Douglass v Community Business Development and Information Technology Services

[2008] NSWADT 346

CITATION:	Douglass v Community Business Development and Information Technology Services [2008] NSWADT 346
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Keith Douglass RESPONDENT Community Business Development and Information Technology Services
FILE NUMBER:	081093
HEARING DATES:	11 November 2008
SUBMISSIONS CLOSED:	11 November 2008
EXTEMPORE DECISION DATE:	11 November 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Leave - race, special needs programs and activities
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Administrative Decisions Tribunal Act 1997 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person RESPONDENT M Ziemer, agent
ORDERS:	Leave is refused.

1 On 11 November 2008 I refused leave for Mr Douglass’ complaint of race discrimination in employment and in the provision of services to go ahead. Mr Douglass has requested reasons for that decision. Brief reasons are set out below.

2 Mr Douglass is an indigenous Australian. He received services from and was employed by Community Business Development and Information Technology Services. (CBDITS). Although I am not aware of whether the CBDITS was incorporated, it is apparently a non-profit organisation established to assist indigenous people to become self-sufficient and improve their quality of life through individualised case management services. That kind of preference for indigenous people is not discriminatory against people who are not indigenous Australians because it is not unlawful to afford “persons of a particular race access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities”: Anti-Discrimination Act 1977, section 21.

3 With the assistance of the CBDITS Mr Douglass was attempting to establish his own business, Guyang Eco Tours. He was also employed by CBDITS to monitor cultural heritage sites, remove rubbish and monitor and report on environmental issues. Mr Douglass alleged that he was dismissed from his employment on 13 December 2007 and that in the months prior to that time Mr Mark Ziemer subjected him to many unreasonable demands.

4 The President of the Anti-Discrimination Board declined Mr Douglass’ complaint on the basis that it was misconceived or lacking in substance. Mr Douglass requested the Tribunal’s permission for the complaints under the Anti-Discrimination Act 1977 (AD Act) to proceed.

5 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. 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. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects 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.

6 Being self-represented, Mr Douglass was not able to articulate the legal character of his complaints. I understand that he alleges a breach of section 8(2) (employment) and section 19 (services) of the AD Act. Those provisions state respectively, that:

Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

Provision of goods and services

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, or

(b) in the terms on which the other person is provided with those goods or services.

7 To succeed in a complaint of direct race discrimination as defined in section 7(1)(a), Mr Douglass would have to prove, among other things, that at least one of the reasons for the way he was treated was his race.

8 Mr Douglass agreed that he obtained assistance and employment because he was an indigenous Australian and that he would not have received that assistance or employment had he been a member of another race. He also agreed that the person who he thought was being groomed to take over his position was also an indigenous Australian. Those facts mean that it is highly unlikely that Mr Douglass would be able to prove that his race was even one of the reasons for the way CBDITS treated him.

9 I made it clear to Mr Douglass during the course of the hearing that by refusing permission for his complaints to go ahead I was not deciding that he had been treated fairly. That is not the question I had to determine. Rather, the question I needed to ask was, in summary, whether his complaints had any chance of success if they went ahead. As I am of the view that his complaints have little or no merit, leave is refused.