Khan v Commissioner, Department of Corrective Services & anor (EOD)

[2001] NSWADTAP 1

Appeal Panel

CITATION:	Khan -v- Commissioner, Department of Corrective Services & anor (EOD) [2001] NSWADTAP 1
PARTIES:	FIRST RESPONDENT Commissioner, Department of Corrective Services SECOND RESPONDENT Australasian Correctional Management Pty Ltd
FILE NUMBER:	009020
HEARING DATES:	07/12/2000
SUBMISSIONS CLOSED:	12/07/2000
DATE OF DECISION:	01/18/2001
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Hennessy N (Deputy President); Rees N - Judicial Member; Antonios Z - Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	001006 & 001007
DATE OF DECISION UNDER APPEAL:	06/08/2000
LEGISLATION CITED:	Interpretation Act 1987 Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5 Coulton and ors v Hocombe and ors (1986) 162 CLR 1 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, the Federal Court Jedko Game Co. Pty Ltd v. Collector of Customs (1987) 12 ALD 491 Brutus v. Cozens (1973) AC 854 NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (1956) 94 CLR 509 Life Insurance Co. of Australia Ltd v. Phillips (1925) 36 CLR 60 Neal v. Secretary, Department of Transport (1980) 29 ALR 350 Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126 Lombardo v. Federal Commissioner of Taxation (1979) 28 ALR 574 Hope v. Bathurst City Council (1980) 144 CLR 1 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 Mills v Meeking (1990) 91 ALR 16 Re Bolton; ex parte Beane (1987) 70 ALR 225
REPRESENTATION:	APPELLANT D Hillard, solicitor FIRST RESPONDENT T Anderson, barrister
ORDERS:	1. The appeal is upheld; 2. The Tribunal’s decision to dismiss the appellant’s race discrimination complaint is set aside; 3. The Tribunal’s decision to dismiss the appellant’s complaint of victimisation is set aside ; 4. The matter is remitted to the Tribunal as originally or similarly constituted, to be determined in accordance with these reasons and the following directions:; (a) The applicant to file and serve points of claim within the time nominated by the judicial member hearing the case; (b) The respondent to file and serve points of defence within the time nominated by the judicial member hearing the case; 5. The respondent’s application for costs is rejected.

1 This is an appeal by Mr Khan against a decision of the Equal Opportunity Division of the Tribunal dismissing his complaints. Mr Khan’s complaints of race discrimination and victimisation under the Anti-Discrimination Act 1977 (ADA) arose from treatment he received while in the Junee Correctional Centre. The Junee Correctional Centre is a private prison. Australasian Correctional Management Pty Limited (the second respondent) was contracted to run the prison at the time of the incidents alleged in Mr Khan’s complaints.

2 Mr Khan is a Muslim who eats Halal food, that is food that it is permissible for him to eat according to Islamic law. One of his allegations is that he has been discriminated against by the respondents because while prisoners of the Jewish faith are provided with Kosher foods, prisoners of the Islamic faith, such as him, are not provided with Halal food.

3 Australasian Correctional Management Pty Ltd, did not appear separately in the proceedings before the Tribunal. In the Tribunal’s reasons at paragraph 4, the Tribunal noted that the “Commission” represented the interests of both respondents. We take it that the Member was referring to the Commissioner of Corrective Services. Ms Anderson, legal representative for the Commissioner in the Appeal Panel proceedings, stated that she did not represent the second respondent. The appellant was represented by Mr Hillard.

Jurisdiction of Appeal Panel

4 The Appeal Panel has jurisdiction to hear this appeal under s 118 of the ADA and under s 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Under s 113 of the ADT Act an appeal can only be made on a question of law, unless the Tribunal grants leave for a review on the merits. That section states that:
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

5 The appellant in this case did not apply for leave to extend the appeal to a review of the merits of the decision.

History of the proceedings before the Tribunal

6 Prior to a matter being heard in the Equal Opportunity Division, the Tribunal arranged a case conference to discuss the procedural aspects of the complaint with the parties. At that case conference the judicial member suggested that certain questions be addressed and decided as preliminary issues. It was agreed between the parties and the Tribunal member that these questions should be:
(1) Whether as a Muslim, the applicant falls within the definition of “race” in the s 4 of the Anti-Discrimination Act ;
(2) If so, is the complaint properly characterised as being discrimination on the ground of race.

7 These questions will be referred to in these reasons as “the first question” and “the second question” respectively. The matter proceeded to hearing to determine these preliminary questions without Points of Claim or Points of Defence being requested. No evidence was adduced at the hearing, although the parties to the Appeal Panel proceedings agreed that section 7.34 of the respondent’s Operations Procedures Manual entitled “Dietary Constraints on the Basis of Religion” was in the President’s Report and available to the Tribunal when making its decision.

8 In its reasons for decision at paragraph 2, the Tribunal stated that:
A summary of the complaints is found in the President’s report which for the purposes of the present determination together with the agreed facts is to be taken as the basis for resolution of the dispute currently before the Tribunal.

9 The parties informed the Appeal Panel that there was no written statement of agreed facts, but that, for the purposes of the Tribunal proceedings, the following fact was agreed:
The respondent provides Kosher food to prisoners who adhere to the Jewish faith, but does not provide Halal food to prisoners who adhere to the Islamic faith.

10 The question the Tribunal asked itself was whether that fact could form the basis of a complaint of race discrimination. Other elements of a complaint of race discrimination under the ADA, such as whether the respondent was providing the applicant with a “service” pursuant to s 19 of the ADA, were deliberately not addressed.

Relevant legislation

11 The following provisions of the ADA are relevant to the proceedings in the Tribunal and the Appeal Panel: section 4(1) (definition of “race”); section 4A (act done for two or more reasons); and section 7 (definition of race discrimination). These provisions are set out below:
Section 4(1)
race includes colour, nationality, descent and ethnic, ethno-religious or national origin.
Section 4A
If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

Section 7

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) 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) 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 such 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.

Summary of Tribunal’s reasoning and decision

12 The Tribunal referred to dictionary definitions to ascertain the “ordinary meaning” of the term “ethno-religious origin”. It found that the word “ethno-religious” did not appear in the dictionaries it consulted. Definitions of the words “ethnology”, “ethnic” and “religion” did not assist the Tribunal in determining the meaning of “ethno-religious.” It concluded that the meaning of this term was “ambiguous or obscure” as provided for in s 34(b)(i) of the Interpretation Act 1987. The Tribunal then consulted the Second Reading Speech introducing the amendments to the ADA in 1994. The following passage was referred to:
Schedule 1 to the Bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act. Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include the concepts of descent and ethno-religious origin. . .
The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. (NSW Hansard 4 May 1994, page 827)

13 The Tribunal concluded that:
Having had reference to that address, it seems to us that all adherents to the Muslim religion are entitled, pursuant to the 1977 Act, to be considered to be a racial group for the purposes of that legislation.

14 The Tribunal then addressed the “second question” that is, whether the facts as agreed amount to discrimination “on the ground of” race. The Tribunal referred to the respondent’s Operations Procedures Manual and concluded that while special provision is made in the Manual for the provision of Kosher foods to prisoners, there is no reference to Halal food. The Tribunal concluded that:
We are of the view that the conduct of the Respondent in the circumstances of this case in refusing to serve food to the Applicant in accordance with the requirements of the Koran was not on the basis of “ethno-religious origin” but on the ground of the Applicant’s religion.” . . . With respect to Halal foods, it is clear that the dictates of the Koran itself, the primary religious document of all Muslims, are the source of the requirement that food be prepared, served and eaten in a certain way. It is the failure of the prison authorities to comply with the requirements of the Koran which are not referred to in the Manual that is complained of.

15 The Tribunal commented at paragraph 3 of the decision, that “It is acknowledged that disposition of the victimisation complaint depends upon that of the discrimination complaint.” Although paragraph 17 of the reasons suggests that the Tribunal dismissed the race discrimination complaint only, it appears from the cover sheet of the decision that the Tribunal dismissed both the race discrimination complaint and the victimisation complaint.

Documents before the Appeal Panel

16 The documents available to the Appeal Panel to determine this appeal were as follows:
• the Tribunal’s decision dated 8 June 2000;
• the transcript of the proceedings before the Tribunal;
• Notice of Appeal and Notice of Reply;
• written submission lodged by each party; and
• the President’s report.

Summary of appellant’s case

17 The grounds of appeal filed by the appellant are listed below:
A. The Tribunal erred by failing to properly apply the provisions of Section 7(1)(a) of the Anti-Discrimination Act
B. The Tribunal erred by failing to properly apply the provisions of s 7(2) of the Anti-Discrimination Act.
C. The Tribunal erred by failing to consider the Appellant’s submissions under section 7(1)(c) of the Anti-Discrimination Act in relation to a complaint of indirect race discrimination.
D. The Tribunal erred by finding at paragraph 15 of the judgment that the refusal to serve Halal food to the Appellant was on the ground of the Appellant’s religion.
E. The Tribunal erred by stating at paragraph 5 of the judgement that it was agreed by the Appellant that if the complaint was not characterised as discrimination on the ground of race, then the victimisation complaint should be dismissed.
F. The Tribunal erred by dismissing the complaint of victimisation without any consideration of that complaint whatsoever.

18 At the hearing, the solicitor for the appellant, Mr Hillard, advised the Appeal Panel that the principal grounds on which it was relying were grounds A, D, E and F. While the appellant was not abandoning its allegations in relation to indirect discrimination (s 7(1)(c)) or discrimination on the basis of a characteristic of race (s 7(2)), these grounds were seen as less relevant to the issues under appeal.

19 In relation to the “first question” Mr Hillard submitted that the Tribunal was correct in accepting his submission that Muslims come within the definition of a “race” because the Attorney- General, in his Second Reading Speech, specifically referred to Muslims when describing the meaning of the term “ethno-religious origin.”

20 In relation to the second question, Mr Hillard cited the Appeal Panel’s decision in Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5 where two key elements of the definition of direct race discrimination in s 7 were identified. The first element is “differential treatment”, or treatment which is less favourable 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. The second element is “causation”, that is, the treatment must be “on the ground of” race. While Mr Hillard agreed that the Tribunal correctly concluded that the respondent’s treatment amounted to “differential treatment,” he submitted that the Tribunal did not correctly consider the question of causation. Instead, it focused on whether the differential treatment itself related to religious practice. By way of example, Mr Hillard said that if the respondent allowed Jewish prisoners, but not Muslim prisoners, to participate in certain sporting activities, that would not mean that the discrimination was on the ground of “sport”. Similarly in this case, just because the nature of the differential treatment (failure to provide Halal food) relates to a religious practice it does not mean that the reason or ground for that treatment was religion. In this case, the basis for the differential treatment was “race” that is, certain benefits were provided to members of one race (Jews) and not provided to members of another race (Muslims).

Summary of respondent’s case

21 In its Notice of Reply, the respondent set out the reasons why the appeal should be refused:
(1) The Respondent’s failure to provide the appellant with Halal food did not constitute discrimination on the ground of race within the meaning of the Anti-Discrimination Act 1977;
(2) The fact that a person describes herself or himself as “a Muslim” or adheres to some or all of the beliefs and/or practices of the Muslim faith does not mean that the person has an “ethno-religious origin” within the meaning of that expression in the definition of “race” in section 4(1) of the Act.
(3) The Act draws a clear distinction between, on the one hand, membership or adherence to a religious faith (see section 56) or religious conviction (see section 119(iv)) and, on the other hand, an “ethno-religious origin”.
(4) The decision of the Tribunal at first instance to dismiss the Appellant’s complaint is correct. However, its finding (at paragraph 10) “that all adherents to the Muslim religion are entitled, pursuant to the 1977 Act, to be considered to be a racial group for the purposes of that legislation” is wrong and should be corrected by the Appeal Panel in its decision with respect to the appeal.
(5) Grounds D and E in the “Reasons for Appeal” do not raise a question of law. Accordingly, the said grounds should be struck out (the Appellant having not sought leave to extend the appeal to a review of the merits).

22 The respondent withdrew Point 6 of its reply.

23 In summary, the respondent submitted that the decision to dismiss the complaint of race discrimination was correct even though the Tribunal erred in law by finding at paragraph 10 of the decision, that all adherents to the Muslim religion are entitled to be considered to be a racial group for the purposes of the Act.

24 The respondent submitted that the appellant had not identified a question of law in relation to the “second question” and therefore the appeal should be dismissed. Ms Anderson, on behalf of the respondent, maintained that the appellant’s contention in paragraph D of their Notice of Appeal is not a question of law, but a question of fact. She contended that since the applicant ran his case before the Tribunal on the basis that the issue of whether any less favourable treatment was “on the ground of” race was a question of fact, he cannot now submit that it is question of law. The respondent quoted the High Court decision of Coulton and ors v Hocombe and ors (1986) 162 CLR 1) as authority for the proposition that parties are bound by the conduct of their case at the trial. A party should not be able to amend their case to raise a new matter if the other party would be subjected to a new trial on an issue different from that already litigated.

25 The respondent submitted in relation to the “first question” that the term “Muslim” is not a reference to a race, but to people who follow a particular religion, namely Islam. The term “ethno-religious” in s 4(1) of the Act means more than simply “religion”. In Ms Anderson’s view, the Tribunal made an error of law by concluding that being a follower of Islam was sufficient to come within the definition of ethno-religious origin.

26 The respondent applied for costs, but this application was not repeated in oral submissions.

Appeal Panel’s reasons and decision

27 Question of law? Section 113(2)(a) of the ADT Act provides that an appeal “may be made on any question of law.” We accept the proposition that a Notice of Appeal must at least identify a question of law before the appeal can proceed. The respondent submitted that no question of law has been identified in the appellant’s Notice of Appeal.

28 The ground identified in paragraph D of the Notice of Appeal was that “The Tribunal erred by finding . . . that the refusal to serve Halal food to the appellant was on the ground of the appellant’s religion.” We agree with the respondent’s submission that whether any differential treatment was “on the ground of” race is ultimately a question of fact. However, the appellant alleged that the Tribunal erred by failing to properly apply the provisions of s 7(1)(a) of the ADA which contains the definition of direct race discrimination. The meaning and application of this statutory provision to the facts as agreed, raises a question of law. Consequently a question of law has arisen for determination in this appeal.

29 Although the submission in relation to the application of s 7(1)(a) relates to the “second question” considered by the Tribunal, neither the Appeal Panel nor the Tribunal can correctly answer that question unless the answer to the first question is free from legal error.

30 Definition of ethno-religious. The Tribunal’s first question involved an issue of statutory interpretation, namely the meaning of the term “ethno-religious” in s 4(1) of the ADA.

31 Some questions of statutory construction are questions of fact, some are questions of law and some are mixed questions of fact and law. In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, the Federal Court (Neaves, French and Cooper JJ) set out five general propositions which emerge from the cases. These propositions were enunciated at p 289:
1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law - Jedko Game Co. Pty Ltd v. Collector of Customs (1987) 12 ALD 491; Brutus v. Cozens (1973) AC 854.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact - Jedko Game Co. Pty Ltd v.Collector of Customs (supra); NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Life Insurance Co. of Australia Ltd v. Phillips (1925) 36 CLR 60 at 78; Neal v. Secretary, Department of Transport (1980) 29 ALR 350 at 361-2.
3. The meaning of a technical legal term is a question of law. Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126 at 137-8; Lombardo v. Federal Commissioner of Taxation (1979) 28 ALR 574 at 581.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law - Life Insurance Co. of Australia v. Phillips (supra) at 79.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law - Hope v. Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v. Collector of Customs (supra) at 379 (Sheppard and Burchett JJ).

32 The term “ethno-religious” has no ordinary meaning and is not defined in any of the major dictionaries. No suggestion was made to us that it is a special term with a technical meaning. It appears to be a term created for the purposes of the Anti-Discrimination Act. Consequently it must be given a legal meaning. In accordance with the third proposition listed above, that meaning is a question of law.

33 In accordance with the fifth of the Pozzolanic propositions, the question of whether Islam (or being a Muslim) comes within the meaning of “ethno-religious” origin is a question of law.

34 Turning first to the meaning of the term “ethno-religious” origin, care should be taken when considering a compound expression not to come to a conclusion on the basis of looking at each word separately and assuming that the meaning of the expression is an amalgam of the meaning of each word. (Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 at 338, per Somervell LJ)

35 Some fundamental principles of statutory interpretation are set out in s 33 and s 34 of the Interpretation Act 1987. Section 33 states that the Tribunal should apply a “purposive” approach to statutory interpretation. Section 33 provides that:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

36 In our view, this provision requires a court or Tribunal to take into account the purpose of the legislation even if the meaning of the term is clear . The court or Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction which is consistent with the purpose of the legislation should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.)

37 Section 34 of the Interpretation Act 1987 sets out the circumstances in which extrinsic material, such as a Second Reading Speech, can be used to assist in ascertaining the meaning of a statutory term. So far as it is relevant to these proceedings, section 34(1) provides that:
In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,
(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

38 Section 34 only comes into operation when either one of the prerequisites in s 34(b)(i) or (ii) arises. The Tribunal in this case concluded that the term “ethno-religious origin” was “ambiguous or obscure.” It then turned to the passage in the Second Reading Speech quoted above at paragraph 12 and concluded, without further analysis, that Muslims are an ethno-religious group since the Minister used “Muslims” as an example of a group falling within that term.

39 In our view, the Tribunal made two errors of law in that reasoning. Firstly, the Tribunal did not separate the meaning of the term “ethno-religious” from the question of whether the applicant, as a Muslim, comes within that meaning. The Tribunal failed to make any finding on the meaning of the term “ethno-religious” other than that that the term is obscure and that Muslims are an ethno-religious group.

40 Secondly, the Tribunal erred by substituting the words of the Minister for the text of the legislation. That is, the Tribunal substituted “Jews, Muslims and Sikhs” for “ethno-religious”. In Re Bolton; ex parte Beane (1987) 70 ALR 225 at 227-228, Mason CJ, Wilson and Dawson JJ said that:
The words of a Minister must not be substituted for the text of the law . . . It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of parliament as expressed in the law.

41 These errors are sufficient justification for setting aside the decision to dismiss the race discrimination complaint and remitting it to the Tribunal to be heard and decided again. When approaching this question, the Tribunal should first determine the meaning of “ethno-religious origin” as a question of law and then determine whether the applicant, as a Muslim, comes within that definition. In answering the second question, the Tribunal should have before it some expert evidence as to whether or not the appellant’s adherence to the Muslim faith accords with the meaning of “ethno- religious origin.”

42 If the Tribunal finds that the appellant’s alleged “race”, namely “Muslim”, comes within the definition of “ethno-religious origin” then it should go on to determine the question of whether the “agreed facts” come within s 7 of the Act.

43 Whether or not the agreed facts can constitute discrimination “on the ground” of race is a question of law. Whether or not the respondents have in fact discriminated against the complainant on the ground race is ultimately a question of fact to be determined after the Tribunal has received evidence.

44 We accept the appellant’s written submission in relation to the meaning of “on the ground of”. In our view, once the Tribunal is satisfied that an applicant is a member of a particular race, then it is not appropriate to “split” that person’s race into ethnic aspects and religious aspects. As Mr Hillard pointed out, the subject matter of the differential treatment (provision of religiously acceptable food) cannot be equated with the reason or ground for the discriminatory treatment. In each case the Tribunal must ask itself whether race was one of the reasons for the discrimination. In this case the Tribunal made an error of law when, in paragraph 15, it concluded that the refusal to serve the complainant halal food was an act done on the ground of his religion despite its earlier finding that as a Muslim he fell within the statutory definition of “race”. If to be a Muslim could cause a person to fall within the statutory definition of “race”, treatment afforded to that person because he/she is a Muslim must be, for the purposes of the ADA, treatment on the ground of race. As we have previously stated, the issue of whether the complainant, as a Muslim, falls within the statutory definition of “race” awaits proper determination.

Complaint of victimisation

45 In the transcript of proceedings at page 30, lines 19 to 26, the following exchange took place between the presiding member and Mr Hillard:
King: If we find with respect to the first question, or either the first or second question, that the answer should be no, as I understand it you accept that proceedings should be dismissed, Mr Hillard.
Hillard: Certainly in terms of the second question that would be right.

46 At paragraph 5 of the decision the Tribunal stated that:
If the answer to the second question is no, it is agreed by the Applicant that the applications should be dismissed.

47 Without making any findings in relation to the victimisation complaint in its reasons, the Tribunal dismissed that complaint. Ms Anderson, on behalf of the respondent, did not oppose the appeal being upheld on the basis that the Tribunal erred in law by dismissing the victimisation complaint. According to the respondent, the basis for that error was a breach of procedural fairness in that the complaint was dismissed without providing the parties with a reasonable opportunity to be heard.

48 Ms Anderson conceded that the comment made by Mr Hillard in the transcript did not provide a sufficient basis for the Tribunal’s conclusion that he had agreed to the victimisation complaint being dismissed.

49 We agree that the passage in the transcript quoted above at paragraph 43, does not support the conclusion reached by the Tribunal at paragraph 5 of the decision. The decision by the Tribunal to dismiss the victimisation complaint without hearing evidence or submissions from either party in relation to that complaint, constituted a breach of procedural fairness, contrary to s 73(4)(c) of the ADT Act. Consequently, the decision to dismiss the victimisation complaint is set aside.

Orders

(1) The appeal is upheld.

(2) The Tribunal’s decision to dismiss the appellant’s race discrimination complaint is set aside.

(3) The Tribunal’s decision to dismiss the appellant’s complaint of victimisation is set aside.

(4) The matter is remitted to the Tribunal as originally or similarly to be determined in accordance with these reasons and the following directions:

(a) The applicant to file and serve points of claim within the time nominated by the judicial member hearing the case.
(b) The respondent to file and serve points of defence within the time nominated by the judicial member hearing the case.

(5) The respondent’s application for costs is rejected