Gorman v Commissioner for Social Housing (Discrimination) - [2021] ACAT 94

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GORMAN v COMMISSIONER FOR SOCIAL HOUSING (Discrimination) [2021] ACAT 94

DT 31/2018
Catchwords: DISCRIMINATION – application pursuant to section 55A of the ACT Civil and Administrative Tribunal Act 2008 seeking to give effect to a conciliation agreement – application for compensation for respondent’s delay in implementing agreed terms of conciliation agreement – whether the tribunal has the power to make the order sought – section 55A must be exercised in a way that ensures the terms of the conciliation agreement are met
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55A, 56, 74
Human Rights Commission Act 2005 ss 55, 62
Equal Opportunity Act 2010 (Vic) s 120
Anti-Discrimination Act 1977 (NSW) s 108

Cases cited:Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

Tribunal:Presidential Member H Robinson

Date of Orders:  29 September 2021
Date of Reasons for Decision:      29 September 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 31/2018
BETWEEN:
TRACEY GORMAN
Applicant

AND:
COMMISSIONER FOR SOCIAL HOUSING
Respondent

TRIBUNAL:Presidential Member H Robinson

DATE:29 September 2021

ORDER

The Tribunal orders that:

The tribunal makes no order as to compensation.

………………………………..

Presidential Member H Robinson

REASONS FOR DECISION

This is an application brought by the applicant pursuant to section 55A of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) to “give effect to” a conciliation agreement she entered with the respondent following a conciliation process under the Human Rights Commission Act 2005 (HRC Act). While much of this matter has been resolved by consent orders, there is an outstanding issue as to whether the Tribunal may make an order for compensation or damages when making orders pursuant to section 55A of the ACAT Act. This decision deals with that issue.

Background

The applicant and her daughter are tenants of a property (the premises) owned by the respondent.
On 29 May 2018 the applicant filed a discrimination complaint against the respondent with the ACT Human Rights Commission (HRC), alleging discrimination in the areas of the provision of goods, services and facilities and accommodation.
The parties participated in conciliation. On 26 September 2019 the applicant signed a conciliation agreement (the conciliation agreement) pursuant to section 62 of the HRC Act. A representative of the respondent signed the same agreement on 5 October 2019.
The conciliation agreement is prefaced with the words “without any admission of liability, the parties agree…” and is stated to be confidential. It contains five operative clauses.
Clauses 1 and 2 deal with works that were agreed to be undertaken to the premises. It is not in contest that the respondent met these obligations.
Clause 3 relates to sourcing and undertaking disability awareness training for staff “within four to six months”. The parties agree that this has been completed. The applicant was notified on this by way of a letter dated 22 December 2020.
Clauses 4 to 6 provide that:
4.     Within four to six months of signing this agreement Housing ACT will complete a review of policies with a view to involving parents, carers and guardians in decision making processes about modifications for disability properties and make any necessary improvements to and consolidation of these policies to ensure that this occurs;
5.     Within four to six months of signing this agreement Housing ACT will complete a review of their current Business Rule on Disabled Modifications in relation to air-conditioning and make any necessary improvements in consultation with relevant organisations;
6.     Within two weeks of completing each of the actions outlined in clauses 1 to 5 of this agreement, Housing ACT will advise the ACT HRC that each action has been completed.
The respondent did not complete the actions agreed to in clauses 4-5 within the agreed timeframes i.e. they were not completed by April 2019. They remained uncompleted at the time the applicant filed this application, and at the time of the hearing.
Throughout 2019-2021 the HRC and the applicant’s lawyers made numerous enquiries as to ACT Housing’s progress in relation to those reviews. The responses from the respondent, while polite and apologetic, were generally also vague and non-committal as to timeframes for completing of the reviews.
On 8 April 2021 the applicant lodged this application with the tribunal.
At the first directions hearing on 20 July 2021 the respondent conceded that they had not complied with clauses 4 to 6. The respondent’s representative requested an adjournment to seek instructions about a timeframe.
At the next hearing on 10 September 2021, the respondent agreed to orders pursuant to section 55A of the ACAT Act that the reviews provided for in clauses 4 and 5 of the conciliation agreement be completed by 30 September 2021. I made orders accordingly.
The only question remaining is whether the applicant can and should seek $1,000 compensation to reflect the hurt, stress and inconvenience of having to pursue enforcement of these clauses for over two years, including in the Tribunal.

Legislative basis

Section 55(1) of the HRC Act provides that the HRC may, at any time, conciliate a complaint, if satisfied the complaint is appropriate for conciliation.
Section 62(1) of the HRC Act provides that if a complaint is resolved by conciliation, the commissioner may help the parties to make a written record (a conciliation agreement) of the agreement the parties have reached.
Section 62(3)(b) of the HRC Act provides that if the complaint is, inter alia, a discrimination complaint, the commission must give a copy of the complaint to the tribunal.
Section 55A of the ACAT Act then provides for conciliation agreements made under section 62(1) of the HRC Act to be enforced through the Tribunal:
55A Conciliated agreement orders
(1)This section applies if a conciliation agreement about a complaint is given to the tribunal under the Human Rights Commission Act 2005, section 62 (3) (b).
(2)The tribunal must keep a copy of the agreement.
(3)On application by a party, the tribunal may make any order it considers appropriate to give effect to the agreement.
(4)A decision of the tribunal to refuse to make an order under this section does not affect the validity of the conciliation agreement.
Section 56(d) of the ACAT Act provides that, in addition to the range of powers set out elsewhere, the Tribunal may:
(d) take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
The question before the Tribunal is whether any of these powers, whether under section 55A or section 56(d), would authorise the Tribunal to make an order of the kind sought by the applicant in relation to the payment of compensation.
The applicant’s submissions
The applicant filed and relied upon some two hundred pages of emails and other communications between the applicant’s lawyer, the HRC and the respondent in which attempts were made by the former two to follow up on the respondent’s implementation of the agreement. The applicant also filed a statement which detailed the stress and frustration she has experienced trying to enforce the conciliation agreement, the emotional toil it has taken on her, and her loss of faith in the respondent. This evidence was unchallenged.
In essence, the applicant submitted that the Tribunal may make an order for a penalty under section 55A of the ACAT Act, as this is a means to ‘give effect to’ the conciliation agreement. The applicant further submitted that the word ‘may’ gives the Tribunal a ‘very broad’ discretion under section 55A to ‘make any order’, and that power should not be artificially constrained or read down. The applicant submitted that:
Whilst there is no specific case law on the meaning of ‘give effect to’ in the context of section 55A, in Australian Competition & Consumer Commission v Visy Paper Pty Ltd, the Federal Court stated that in contract law: ‘give effect to’, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.
The applicant submitted that such an award would recognise that the delay has imposed an emotional and psychological burden on the applicant. The implication appears to be that, given the delays in implementing the promised reviews, simply making orders allowing enforcement of the agreed terms would not be sufficient to give effect to the agreement, and “that something more is required to ‘give effect to’ the agreement and to ensure the Respondent’s compliance”.
Alternatively, the applicant submitted, such an order would “serve to accelerate action on the part of the Respondent to fulfil its obligations in future cases and reduce the need of vulnerable parties to resort to enforcement proceedings at ACAT”.[1]
[1] Paragraph 17 of the applicant’s submission
Moreover, the applicant submitted that regard should be had to the situation in other jurisdictions, where compensation orders can be made by a tribunal in similar circumstances. For example, in Victoria, conciliation agreements produced with the assistance of the Victorian Human Rights Commission are taken to be an order of the Victorian Civil and Administrative Tribunal (VCAT), once registered.[2] Section 125(a)(ii) of that Equal Opportunity Act 2010 (Vic) allows VCAT to make orders for compensation for loss, damage, or injury suffered in the consequence of any contravention. Similarly, in NSW, the NSW Civil and Administrative Tribunal (NCAT) may award damages of up to $100,000 in the case of any complaint referred to it by the Anti-Discrimination Board.[3]
[2] Equal Opportunity Act 2010 (Vic) section 120(4)
[3] Anti-Discrimination Act 1977 (NSW) section 108(2)(a)
The applicant acknowledged that such a power was “not explicit” in the Territory’s legislation, but:
Limiting the scope of section 55A to orders made only on the same or similar terms of a conciliation agreement artificially limits the utility of section 55A and doing so is inconsistent with approaches taken in NSW and Victoria. It is submitted that a narrow interpretation is also contrary to the objects and purposes of the ACAT Act, which include ensuring that applications to the Tribunal are resolved as quickly as is consistent with achieving justice, ensuring the Tribunal’s decisions are fair, enhancing the quality of decision making and encouraging and bringing about compliance in decision making under legislation.
A power to award compensation could, the applicant submitted, submitted, be implied from the language and context of the Act, meaning that ACAT has the power to:
a. … make any order that will ensure that a breaching party will carry out the terms of the agreement in practice; and
b. Any order that would ensure compliance, including an order for compensation, would fall within the broad scope of section 55A.
The respondent’s position
The respondent’s position is that section 55A of the ACAT Act clearly does not permit the making of a compensation order.
The respondent submitted that:
10. The word ‘effect’ is not defined in the ACAT Act or in the Legislation Act 2001. So, we must consider the ordinary meaning of the word. The Macquarie Dictionary defines the verb of the word ‘effect’ as “to produce as an effect; bring about; accomplish; make happen.”
11. Using this definition in the present context, the Tribunal may only make an order under s 55A of the ACAT to “accomplish” the conciliation agreement, or “make [it] happen”. In other words, to ensure that the terms of the conciliation agreement are met
12. It is the Respondent’s submission that the order sought by the Applicant will not do this. Even the Applicant contends that this order would “serve to accelerate action on the part of the Respondent to fulfil its obligations in future cases and reduce the need of vulnerable parties to resort to enforcement proceedings at ACAT” (paragraph 17 of the Applicant’s submission).
13. In the Respondent’s submission, this is not about giving effect to the conciliation agreement between the Applicant and the Respondent, but about avoiding a similar situation for other applicants. This is outside of the scope of s 55A.
The respondent noted that the tribunal has an express power under section 74 of the ACAT Act to order respondent the payment of money ‘to the Territory’ where a party has, without reasonable cause, failed to comply with an order of the Tribunal. As a matter of statutory interpretation, the specific power in section 74 of the ACAT Act would tell against reading the general power in section 56(d) being read in a way that would permit the Tribunal to orders payments in for other breaches, or to other persons, such as another party.

Consideration

I accept that the respondent has been in breach of the conciliation agreement since April 2019. During that time, the applicant, her representatives and the HRC have made sustained and dedicated efforts to get the respondent to comply with the agreement. I accept the applicant’s evidence as to the toll seeking enforcement of the agreement has taken on her.
However, the mere fact of the respondent’s breach, even its ongoing breach, does not provide a basis for the Tribunal, sitting in this jurisdiction, to make a compensation order.
Section 55A(3) of the ACAT Act provides that the tribunal may make “any order it considers appropriate to give effect to” a conciliation agreement given to the tribunal under the HRC Act, section 62(3)(b). This is a broad power, but it must be viewed in the context of the terms, language, scope, purpose and context of the legislation as a whole.[4]
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [39]
As extracted above, the dictionary meaning of ‘give effect to’ is “to put into practice” or “make operative” or “make happen”: the purpose of section 55A of the ACAT Act is to allow the Tribunal to craft orders that give effect to, or make happen, the terms set out in the conciliation agreement. Consequently, having regard to the context, the discretion in section 55A must be exercised in a way that is directed to “making the agreement happen” – or, in other words, ensuring that that the terms of the conciliation agreement are met.
The compensation order sought by the applicant does not, and cannot, “give effect to” the terms of the agreement. Nothing in the outstanding terms of the agreement gives right to a right to compensation for the applicant. To order compensation would be to make an order that was additional to matters agreed in the conciliation agreement and is beyond power.
It may be that there are cases where monetary damages could be the best or only way of giving effect to an agreement – for example, in a situation where work is to be performed, and the respondent signatory does not perform that work, compensation may be awarded so that the applicant can have the work performed by another person, or the value of the work otherwise. But this is not such a case.
Section 55A is not intended as a means of ensuring compliance with agreements. It is a means of having the agreement embodied in orders so that the orders can be enforced – in other words, the agreement between the parties is given a new, changed character, as orders of the tribunal rather than a private agreement. Those orders are enforceable through an enforcement process in the Magistrates Court. This may overcome difficulties that arise if a conciliation agreement is instead sought to be enforced as a private contract.
The Tribunal’s jurisdiction to make punitive orders for breach of its orders is found in section 74 of the ACAT Act. This power is available only where a party fails to comply with an order of the tribunal. The respondent has not breached tribunal orders, so this provision is not available in this case. No other provision provides a relevant power to penalise the respondent.
There is also merit in the respondent’s argument that the specific power to impose penalties in section 74 of the ACAT Act limits a broader reading of the general power in section 56(d) to do so. The legal maxim generalia specialibus non derogant provides that there is a conflict between a general and a specific provision the specific provision must prevail, and this has been held to apply also to the relation to the conferral of general and specific powers: see Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513.
In does appear that in other jurisdictions, including Victoria, tribunals are given the power to impose punitive orders on parties who fail to comply with conciliation agreement. However, that is not the case in the Territory. That these powers are expressly conferred in other jurisdictions better supports the argument that they should not be inferred in this jurisdiction, as the Territory’s legislature has implemented a different legislative framework.
The respondent’s delay in meetings its obligations under the conciliation agreement is disappointing and I acknowledge that the applicant, having negotiated a settlement in good faith, is frustrated and hurt by the process. I share the applicant’s concerns that simply ordering the respondent to do what it agreed to do several years ago does not truly give effect to the spirit of the conciliated agreement. However, this alone does not grant me to the power to award damages or compensation for the breach, or to alter the terms of the settlement agreement to provide a monetary remedy for the delay.
I am satisfied that the Tribunal does not have the jurisdiction to make the compensation order sought and decline to make any further order.
………………………………..

Presidential Member H Robinson

Date(s) of hearing	10 September 2021
Solicitors for the Applicant:	Ms F Choudhury, Canberra Community Law
Respondent:	Mr D Boggs, Tribunal Advocate