presented, found that the preliminary issues raised were complex and required a thorough examination of the condition's terms and the applicable legal principles. The court determined that the questions of whether the condition constituted an exception to the discrimination laws and whether the complaint was appropriately conceived were better addressed at the final hearing, where a full exploration of the evidence and legal arguments could take place. Consequently, the court deferred the preliminary issue to the final hearing, allowing for a more comprehensive analysis before making any definitive findings.

Orders

Orders of the court

Preliminary issue deferred to final hearing

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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