Herbert v Five Dock Dockers RSL Rugby League Football Club
[2012] NSWADT 110
•06 June 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Herbert v Five Dock Dockers RSL Rugby League Football Club [2012] NSWADT 110 Hearing dates: 24 April 2012 Decision date: 06 June 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicants' complaint of race discrimination to proceed is refused
Leave for the applicants' complaint of age discrimination to proceed is refused.
Catchwords: LEAVE - complaints of race and age discrimination declined as lacking in substance - whether fair and just to grant leave for complaints to proceed - whether respondents are registered clubs - operation of exemption for voluntary bodies - merits of complaints Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Registered Clubs Act 1976Cases Cited: Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176
Jones and Anor v Ekermawi [2009] NSWCA 388Category: Principal judgment Parties: Stephen Herbert (Applicant)
Denise Herbert (Applicant)
Five Dock Dockers RSL Rugby League Football Club (Respondent)
Balmain District Junior Rugby League Football Club Incorporated (Respondent)Representation: S Herbert (Applicant in person)
D Herbert (Applicant in person)
HWL Ebsworth (Respondent)
File Number(s): 121034
REasons for decision
Introduction
The issue in these proceedings is whether the Tribunal should give Mr and Ms Herbert permission for their complaints of discrimination under the Anti-Discrimination Act 1977 (AD Act) to proceed. The complaints, which are made on behalf of their son who was 9 years old at the time, allege that he was banned from playing rugby league on the ground of his age and his race (Pacific Islander). The President of the Anti-Discrimination Board declined the complaints as lacking in substance.
The Tribunal has a discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the conduct, if proven, would not disclose a contravention of the AD Act. I have decided to refuse leave for the complaints to proceed because it is likely that if the complaints went ahead they would be dismissed.
Background
The complaints of race and age discrimination are brought against two respondents, the Five Dock Dockers RSL Rugby League Football Club (the Five Dock Club) and the Balmain District Junior Rugby League Football Club Inc. (the Balmain Club). The complaint is that Mr and Ms Herbert's son was registered to play rugby league with the Under 9s team in 2011. The Five Dock Club participates in the Balmain District Junior Rugby League competition which is administered by the Balmain Club. The Club denied Mr and Ms Herbert's request for their son to play permanently with the Under 10s team. Mr and Ms Herbert say that at the same time, the Club banned their son from playing rugby league in either the Under 9s or the Under 10s. The Club denies that it banned their son from playing Rugby League in the Under 9s team.
Legal basis for the complaints
The complaint alleges that both Clubs have discriminated against the Herberts' son on the ground of age and race. The provisions on which they rely are:
(1) section 19 (race discrimination in relation to goods and services),
(2) section 20A (race discrimination in relation to membership of a registered club)
(3) section 49ZYN (race discrimination in relation to goods and services) and
(4) section 49ZYP (age discrimination in relation to registered clubs).
Is either club a registered club?
Section 20A and s 49ZYP only apply to registered clubs. Registered clubs are clubs registered under the Registered Clubs Act1976: AD Act, s 4. A registered club is defined in s 4 of that Act as "a club that holds a club licence". Club licences are granted under the Liquor Act 2007. Clubs NSW (the Registered Clubs Association of New South Wales) maintains a website containing a complete list of registered clubs. Neither the Five Dock Club, nor the Balmain Club is on this list.
Contrary to the applicants' submission, it is irrelevant to the status of the respondents as a registered club whether either club is incorporated or what it does with the fees it collects. While the Five Dock Club is "an auxiliary" to the Club Five Dock RSL, which is a registered club, that does not make the Five Dock Club itself a registered club. It is also irrelevant to the status of the respondents as to whether they are engaged in trade or commerce. The definition of a registered club is straightforward. Evidence from the respondents satisfied me that neither club is a registered club.
Section 20A and 49ZYP apply only to registered clubs. As neither the first or second respondent is a registered club, the complaint, so far as it alleges a breach of those provisions, is misconceived and without merit. It is fair and just to refuse leave for those complaints to proceed.
Is either club a voluntary body?
The remaining provisions on which the applicants rely are s 19 and s 49ZYN, both of which relate to the provision of services. While not articulated in the complaint, I have assumed that the applicants are alleging that both clubs have either denied their son a service or have discriminated against him in relation to the terms on which their services have been provided.
There is an exception in the AD Act in relation to voluntary bodies. Section 57 of the AD Act provides that:
(1) In this section, "body" means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include:
(a) a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989 , or
(b) a friendly society registered under the Friendly Societies Act 1989 , or
(c) a building society or credit union registered under the Financial Institutions (NSW) Code , or
(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998 , or
(e) a registered club.
(2) Nothing in this Act affects:
(a) any rule or practice of a body which restricts admission to membership of that body, or
(b) the provision of benefits, facilities or services to members of that body.
There are three elements which must be established in order for a body to be regarded as a voluntary body:
(1) it must not be established by an Act;
(2) it must not be one of the kinds of bodies listed in (a) to (e)
(3) its activities must be carried on "otherwise than for profit".
The evidence establishes that neither club is established by an Act, nor are they bodies listed in (a) to (d).
The phrase carried on "otherwise than for profit" was discussed by the Tribunal in Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176. In determining whether The Hospitals Contribution Fund of Australia Ltd (HCF) was a voluntary body, the Tribunal said, at [108], that:
... in our view the term 'carried on otherwise than for profit' does not identify a body by reference to its actual financial results each year. It identifies a body by reference to its character. Whether it has a profit or a loss, and whether it calls a profit a surplus and a loss a deficit, the question is "what is its character? Does it have the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursing a common interest? The exception provided for in s 57 is, in our view, directed towards such bodies, and that it is bodies with that character that are identified by the term 'carried on otherwise than for profit'.
The Five Dock Club provided evidence from the Chief Executive Officer of Club Five Dock RSL, Mr Diaz. Mr Diaz stated that, in his view, the Five Dock Club is a totally not for profit organisation. He said that:
The [Five Dock] Club functions on a voluntary basis with no contracts, wages or other compensation paid to the committee, officials and coaches.
The Club relies on its people to raise funds by means of raffles, canteen service and most importantly gather sponsorship for the club.
The Operations Manager of the Balmain Club, Ms Webster, provided evidence that she is the only paid employee of that Club. All other members of the Balmain Club are volunteers.
Contrary to the applicants' contention, any purported inconsistency between s 57 of the AD Act and s 27 of the Age Discrimination Act 2004 (Cth) and s 28 of the Race Discrimination Act 1975 (Cth) is irrelevant.
I am satisfied on the basis of this evidence that both the Five Dock Club and the Balmain Club are voluntary bodies within the meaning of that term in s 57. Their character is that of a relatively small organisation the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest. Whether or not Club Five Dock RSL is a voluntary body or made a profit, is irrelevant. Both the Five Dock Club and the Balmain Club are distinct legal entities.
Being voluntary bodies, nothing in the AD Act affects the provision of benefits, facilities or services to members of those bodies. Consequently, complaints that the services provided by both Clubs to its members fall within the exception in s 57. In those circumstances it is fair and just to refuse leave for those complaints to proceed.
Conclusion
Mr and Ms Herbert have complained about the conduct of the Five Dock Club and the Balmain Club under s 20A or s 49ZYP of the AD Act. Neither club is liable under either of those provisions because neither club is a registered club. The complaints that the clubs have discriminated against Mr and Ms Herbert's son in the provision of goods and services under 19 and 49ZYN cannot be substantiated because the alleged conduct of both clubs comes within the exception in s 57 for voluntary bodies. In those circumstances, there is no need to consider whether or not any of the alleged conduct occurred or whether, if it did occur, it amounts to race or age discrimination. Consequently, Mr and Ms Herberts' submissions in relation to those issues have not been considered.
Orders
(1) Leave for the complaint of race discrimination to proceed is refused.
(2) Leave for the complaint of age discrimination to proceed is refused.
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Decision last updated: 06 June 2012
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