Kloska and National Jewish Association (Discrimination)

[2009] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KLOSKA and NATIONAL JEWISH ASSOCIATION (Discrimination) [2009] ACAT 8

DT 10 of 2008

Catchwords:             HUMAN RIGHTS - DISCRIMINATION – Review of decision of ACT Human Rights and Discrimination Commissioner – grounds of discrimination – discrimination due to religious beliefs

HUMAN RIGHTS – Discrimination – Discrimination Act 1991 (ACT) s31 – institutions exempt from operation of the Act – voluntary bodies – elements that characterise a voluntary body – constitution – objects of institution – membership

Discrimination Act 1991 (ACT)

Jones and The Scout Association of Australia, Australian Capital Territory Brach Inc & Ors [2007] ACTDT (11 January 2007)

Customs and Excise Commissioners v Bell Concord Educational Trust Ltd [1928] 2 WLR 679

Tribunal:           Mr B Stefaniak  Presidential Member

Date of Order:          7 May 2009

Date of Reasons
for Decision:              7 May 2009

AUSTRALIAN CAPITAL TERRITORY            )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 10 of 2008

BETWEEN:

KURT & PETER KLOSKA

Applicant

AND:

NATIONAL JEWISH ASSOCIATION

Respondent

Tribunal:           Mr B Stefaniak           , Presidential Member

Date of order:           7 May 2009

ORDER

That the Applicants’ complaint be dismissed.

…………………………...

Bill Stefaniak

Presidential Member

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 10 of 2008

BETWEEN:

KURT & PETER KLOSKA

Applicant

AND:

NATIONAL JEWISH ASSOCIATION

Respondent

EXTEMPORE REASONS FOR DECISION

Introduction

1. This matter relates to an event at the Jewish Food Fair on 6 April 2008.  The Food Fair has been held for a number of years and in 2008 it took place at the National Jewish Centre.  The strike-out application, which was heard on 2 April 2009, has been brought by the representatives of the National Jewish Centre, and I will come to what is required in relation to that shortly.

2. On 14 April 2008, Messrs Kurt and Peter Kloska wrote to Dr Helen Watchirs, the ACT Human Rights and Discrimination Commissioner, with the details of a discrimination complaint. On 15 October 2008 Dr Watchirs wrote to Messrs Kloska informing them that she had “decided to close [the] complaint as lacking in substance” and gave detailed reasons for that decision. On 19 November 2008 Messrs Kloska requested that the complaint be referred to the…Tribunal. Subsequently, on 24 November 2008, all correspondence and material that was before Dr Watchirs was forwarded to the Tribunal for the matter to be set down for public hearing.

3. In terms of the facts before the Tribunal I think it is important to go through a statement by Kurt and Peter Kloska, and relevant parts of a statement by Anita Shroot.  I will then go through some additional evidence that was brought before the Tribunal on 2 April.

4. As was conceded by Mr David Knoll, counsel for the National Jewish Centre, on a strike-out application the case of the complainant has to be taken at its highest. I thank Mr Knoll, who cannot be here today, for his very detailed submissions in relation to this which has been very helpful and no doubt helpful to all parties concerned. But certainly the Tribunal has to take the evidence of the Kloska brothers at its highest in considering whether their complaint should be dismissed.

The Facts

5. Firstly, a statement by Kurt and Peter Kloska, undated but stamped 30 January 2009. This was largely corroborated by statements made by Mr Kurt Kloska in court when we were here on the last occasion. The statement reads:

We attended the Jewish Food Fair on 6 April 2008.  The Jewish Food Fair took place at the National Jewish Centre. 

Upon arriving at the National Jewish Centre we purchased $20 of food vouchers, and proceeded to purchase food from the various food stalls.  When we were eating our food, two security guards approached us and proceeded to interrogate us. The security guards were wearing khaki shirts with a security company name on the shirts.  They were also wearing sunglasses and had what appeared to be communication ear pieces. They asked us for our names, our occupation, how we found out about the food fair and why we came.  The security guards asked us whether we were Jewish, do we have Jewish friends and do we know people in the Jewish community.  To these questions we answered no.  The security guards had not singled out or questioned anyone else at the food fair. The interrogation by the security guards was felt by us to be both harassing and also embarrassing. At our previous attendance at the Jewish Food Fair we had not been questioned.  During their interrogation the security guards did not inform us that the food fair was only for Jewish people.  The security guards kept us under constant surveillance whilst we were at the food fair.  We found this behaviour intimidating.

Following our interrogation by the security guards we purchased another $20 of food vouchers.  After enjoying some more food we looked through the ‘White Elephant’ stall.  Next, we waited in line for coffee and cake.  Just when we got our coffee and cake a security guard told us to leave the grounds. This shocked us as we did not know what we had done.  Two AFP officers were with the security guard. When we asked the AFP officers what the reason was for us to leave, we were told that we had been asked to leave an enclosed area.  At no stage while we were at the Jewish Food Fair were we told that the area was an enclosed area. Being told to leave the food fair came as a complete shock to us, as we were not behaving in a disruptive or disrespectful manner.

When told to leave the food fair we rushed to the main gate, spilling hot coffee as we walked.  We walked approximately 200m to have our coffee and cake.  A security guard was observing us until we drove away.  The experience of being forcefully [sic] ejected from the Jewish Food Fair was extremely traumatic, humiliating and embarrassing for us. We have never been told by the police to leave an area ever! We had attended the Jewish Food Fair on two previous occasions and had not been told to leave. We feel that the National Jewish Centre have discriminated against us based on us not being Jewish and have not given a valid reason for us to leave. In relation to the jurisdiction of the Tribunal under the Human Rights Commission Act 2005, where the Commission closes a complaint, the complainant has the right to require the Commission to refer the complaint to the Discrimination Tribunal. We have decided to exercise our right.

6. Now I probably need to say here that that is a consistent statement with the evidence given by Kurt Kloska on behalf of him and his brother when we last dealt with this matter in April, save for one issue which, again, probably not a huge amount turns on. In the statement it says “the security guards asked us whether we were Jewish, do we have Jewish friends, and do we know people in the Jewish community.  To these questions we answered no.” There is an inconsistency in that Kurt Kloska was quite at pains to point out that his mother in fact had been treated by Dr Shroot, Anita Shroot’s husband, who clearly was Jewish. Although there was no evidence that Mr Kloska had actually met the doctor, I think one can draw the implication that he would have known people in the Jewish community.  But whilst there is an inconsistency there I would imagine he still could have quite easily answered “no” when asked by security guards on the day, perhaps not thinking. I do not think that discrepancy is a particularly relevant one for the purpose of these proceedings but I simply do make that point in relation to the matter but it is not something that I regard as being hugely significant in the circumstances.

7. Dr Anita Shroot, who was the President of the ACT Jewish Community Inc (ACTJCI) as of 6 April 2008, made a statement as well.  She also gave evidence during the hearing, adhered to her statement, said it was true and correct and was asked a number of questions in cross‑examination by Mr Kurt Kloska (and quite effective and skilful cross‑examination it was indeed and I commend him for that).  So she certainly was tested, but fundamentally she did not depart in any substantive way from her statement. There are a couple of things I will indicate, after I read her statement, which probably add to it.

8. I am not going to read the whole statement.  I will start at paragraph 10, which states:

On 6 April 2008 the Community held a Jewish Food Fair at its premises.  In addition to the food stalls, we also organised an exhibition of Judaism and Australian Jewish history, a trash and treasure stall and games for children, including face painting and a jumping castle.  The Food Fair was advertised in various local newspapers and was open to the public.  Approximately 2,000 people attended the Food Fair.  We utilise many volunteers to help run the Food Fair.

1. I should stop and pause to insert here a point she made at another stage to the Discrimination Commissioner, that there are some 300 to 600 Canberrans of Jewish faith and there were 2,000 people attending the food fair.  That point was made to indicate that it was open to the public and all denominations.  I now continue with her statement from paragraph 11:

The Community has in the past been the target of harassment and vandalism.  Also, the Australian Jewish community is experiencing the highest level of anti-Semitic incidents in Australian history, as evidenced by the most recent Executive Council of Australian Jewry Anti-Semitism Report.  A copy of this report can be made available to the Tribunal if requested. Therefore, the Community arranged for a number of members of the Community, all of whom are volunteers, to wear security badges and to monitor the crowds at the Food Fair to ensure that any inappropriate behaviour is identified and addressed promptly and courteously and, if necessary, by calling the Australian Federal Police to assist. As the Food Fair is our largest public outreach event we also asked the Sydney community for volunteers to help on the day and three young volunteers came from Sydney.  Their names were Avi Pollak, Keren, whose surname I cannot recall, and Tali Ezekiel. The Australian Federal Police also made regular rounds of the Food Fair.

12. As far as I can recollect, at about 1 pm, I was approached by a male member of the Community, Avi Solomon, whose job of the day of the Food Fair was to man the door which provided access to the offices and the extra supplies needed for the Food Fair and to direct the public to the exhibition on Judaism and Jewish Australian history nearby. Avi and I had a conversation to the following effect:

He said:Jerzy is looking for you outside. Can you please come and speak with him?

I said:       Okay.

I went with Avi to talk to Jerzy Jagiello, another member of the Community whose job on the day of the Food Fair was leader of a team of volunteers to make sure the queues at the Food Fair were orderly, to direct the public to the various stalls at the Food Fair and to ensure the overall orderly and safe conduct of the Food Fair.  Jerzy said to me words to the following effect:

He said:One of my volunteers has a concern about a couple of men who have arrived.

He then took me over to where Avi Pollak was standing. I had a conversation with Avi to the following effect:

He said:A member of the public has pointed out two men and told me that these two guys had been neighbours of hers and used to harass her. She was very concerned and wanted to know why they are here.

I said:       Do they seem to be causing a disturbance?
He said:     No.

I said:Well, we can’t really do anything at this stage.  Just keep an eye on them.

13. About half an hour later Jerzy and Avi Pollack came to talk to me as I worked at a stall.  They both seemed very agitated.  We had a conversation to the following effect:

Avi said:Those men are still here.  They’re the guys over there in the chequered shirts.  The woman is really upset about them.  She says they’re neo‑Nazis.  I’m worried about their behaviour.

I said:       Who is this woman?  Can I talk to her?
Avi said:    We’ll find her.

Jerzy and Avi went off to find the woman. 

14. Some time later, Jerzy and Avi came back to me and appeared even more agitated.  I had a conversation with one or both of them, I can’t remember which, to the following effect: 

Jerzy or Avi said: “I can’t find the woman who spoke with us.  She must have gone home.  The men are going inside the Centre and I’m really concerned about them causing trouble.  They have upset other patrons.” 

I said: “If you think they’re a threat and you feel it’s absolutely necessary, then ask them to leave but let the AFP know and make sure the AFP attend.” 

During this conversation Avi and Jerzy both appeared very worried about the safety of patrons at the food fair and concerned to avoid an incident involving the men. 

15. In advising the volunteers that they should speak with the AFP and ask the men to leave, my main consideration was to avoid an incident occurring that would impact on the safety of those attending the Food Fair.  I also did not want unruly or disruptive behaviour disturbing people’s enjoyment of the Fair.

16. Later Jerzy told me that he had spoken with the AFP who were at the Food Fair and that the men had been asked to leave.  I do not know whether it was the AFP or one of the volunteers who spoke with the men. 

17. On 6 April 2008 I did not know anything of the religious convictions of the men.  I did not discuss this issue with any of the volunteers I spoke with about the men.  It was not something the volunteers spoke about, nor is it a question our volunteers were instructed to ask of patrons, particularly given that we invited and expected people of other faiths to come to the Food Fair.

18. One of the objects of the Community is to foster harmonious relationships with the community at large.  The Food Fair was held with that object in mind.  The Community actively encouraged members of the public to attend the Food Fair, regardless of their particular religious convictions or ethnicity. As the number of people of Jewish faith living in Canberra is only about 600 and there was approximately 2000 people at the Food Fair, I know that many of those attending were not Jewish, and to my knowledge, we did not ask the religious affiliations of anyone attending.

10.The other document of some relevance to this is the ACT Police report, dated 6 April 2008, which is included in these documents.  That states:

At about 2.15pm on Sun 6 April 2008 Police attended the National Jewish Memorial Centre on National Cct, Forrest.

Police spoke with [blanked out] who was an organiser of the Jewish Food Fair.  He stated that two males who appeared to be “Neo Nazis” had been asked to leave the premises.  The males left without incident. 

A third male was standing outside the entrance. 

Police spoke with this male who identified himself as [blanked out] who said he had attempted to get a falafel and had been asked to leave because of the t-shirt he was wearing.  Police informed him that it would be best if he left the area and not bother to try and enter the event again.

11. So the police report confirms that there was no incident.  The mention of a third male, who has not mentioned at any point in these proceedings, is not something that I really need to concern myself about whatsoever.

12. Now, the matter went before the Discrimination Commissioner and I think this is quite relevant in terms of the issue of discrimination under the Discrimination Act. I am not going to read the whole report again, I take up the Discrimination Commissioner’s report, for anyone who’s got it in front of them, at page 3

Provisions of the Discrimination Act

Discrimination is defined under section 8 of the Discrimination Act 1991 (the Act) which says in part:

For the purposes of this Act, a person discriminates against another person if –

a)   the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7;

Subsection 7(1)(i) of the Act makes it unlawful to discriminate on the grounds of religious or political conviction.

Subsection 7(2) states:

In this Act a reference to an attribute mentioned in subsection (1) includes –

a)   a characteristic that people with that attribute generally have; and

b)   a characteristic that people with that attribute are generally presumed to have; and

c)   such an attribute that a person is presumed to have; and

d)   such an attribute that the person had in the past but no longer has.

Discrimination in ‘access to premises’ is dealt with in section 19 of the Act and says in part:

Access to Premises

It is unlawful for a person to discriminate against another person –

a)   by refusing to allow the other person access to, or the use of, any premises (public premises) that the public or a section of the public is entitled or allowed to use or enter or use (whether for payment or not); or

b)   in the terms or conditions on which the discriminator is prepared to allow the other person access to, or the use of, public premises; or

c)   in relation to the provision of means of access to public premises; or

d)   by refusing to allow the other person the use of any facilities (public facilities) in public premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

e)   in the terms or conditions on which a discriminator is prepared to allow the other person the use the public facilities; or

f)   by requiring the other person to leave the public premises or cease to use such facilities.

13. The Commissioner went on to say:

I must now consider whether your allegations of discrimination come within the scope of the Act.

Application of the Act
To establish your complaint of unlawful discrimination you need to show that you were treated unfavourably at least in part because of your religious conviction.  It is not disputed that you are Catholic.  I therefore accept that you have an attribute of religious conviction under the Act.  You have not raised discrimination in your complaint on the grounds of political conviction, such as anti-Semitism or presumed Neo-Nazism.  I note that you regard accusations of holding such views as defamatory and offensive.

14.And again that was made plain by the Kloska brothers in evidence last month.  The Commissioner goes on:

There is no dispute that your complaint allegations arise in an area of public life that is covered by the Act given that you were seeking to remain at premises, which the public are entitled to use, that is, to attend the Food Fair held at the National Jewish Centre on 6 April 2008.  I accept your information about advertisements for the event being open to the public. To make out your discrimination complaint, you only need to show that you were treated unfavourably at least in part because of your religious conviction. 

I am satisfied that the ACTJCI was hosting the Food Fair at the National Jewish Centre on 6 April 2008 and that you were asked to leave this venue, which the public were entitled to use, thus your allegations appear to arise in relation to premises within the requirement of s19 of the Act.

15. I agree with the Commissioner. She continued:

To establish that the ACTJCI discriminated against you because of your religious conviction I would need to be satisfied that you were asked to leave the premises because of your religious conviction, that is, because you were Catholic. There is no probative information I have received to support this allegation.

You tell me in your complaint that the ACTJCI has “discriminated against [you] based on [you] not being Jewish.” You further tell me that “the Jewish guards asked [you] whether [you were] Jewish, do [you] have Jewish friends and do [you] know people in the Jewish Community.”  In its response to your complaint ACTJCI tell me it is “unable to say as to whether the alleged conversations as to whether [you] were of the Jewish religion occurred, but it seems unlikely. …Nobody would have cared what religion any of the attendees were. [You] were asked to leave, by officers of the Australian Federal Police, because [you] were acting in a manner inconsistent with allowing all patrons to enjoy the afternoon.” Specifically ACTJCI assert that the reason you were asked to leave was because you “commenced behaving in an unruly and disruptive manner in refreshment queues, and upset other patrons.” In your letter which we received on 8 July 2008 you “deny that [you] behaved in a (sic) unruly manner and disruptive manner…and upset other patrons.” You further state that you “were at the food fair for almost two hours before being told to leave by a security guard. The AFP did not ask you to leave”. [You] were not given a valid reason for being told to leave.” In your complaint form you informed me “Just when [you] got [your] coffee and cake a security guard told [you] to leave the grounds.  This shocked [you] as [you] did not know what [you] had done.  Two AFP officers were with the security guard.  When [you] asked the AFP officers what the reason was for [you] to leave [you] were told that [you] were being asked to leave an enclosed area.” ACTJCI inform me in its letter received on 4 August 2008 that “Given that there are over 2000 people present at the event…and there are only some 300 to 600 Jewish persons resident in Canberra, it is clear that there were a large number of non-Jewish persons present who were not asked to leave.” 

In situations where I have before me two different versions of events it is my usual practice to consider any other corroborating information, which might enable me to prefer one person’s version to another’s.  In response to my letter dated 27 June 2008 requesting the AFP to provide a copy of the report pertaining to an incident involving you at the National Jewish Centre on 6 April 2008, the AFP provided the report received on 14 July 2008. Although I note in your letter received on 21 July 2008 that you state that “the AFP report does not relate to the AFP officers who were present when [you] were told to leave the Jewish Food Fair”. Because the report was made in response to my specific request outlined above, I accept that it is a report made in relation to the incident you allege. The AFP report supports the view that ACTJCI was concerned about your behaviour.  Specifically it states that the AFP was requested to attend the National Jewish Centre because it wished “police to be present whilst two suspected Neo-Nazis are asked to leave the function there.  [It] believes that if police are not present they will upset the dignitaries present.” The report further states that “the males left without incident.” You tell me in your letter received on 21 July 2008 that you “find the comments that [you were] suspected or appeared to be Neo-Nazis extremely defamatory and offensive.”

16.I say at this point I think there was another report which the Commissioner quotes which I think is also in the papers and which does say exactly what she has quoted there. Dr Watchirs concluded her reasons with:

Conclusion
Although I accept that being able to leave the Food Fair by ACT JCI has caused you a detriment that may amount to unfavourable treatment under the Act, that is, distress, humiliation and embarrassment, the information before the Commission, particularly the police involvement in the incident, suggests that ACTJCI’s decision to request you to leave arose out of concern about your behaviour and its potential effect on other patrons. This appears to be linked to the decision to monitor your attendance on the basis of presumed political conviction, rather that because of your religious conviction.  I conclude that ACTJCI’s treatment of you does not appear to raise issues of discrimination on the grounds of religious conviction.  I must therefore close it as lacking in substance.

17. Dr Watchirs then goes on to say that it can be referred to the Discrimination Tribunal, which is exactly what you gentlemen have done. 

18. In the case before me, as I said earlier, learned counsel for the National Jewish Association indicated that it is the duty of the Tribunal to take your case at its highest, which I do.  The Commissioner was going through a lot of evidence and probably has a slightly different situation there before her where she has to sift through evidence.  It is more, probably, of a substantive hearing than this one is.

19. So I have nothing before me, apart from these documents which I suppose amount to hearsay because there are no statutory declarations and Dr Anita Shroot did not actually have any conversations with you. To put it in laymen’s terms, these documents going towards what representatives of the ACT National Jewish Association are actually saying occurred at the fair are a type of secondary evidence.

20. You left without complaint when the police were there.  They indicated that they were told that you were neo-Nazis.  You have strenuously denied that all the way through and so I have to give your evidence its highest due and that is the way that I approach this matter in relation to the complaint.

21. The Commissioner, however, in going through the Discrimination Act, has indicated (and you, yourself, I think Mr Kurt Kloska adhere to this when you said you had to just tick a box), you believed it was a religious conviction and I have listened to the tape, in fact at 12.06 and 53 seconds you stated you believed you were thrown out basically because it was a religious conviction because, “We were not given any other further evidence by the volunteers that told us to leave as to what the reasoning was behind it so we had to draw our own conclusions of what possibly - why we were thrown out.”

22. It seems that when you were thrown out it was sometime after you say you were asked by the security people there, ‘whether you were Jewish, did you have any Jewish friends, did you know any Jewish people?’.  Again I have to accept that evidence.  It would seem from the documentation that the Association might deny and suggest that did not occur but I have to take your evidence at its highest and so I have to accept that indeed you were asked those questions.

23. But you were asked those questions, as you said, about 20 or 30 minutes after your arrival at the Food Fair.  It is quite clear that you were there for some time after that.  So at the end of the day, on what I actually have before me, I really do not have anything definitive as to why you were thrown out.  There is certainly a gap between when you were asked whether you were Jewish or not and when you were asked to leave, so whether I can actually find that that was the reason or not, even giving your evidence its highest weight, is problematic.

24. Your evidence says, and I accept, that you basically had to tick the box about being Catholic.  You yourselves have said there was no mention ever made of you being Catholic or any other specific religion.  It was only because you were asked questions about whether you were Jewish, and I must say it does seem strange that some period of time, a significant lapse of time after you were asked those questions that you were finally asked to leave. I do not have any evidence I can use in this proceeding to actually indicate as to why you were thrown out because no one has appeared in terms of statutory declarations or other statements as to any exact conversations with you or described exactly what they saw you doing. It is all second or third hand and that does cause a problem in relation to that.

25. In terms of you being discriminated against on religious grounds, and it is because you have to hold that belief and that religious belief that you have been discriminated against, I think you certainly do have a problem in relation to that as expressed by the Discrimination Commissioner and indeed just on the evidence here.

26. So even putting it at its highest on the one hand we have your allegation that you assume you were asked to leave because you were not Jewish, on the other hand we have clear evidence of 2000 people there, only 600 members of the Jewish community in Canberra and other possibilities but nothing which, again, is terribly strong there.  So there is really perhaps an assumption on your part that that is why you were thrown out and it is not really borne up by anything nor is there any other clear evidence before me which I can use in the proceedings as to exactly why you were thrown out.

27. That lends me to believe that you may well have some action were you to pursue it in some other area of the law, but probably not under the Discrimination Act because the Discrimination Act, as the Commissioner has stated, it is quite clear and especially section 7 which does state that this Act applies to discrimination on the ground of any of the following activities and one of those activities is religious or political conviction and that is your religious or political conviction. At the most it would be, on this basis, that you are non-Jewish. You have the religious conviction of not being Jewish which is a little bit tenuous.

28. So I think you do have significant problems there. Whether this makes it a frivolous complaint or not is perhaps another issue. There may be on that, if that was the only issue, just enough to have this complaint go further to a full hearing. But at the end of the day whilst I do think your complaint is tenuous on the Discrimination Act and putting at its highest what you are saying you - as I said earlier you may well have redress elsewhere but not under the Discrimination Act.

29. The Discrimination Act is somewhat restrictive and I come now to the second leg of the Discrimination Act which for the Kloska brothers is indeed a real problem, and that is the argument, very capably put by Mr David Knoll, the counsel for the National Jewish Association, that the Discrimination Act does not apply to associations, to voluntary bodies.

30. Voluntary bodies. Section 31 of the Act, states that part 3 does not make it unlawful for a voluntary body to discriminate against a person in relation to the admission of people as members of the body or the provision of benefits, facilities or service to people whether the people are members of the body or otherwise, and clearly I think it is clear that you were getting benefits of some services and facilities, the facilities of the National Jewish Association, the benefits of the fete and food there and you were evicted.

31. And in terms of the Discrimination Act, even were I to find that you clearly had been discriminated against say on the grounds of religious belief, let us say if they had actually asked you your religion, you said “Catholic” and then you had been thrown out which would have probably given a bit more weight to it, even then you would I think fail because of the law as it is.

32. It is interesting, and I make this further comment, and I am going to quite a capable submission again Mr Kurt Kloska made on the last occasion in relation to voluntary bodies, that when the Discrimination Act was introduced there was an indication that voluntary bodies were something that might have been picked up later. It is now 18½ years since the Act was introduced and nothing has changed and I now read part of the Hansard of 17 October 1991 which was the introductory speech by Chief Minister Rosemary Follett at the time when she introduced the Human Rights and Equal Opportunity Bill. On page 3891 of the Assembly transcript of 17 October 1991, from the Hansard, the then Chief Minister stated:

Equal opportunity legislation is always a matter of balancing rights and Part 4 of the bill, which deals with exceptions to unlawful discrimination, provides that balance.  Some of the areas that are exempted from the operation of the bill are employment, the provision of accommodation in the domestic sphere, voluntary and religious bodies and institutions, clubs for members of one sex or one particular race, competitive sporting events for one sex or people with particular impairments and the situation in which being of a particular race or sex or having a particular impairment is genuinely necessary to do a particular job.  A good example of this is where the job is in the welfare area, a rape crisis centre for example, and the job can be done most effectively by someone of the same sex as the clients. 

The bill also contains a limited exemption for acts done under laws of the ACT.  This exemption is intended to be only temporary and it will cease to have effect once we have completed a review of ACT laws to ensure that they are consistent with the terms of the legislation.  In relation to the general exemptions covering educational institutions established for religious purposes, voluntary bodies, sport and acts done under statutory authority, the Commonwealth Human Rights and Equal Opportunity Commission is currently conducting a review of similar exemptions in the Federal Sex Discrimination Act.  We will of course be examining our own exemptions in the light of the results of that review when they become available.

33. Now, I do not recall the Legislative Assembly making any amendments since then. Whilst this may have been a temporary measure and those other areas such as voluntary bodies were intended to be covered, for whatever reason, that has not occurred.

34. Whether that is an oversight that nothing has occurred or whether it is quite deliberate, I simply do not know but clearly no one in the Legislative Assembly has sought to amend section 31 to actually ensure that voluntary bodies are actually included in the case of areas where discrimination can actually occur. They are still exempt.

35. We now come to the argument as to whether in fact this is a voluntary body.  Mr Knoll was at great pains to insist that it was and provided a number of cases to indicate that.  I must say I think he is right, and there is a case in relation to another voluntary body which has very similar characteristics to the ACT Jewish Community Incorporated.

36. The constitution of the ACT Jewish Community Incorporated indicates amongst its objects, “The community is to provide support, maintain synagogues according to the practice of Judaism, conduct religious services in accordance with such practices”.  It stipulates things like:

Promoting Jewish youth activity; support Jewish causes in Australia; stimulate philanthropy through all forms of communal welfare; foster harmonious relationships with the Australian worldwide Jewish community and the community at large; honour the memory of Australian and other Jews who died in wars and for their faith; do all such other things that are incidental or conducive to the attainment of the objects of this constitution for the promotion of the social, cultural and religious welfare of Jewish persons in the Australian Capital Territory.

37. It does not say anything in its objects in terms of being, basically, a money‑making proposition or running a business as such.  Anything that would actually take it out of being a voluntary body as defined in the Act. 

38. It is further backed up in this constitution when you look at membership.  Membership actually indicates in (a), (b) and (c) that members are expected to be ordinary members and members of the Jewish community, members who are Jews.

39. There is a category of associate membership, “(d) any non-Jewish person who has attained the age 18 years and has a bone fide reason”.  An associate member shall not have voting rights under the constitution or the right to stand for office or the board of management, or as a returning officer or a deputy returning officer and they will pay subscriptions as levied pursuant to the constitution and by-laws. 

40. So there is a provision for associate membership and again this falls into line with a body where clearly it is a body where ordinary members are Jews, it is like some bodies which I think the then Chief Minister alluded to in terms of a situation where a particular race or sex, it is necessary to have a certain - what you might call discrimination but clearly they are specific bodies and clearly this is one of those bodies.  But that in itself is a minor point.   It deals with associated membership. 

41. The objects of the organisation are clearly those of a voluntary body, there is nothing in here in relation to running a business as such, which would fall out of it being a voluntary body.  There is another part here which I think it quite relevant, “Dissolution of the Community”, again a clause which is very common to the voluntary bodies, “This community may be wound up or dissolved at a special general meeting” this is clause 11 of their constitution:

…called solely for the purpose in accordance with the provisions of this constitution.  The vote required for such a decision shall be a three-quarter majority of all the financial members of the community.  The property of the community will be disposed of in accordance with the law of the ACT relating to incorporated associations.  In the event of dissolution of the community, the funds realised upon such dissolution shall be, where possible, applied to Australian organisations with aims as near as possible to those of the community.

Again, indicative of a voluntary body. 

42. There is a case directly in point which has been provided in the papers.  It is in fact a case of this Tribunal and that is the case of Guy Jones v Scout Association of Australia.  Again a case directly in point in terms of someone who was alleging discrimination and the defence to that was “Well, the Scouts are indeed a voluntary body” and it was a strike-out application as well.  And Mr Lalor, Magistrate Lalor, who dealt with that as Deputy President on 11 January 2007 said:

Ordinarily the Tribunal would be reluctant to entertain an application to strike-out an application referred to it where that necessitates the hearing of the complainant’s evidence to determine the veracity of the allegations.  This is particularly so where the allegation is that the original application lacks substance.  This application is not such a case and it appears to be appropriate and expedient to consider the merit of it as if Scouts is found to be a body exempt from the operation of the Act as being a voluntary body the inquiry will not proceed to hear it on its merits and the complaint will be dismissed.

In so deciding this application, there will be no necessity to make any finding of fact as alleged in the original application referred to by the Tribunal.

43. The learned Magistrate then deals with a number of laws.  He delves into the Scout’s charter and their association, and again, the Scouts, very similar to the ACT National Jewish Association, they do raise money, they have a balance sheet, they have it audited, they get money from beneficiaries but clearly they are a voluntary body.  As with the National Jewish Association, people there act in an honorary capacity.

44. It is interesting when one looks at the constitution of the Jewish Association, very similar to the Scouts, where they have honorary life members, honorary members, they have an honorary treasurer and an honorary secretary.  They do not have paid officials as such as you would have in another type of body which is more commercial than a voluntary body.  So, again, the Scouts, a very, very similar situation to this one and Magistrate Lalor basically on that basis threw the matter out because effectively there is no jurisdiction in the Tribunal to actually deal with it.

45. There are some interesting comments I make because Mr Kurt Kloska, very capably in his submissions last time, indicated that “Hey look, these guys make a profit.  They sell things, they make money”.  Indeed, the Scouts did that too as I said. 

46. A case considered by Magistrate Lalor in the Scout case of 2007 was the case of Customs and Excise Commissioners v Bell Concord Educational Trust Limited (1989) 2 WLR at 679. And Lord Denning was cited in another case there, National Deposit Friendly Society Trustees v Skegness Urban District Council (1959) AC 293 at 319 where he said:

The fact that the society has made profits does not mean that it is conducted for profit, which I take to mean conducted for the purpose of making profit.  Many charitable bodies such as colleges and religious foundations have large funds which they invest in interest in stocks and shares or purchase land which they let at a profit, yet they are not established or conducted for profit.  The reason is that because their objects are to advance education or religion as the case may be, the investing of funds is not one of their objects properly so-called but only a means of achieving those objects.

47. So here it seems to me that if the making of a profit is not one of the main objects of an organisation, but is only a subsidiary object, that is to say if it is only a means whereby its main objects can be further achieved, then it is not established or conducted for profit.  The Tribunal in the HCF matter went on to say:

…considered being engaged in business is not inconsistent with it being carried on otherwise for profit” as stated at paragraph 108 there, but in our view the term “carried on otherwise than for profit” does not identify a body by reference to 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 cause a profit and surplus and a loss, a deficit, the question is what is its character? Does it have the character of a relatively small volunteer body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest?

The exception provided for in section 57 in that particular case is in our view directed toward such bodies and it is bodies with that character that are identified by the term “carried on otherwise than for profit.

48. Clearly, the case Magistrate Lalor was dealing with and the cases he cites fall very much within the scope of this particular matter and accordingly, counsel again for the Association made a point, that whilst there’s nothing frivolous or vexatious in the Kloska brothers bringing this application it is arguable that by the very nature of an application which simply can’t get anywhere because it falls outside the Act, that in itself is frivolous. Again, that may well be so, but at the end of the day, clearly, there is an exemption here in the Discrimination Act for voluntary bodies.

49. This organisation, the ACT Jewish Community Incorporated, falls absolutely clearly within that category and, as I indicated, whilst it appears there was an intention to include voluntary bodies on 17 October 1991 it has not happened and that is something the legislature might want to look at.  As I indicated earlier, the legislature might have good reasons for that not occurring.  I simply don’t know and it is not something that I can recall being discussed for the fairly lengthy period of time I actually spent in that legislature in another life.

50. So it is there in the Act, it is there in the current Act as at 2 February 2009 which is I think about the most dated-up version anyone has and squarely that means that the case brought by Kurt and Peter Kloska cannot succeed on that grounds and on that basis I uphold the application for a strike-out.

51. Now it is also normal, sometimes, for people to actually ask for costs on the case of a strike-out where it is – it has been - clearly is frivolous and vexatious. The ACAT Act actually makes costs a fairly rare event (section 48 and 49 of the Act). On what I have before me, as I said earlier, and I have to give the Kloskas their case at their highest, there is nothing in the evidence before me apart from hearsay to indicate what the problems actually were and there’s no clear evidence as to what disruption it is alleged they were causing.

52. There is no evidence of anything they were wearing. There is no evidence, for example, of an offensive t-shirt.  There is mention in the police report of a third person, who certainly is not here, being evicted or not allowed in because of an offensive t-shirt, but there is no evidence of anything these guys were wearing to indicate anything offensive there.  It is not like they have suddenly donned swastikas on their left or right arms or whatever and there is nothing to indicate that they were dressed any other way than just anyone else there.

53. There is this hearsay evidence as to something happening there.  There is their evidence that they were asked if they were Jewish.  There is nothing more.  It is a mystery.  So there is nothing before me which would indicate that they were necessarily being vexatious or frivolous in bringing this complaint which would perhaps lead to an order for costs there.

54. It is something, and I mention this, I am a little concerned that there is not more information forthcoming from the organisers of the ACT National Jewish Association.  It is unfortunate perhaps that Dr Shroot did not talk to these people.  It is unfortunate that the mysterious woman who was referred to did not give evidence.  It is put on the basis she was scared, a neighbour, frightened.  I have got nothing to back that up.  I merely say that if that was the case, this is Australia, people are protected.  Australians generally do not like extremists of any variety.

55. I think the court would take a very strong view if there were any instances or if anyone was caught for anti-racial vilification, causing damage to a particular religious institution and some of the very proper concerns the Australian Jewish Community has expressed and the document referred to, Attacks on Australian Jewry, was made available - is available to the Tribunal.  And I am aware of that document and indeed attacks on people because of their Jewish religion or any other religion is absolutely heinous.  What happened indeed to members of the Jewish faith in World War II is absolutely reprehensible and what I think is one of the darkest annals of history.

56. So I think people, all right-thinking people in Australia, take an incredibly strong view that such anti-Semitism is something to be abhorred and certainly I do and had there been further evidence here that there was something more to this that just what is before me, that would be a further reason to just knock this out as being totally frivolous and vexatious on those grounds alone.  

57. And indeed was there anything to actually indicate that these men were neo-Nazis I think absolutely the Association would have been quite right in throwing them out.  It would have been an abomination indeed that they were there and that would certainly be the end of it and if there was any inkling of that I would have absolutely no hesitation in giving costs.  But both these men vehemently deny that fact.  Vehemently deny the fact that they had anything to do with any such ground and were at pains to state in fact that their mother indeed was attended by Dr Shroot. 

58. So I just do not have any evidence in relation to that.  Were there to be any further evidence.  Were there to be any further evidence, that would have helped and I am a little bit concerned and disappointed that the ACT Jewish Community Incorporated didn’t add additional information which might have assisted the Tribunal even at this early stage.

59. It may be that might have been forthcoming if the matter had got past first base, but it has not.  And I do make that point that that additional information may have been helpful and indeed I think it is important people are aware of acts of extreme bias and prejudice against other people simply because of their religious or political beliefs which amount to violence or intimidating behaviour, that those acts are highlighted and brought before appropriate bodies and brought out the in the community and people speak out.  Because if people do not speak out about such acts then we do not really advance as a civilised society and steps can not be taken to come down severely on people who engage in violent anti‑discriminatory acts against people purely because of their religion and I think out of all religions the Jewish religion has suffered more than most, certainly more than anyone else in the last 100 years because of the abomination of the Holocaust where 6 million Jews were murdered.  So I do make that point. 

60. So what we have here though in summary is effectively; s31 of the Discrimination Act states this is a voluntary body and it just makes it impossible for the voluntary body to be effectively covered by the Discrimination Act. I also do make the point, as I said, I think, you know, the case is very much, even at its highest, very light on in terms of alleged discrimination as well and there is a big gap where I am simply probably left in the situation of even on just accepting on what the Kloska brothers say on the balance of probabilities I simply do not know why they were thrown out and clearly, I think, using the Discrimination Act even if it did apply to voluntary bodies, would not be the right Act.

61. If what the Kloska brothers tell me is absolutely spot on and they are still aggrieved they may well have other avenues in relation to legal remedies for what occurred in this case.  I just leave that with them because they alone would know what actually - what occurred if there is anything that I am not being told here and it certainly seems that there is a lot of information which is simply not before the Tribunal in relation to this case.

62. But I do make that point because I have to take their case at its absolute highest.  So the decision of the Tribunal will be the application to strike‑out the matter will be granted for the reasons I have given. 

…………………………….…

Bill Stefaniak

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      DT 08/10

APPLICANT:                KURT & PETER KLOSKA
RESPONDENT:            NATIONAL JEWISH CENTRE

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      Mr David D KNOLL

SOLICITORS:  APPLICANT:  

RESPONDENT:      Meyer Vandenberg Lawyers

OTHER:  APPLICANT:          Kurt & Peter Kloska

RESPONDENT:      

TRIBUNAL MEMBERS:MR B STEFANIAK              Presidential Member

DATE OF HEARING:   2 APRIL 2009   PLACE: CANBERRA

DATE OF DECISION:  7 MAY 2009     PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: