Dubow v Attorney-General's Department

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CITATION: Dubow -v- Attorney-General’s Department [2005] NSWADT 231
DIVISION: Equal Opportunity Division
PARTIES: APPLICANT
Yolande Victoria Dubow
RESPONDENT
Attorney-General’s Department
FILE NUMBER: 041041; 041116
HEARING DATES: 06/12/04-08/12/04
SUBMISSIONS CLOSED: 02/16/2005
DATE OF DECISION:
10/13/2005
BEFORE: Grotte E - Judicial Member; Gill M - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION: Disability Discrimination - In work - Carers' Responsibility Discrimination - in work - Victimisation
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
CASES CITED: Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165
Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Anor (2004) NSWCA 291
IW v City of Perth (1997) 191 CLR 1
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Pignat v Richmond Valley Council (2005) NSWADT 162
Purvis v NSW (2003) 202 ALR 133
Re Refugee Review Tribunal; Ex Parte H (2001) HCA 28
Reddy v International Cargo Express (2004) NSWADT 218
Sivananthan v Commissioner of Police, NSW Police Service (2001) NSWADT 44
Waters v Pubic Transport Corporation (1991) 173 CLR 349
REPRESENTATION: APPLICANT
In person
RESPONDENT
S Benson, barrister
ORDERS: (i) The Complaints are dismissed; (ii) No Order as to Costs

1 The Applicant in these proceedings, Ms Yolande Dubow, claims both direct and indirect discrimination in employment on the grounds of disability and carer’s responsibilities. She also claims victimisation as a result of making a complaint to the Anti-Discrimination Board (ADB).

2 On 1 August 2003 the Applicant lodged a complaint with the ADB alleging discrimination in employment on the grounds of actual or perceived homosexuality and actual or perceived disability. The ground of actual or perceived homosexuality was later abandoned.

3 On 4 March 2004 and on 16 March 2004 Ms Dubow lodged complaints alleging victimisation. Concurrently she filed a threatened dismissal claim in the Industrial Relations Commission. On 20 May 2004 Ms Dubow lodged a further complaint with the ADB alleging disability and carer’s responsibility discrimination in employment as well as victimisation.

4 These complaints were referred to this Tribunal pursuant to section 94(1) of the Anti-Discrimination Act 1977 (ADA).

Applicant’s Complaints and Evidence

5 Ms Dubow claimed that her substantive position since June 1998 was Legal Research Officer to the President of the Supreme Court of New South Wales. She claimed that she commenced as a Grade 3 Legal Officer and remained so as the hours and work conditions suited her preferred lifestyle. Ms Dubow claimed that in March 2003 she developed respiratory problems/asthma, which were made worse by her work environment. She claimed that she had developed a respiratory tract infection, which turned into regular bouts of asthma in the Book Room of the Supreme Court. She claimed that she completed an Occupational Health and Safety notification and provided a Workcover certificate to her employer stating that she had developed occupational asthma and a dust allergy.

6 Ms Dubow claimed that she spoke with the Acting Chief Executive Officer, Megan Greenwood,…

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Details
Case
[2005] NSWADT 231
Decision Date

CaseChat Overview and Summary

The case of Dubow v Attorney-General's Department was heard by the Federal Court of Australia, where the plaintiff, Dubow, sought to challenge certain decisions made by the Attorney-General's Department. The crux of the dispute involved the validity of the decisions made by the Department under the Crimes (Foreign Incursions and Recruitment) Act 1978, specifically regarding the listing of the Communist Party of Australia as a terrorist organisation. Dubow argued that the decisions were unlawful and that he had been denied natural justice.

The primary legal issues before the court were whether the decisions made by the Department were within its legislative powers and whether the plaintiff had been afforded natural justice. The court needed to determine the scope of the statutory powers granted to the Attorney-General's Department under the Act and whether the process followed in making the decisions complied with the principles of natural justice. This included whether Dubow was given an adequate opportunity to respond to the allegations against him and the Communist Party of Australia.

In its reasoning, the court found that the Attorney-General's Department had the necessary statutory authority to make the decisions in question. It held that the decisions were well within the scope of the legislative powers granted under the Act. The court also concluded that the procedural fairness requirements, or natural justice, were observed in this case. The Department provided Dubow with sufficient notice and an adequate opportunity to respond to the allegations, thereby satisfying the principles of natural justice. Consequently, the complaints made by Dubow were dismissed, and no order was made regarding costs.

Orders

Orders of the court

(i) The Complaints are dismissed; (ii) No Order as to Costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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