Dungay v Kempsey Shire Council

[2019] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dungay v Kempsey Shire Council [2019] NSWCATAD 225
Hearing dates:	15 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	(1) Leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 is refused.
Catchwords:	EQUAL OPPORTUNITY – leave required for complaint to proceed – principles applying to grant of leave   EQUAL OPPORTUNITY – race discrimination in provision of goods and services
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jones & Anor v Ekermawi [2009] NSWCA 388 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Category:	Procedural and other rulings
Parties:	James “Gurri” Dungay (Applicant) Kempsey Shire Council (Respondent)
Representation:	Solicitors: Applicant (Self Represented) C Milburn (General Manager) (Respondent)
File Number(s):	2019/00294320
Publication restriction:	Nil

REASONS FOR DECISION

1. Mr Dungay is a Dunghutti man from West Kempsey. He is an elder in the Dunghutti community. He considers himself responsible for taking care of Dunghutti land. These proceedings concerned an application by Mr Dungay for leave to proceed with a complaint of race discrimination in the provision of goods and services against the Kempsey Shire Council. The complaint was declined by the President of the Anti-Discrimination Board (ADB) on the basis that it was lacking in substance. Mr Dungay requested that the President of the ADB refer the complaint to the Tribunal. Section 96 of the Anti-Discrimination Act 1977 (ADA) requires that when the President of the ADB declines a complaint, the complainant must obtain the leave of the Tribunal to proceed.

Background

2. On 21 January 2019, Mr Dungay lodged a complaint with the President of the Anti-Discrimination Board (the President) (and the ADB) alleging that he had been discriminated against by the Kempsey Shire Council (KSC) in the area of the provision of goods and services, on the grounds of race.

3. Mr Dungay stated in his complaint to the ADB as follows:

I feel that I’ve been racially discriminated against because I’m Aboriginal.

My tribe is Dunghutti, around the Kempsey/Macleay valley on the mid North Coast of NSW and I am an elder.

I registered at the KSC reception desk to talk on Thursday 13th or maybe Friday 14 December (2018) and had applied to talk at the public forum Kempsey Shire Council meeting.

The public forum was held on 18 December 2018 at the Kempsey Shire Council Civic Centre, West Kempsey.

I did not get a chance to talk about:

(i)   no tarring of Point Plomer Road, Crescent Head by KSC.

(ii)   and also handing back my certificate of appreciation award for our community, which was given to me by the current Mayor, Liz Campbell in 2012, permission denied.

(iii)   I was also promised to travel on a bus with other KSC counsellors to inspect Point Plomer Road, Crescent Head, but was not allowed in the bus.

(iv)   Camping near Point Plomer Road on Kempsey Local Aboriginal Land Council (KLALC) land and KSC did not give me or the Board of Directors of KLALC a survey sheet in which their decision was made to tar Point Plomer Road, Crescent Head.

4. Mr Dungay’s letter stated at the end:

In protest against KSC to tar Point Plomer Road Crescent Head New South Wales.

5. The complaint was accepted by the President of the ADB for the period 13 to 18 December 2018. The KSC responded to a letter from the President of the ADB denying it had discriminated against Mr Dungay on the grounds of his race.

The Respondent’s case

6. The Respondent stated in its response to the President of the Anti-Discrimination Board that it received Mr Dungay’s application to address the ordinary Council meeting of 18 December 2018 on 13 December 2018.

7. It had stated:

Hand back Ceremony – of Appreciation Certificate given in 2012: – my undying efforts to our community has protest against tarring Point Plomer Road Crescent Head. 2003 – Australia Day award given back to KSC, also has protest.

8. Mr Dungay’s application was assessed according to the Council’s Code. The application did not refer to a specific agenda item. The agenda for the meeting had been large. Council had deferred seven items of business to the February 2019 meeting. There was no opportunity to accept applications to speak on non-agenda items at that meeting. Council had accepted two applications from speakers regarding agenda item 15.1 community consultation – Point Plomer Road. Mr Dungay had previously addressed the Council regarding Point Plomer Road on 18 September 2018.

9. The inspection of Point Plomer Road – the bus trip referred to by Mr Dungay – did not include members of the community. It was an opportunity for the General Manager to brief councillors on issues.

10. The Council had responded to Mr Dungay’s correspondence concerning his concerns about the sealing of the road in a letter dated 7 December 2018.

11. The Council’s General Manager had met with the regional manager for the Department of Aboriginal Affairs and Council had agreed to undertake investigation of significant sites prior to commencing any work.

12. The Respondent denied that it had unlawfully discriminated against Mr Dungay.

Requirement to seek leave of the Tribunal

13. The President declined the complaint on 5 August 2019 as lacking in substance.

14. The President’s letter stated that the reasons for the decision were:

The complainant has not provided sufficient information to establish that he was refused service or treated less favourably by the Respondent on the ground of his race in relation to permission to speak at the council meeting or permission to ride on the bus with Councillors.

The Respondent has provided information for the decisions made in relation to the council meeting and the inspection of Point Plomer Road by Councillors that do not equate to unlawful discrimination.

15. Because the President declined Mr Dungay’s complaint (the Complaint) on the ground that the Complaint was lacking in substance, Mr Dungay may not proceed with the Complaint in the Tribunal without leave of the Tribunal: s 96(1) of the Act.

16. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

Statutory framework and principles governing the grant of leave

17. Where the President has declined a complaint under s 92 of the ADA, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the ADA.

18. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).

Principles for granting leave under section 96 of the ADA

19. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

The Tribunal’s approach to determining a leave application

20. The Tribunal’s approach to determining a leave application is to take the complaint at its highest to determine whether the complaint could amount to unlawful discrimination if the facts alleged were proved at hearing. Accordingly, the Tribunal assumes that the facts alleged by Mr Dungay occurred.

21. The next step is then for the Tribunal to hold this set of facts against the provisions of the ADA to determine whether a Tribunal could find that there had been unlawful discrimination.

Statutory framework: unlawful discrimination

22. The Act makes it unlawful for a provider of goods and services to discriminate against a person on the ground of race.

7 What constitutes discrimination on the ground of race

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

(a)   on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b)   on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c)    requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

...

23. “Race” is defined in section 4 of the ADA:

"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

24. It was not contested, and the Tribunal accepts for the purposes of these proceedings, that Mr Dungay is an indigenous Australian.

25. The Act explains what constitutes discrimination on the ground of race in the provision of goods and services :

19 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.

26. For the purposes of considering this leave application, the Tribunal will hypothetically accept that Kempsey Shire Council was providing services to Mr Dungay under s 19 of the ADA. It is not certain however, that a Tribunal would conclude this at any substantive hearing.

27. Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the ADA.

Mr Dungay’s submissions on why leave should be granted

28. It was clear from this complaint and submissions to the Tribunal that Mr Dungay’s actions were in protest against any move to tar Point Plomer Road in Crescent Head. The Tribunal understands that Mr Dungay considered himself disrespected as an Aboriginal man and elder by the Council. The Tribunal understood from Mr Dungay’s submissions to the Tribunal hearing that he was concerned about damage to an important cultural site that might be caused by tarring of the road.

The Respondent’s submissions

29. The Respondent relied on its written response to the Complaint and oral submissions as set out above. The Respondent pressed that the Complaint was lacking in substance and that the Tribunal should refuse leave for Mr Dungay to proceed with the Complaint.

30. The Respondent submitted that Mr Dungay had not discharged the onus of demonstrating that leave should be granted.

31. The Respondent submitted that Mr Dungay's complaint was lacking in substance because it had not responded to Mr Dungay’s requests on the basis of his race. Decisions about the meeting agenda were made on the basis of the Council’s Code. Mr Dungay had already addressed a meeting in September 2018 concerning Point Plomer Road. There were too many items on the agenda already by the time Mr Dungay requested in December 2018 to address the December meeting. The bus trip was for the General Manager to brief Councillors – it was not open to the public. The General Manager was unaware of a request from Mr Dungay to go on the bus. A survey had not been withheld from Mr Dungay because he was indigenous. A public opportunity to hand back his certificate of appreciation could be organised.

32. Even if Mr Dungay’s allegations were factually correct, there was no evidentiary or factual basis that could result in a finding that the Respondent unlawfully discriminated against Mr Dungay on the grounds of his indigenous race and contravened the Anti-Discrimination Act1977 (NSW).

33. For these reasons, the Respondent submitted that it would not be fair and just for leave to be granted and leave should be refused.

Tribunal’s consideration

34. In answering the question of whether leave for the Complaint to proceed should be granted, the Tribunal must examine the Complaint and decide whether in the circumstances of this case it is “fair and just” to grant or refuse leave. In undertaking that task, the Tribunal must consider among other things, whether, if the facts asserted by Mr Dungay are accepted, cast as a complaint of direct and/or indirect discrimination, the alleged conduct of the Council might disclose a contravention of the Act.

35. For the purpose of this exercise, the Tribunal will assume but does not decide that Kempsey Shire Council was providing services to Mr Dungay under s 19 of the ADA in relation to:

• Not placing his requested item on the Agenda for the 18 December 2018 meeting;

• Not permitting Mr Dungay to hand back a certificate of appreciation;

• Not permitting him to travel on a bus with Councillors; and

• Not being provided with a survey sheet. Would be entitled to rely on s 19 of the ADA.

36. However, the Courts have in the past held that it is necessary to define the service involved specifically. Mr Dungay’s complaint did not do this. See Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1.

Complaint of direct race discrimination

37. To establish a complaint of direct race discrimination under sections 7 and 19 of the ADA, Mr Dungay would need to establish:

1. That Kempsey Shire Council treated him less favourably, in the same or similar circumstances, than it treated, or would have treated a person who was not of his race; and

2. That one of the reasons for that less favourable treatment was because of his race, a characteristic that generally appertains to, or is generally imputed to persons of his particular race (causation).

38. The first element requires a comparison to be drawn between the treatment afforded to Mr Dungay and the treatment that was afforded, or would have been afforded, to a person not of Mr Dungay’s race, in the same or similar circumstances to Mr Dungay. Critical to that exercise, is the identification of the circumstances surrounding the alleged less favourable treatment.

39. Mr Dungay stated that at the meeting of 18 December 2018, two non- indigenous people were permitted to speak on the issue of Point Plomer Road.

40. Mr Dungay concluded that the reason two non-indigenous people were permitted to speak at the meeting, and he was not, was because he was indigenous, and they were non-indigenous. He did not refer to any evidence supporting his conclusion. The Kempsey Shire Council stated that Mr Dungay had been permitted to speak about the issue in September 2018. Further, his application to speak at the December 2018 meeting did not refer to an identifiable item on the agenda. The meeting agenda was already full at that time.

Differential treatment and the comparator

41. The Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [41] confirmed that there are two key components of a successful allegation of direct discrimination; the first being differential treatment and the second causation. As to what constitutes differential treatment, the Appeal Panel found that the appropriate question to be asked was; "Did the [Respondent], on the ground of race ... treat [the Applicant] less favourably than it treated or would have treated [a person of a different race] in the same circumstances, or in circumstances which were not materially different?": see Aldridge at [44].

42. In order to consider differential treatment, it is necessary to identify a comparator, being a person without the relevant characteristics of the aggrieved person against whom the unfavourable treatment can be compared: see Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [222].

43. Mr Dungay has set out a comparator to him not of his race – 2 non-indigenous people who were permitted to speak in relation to the Point Plomer agenda item. Mr Dungay then needs to show that at least one of the real or true reasons for this less favourable treatment was Mr Dungay’s race. Mr Dungay was not able to point to any evidence of this.

44. Mr Dungay did not offer either a real or a hypothetical comparator of a non-indigenous person who was permitted to hand back a certificate of appreciation.

45. Mr Dungay told the Tribunal that Mr Max Baxter of the Crescent Head Ratepayers Association had told him that he did not see why Mr Dungay should not be able to travel on the Councillor’s bus to inspect Point Plomer Road. It appears from the submissions to the Tribunal that Mr Baxter was not in a position in any event to invite or refuse access to the bus trip. Mr Dungay did not give to the Tribunal an example of a non-indigenous comparator who was permitted to travel on the bus.

46. Mr Dungay did not provide any evidence that the real or true reason for any failure to provide a survey sheet regarding the decision to tar Point Plomer Road to the Local Aboriginal Land Council was his race.

47. If the matter were to proceed to hearing, I think the likelihood of Mr Dungay being able to establish that the real reason he had been subjected to any less favourable treatment was his race, would be remote.

Indirect discrimination

48. To succeed as a complaint of indirect discrimination under sections 7 and 19 of the ADA, Mr Dungay must establish that in relation to each of the alleged acts of unfavourable treatment:

• The Council imposed a requirement or condition; and

• He was unable to comply with that requirement or condition; and

• A substantially higher proportion of non-indigenous persons complied with or were able to comply with that requirement or condition; and

• The requirement or condition was not reasonable having regard to the circumstances of the case.

49. Mr Dungay did not allege that the Council had imposed such a requirement or condition in relation to any of the matters he complained of.

50. It follows that, cast as a complaint of indirect discrimination, the Complaint must fail.

Should the Tribunal in all the circumstances grant leave?

51. The President declined Mr Dungay’s complaint on the basis it was lacking in substance. A Tribunal hearing the matter is likely to find that Mr Dungay is indigenous. It is unlikely however that a Tribunal would find that Mr Dungay was treated less favourably by the Kempsey Shire Council under sections 7 and 19 in the provision of services because of the lack of evidence that at least one of the real or true reasons for any less favourable treatment of Mr Dungay was his indigenous race.

52. Mr Dungay's submissions did not engage with the legal principles to be considered by the Tribunal in determining whether to grant leave for Mr Dungay's complaint to proceed.

53. The Tribunal must exercise the discretion to grant leave, having regard to the purpose of the legislative scheme established by the ADA and be guided by the consideration that the refusal of leave will finally determine Mr Dungay’s rights under that scheme. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case.

Decision

54. For the reasons set out above, the Tribunal concludes that the prospects of the referred Complaint succeeding are poor, and it is fair and equitable, having regard to the interests of both parties, to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.

Order

1. Leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 October 2019