Kovac v The Australian Croatian Club Ltd
[2014] ACAT 41
•4 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KOVAC v THE AUSTRALIAN CROATIAN CLUB LIMITED
(Discrimination) [2014] ACAT 41
DT 12/10
Catchwords: DISCRIMINATION – unfavourable treatment because of political conviction – whether board’s decision to reject applicant’s application for membership of a club amounted to unfavourable treatment – whether unfavourable treatment was because of applicant’s political conviction or belief – meaning of ‘political’ – belief that bears on government or that involves the processes, policies or obligations of government – causal link between unfavourable treatment and applicant’s attribute – test for causation: real, genuine or true reason for decision – whether applicant’s political conviction was, either alone, or in combination with other reasons, a real, genuine and not insubstantial reason for unfavourable treatment – drawing inferences – standard of proof: Briginshaw standard – section 140 Evidence Act 2011 – whether Facebook posts demonstrate applicant’s political conviction – whether applicant’s conviction in relation to portraits, slogans, symbols and emblems is political in nature – whether board knew about and considered applicant’s political conviction – detriment to applicant
Legislation:ACT Civil and Administrative Tribunal Act 2008, s 8
Discrimination Act 1991, ss 4A, 7, 8 and 22
Evidence Act 2011, s 140
Human Rights Commission Act 2005, s 53E
Liquor Act 2010, s 20
Cases:Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
Bell & De Castella and Rob De Castella’s Smartstart For Kids Limited [2013] ACAT 27
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Burns v Laws [2008] NSWADTAP 32
Cairns Regional Council v Carey [2012] QCATA 150
CPS Management v The President and Members of the Equal Opportunity Board [1991] 2 VR 107
Dutt v Central Coast Area Health Service [2002] NSWADT 133De Domenico v Marshall (1999) FCA 1305
Department of Health v Arumugam [1988] VR 319
Harrison & Commissioner for Social Housing in the ACT and Minister for Community Services and Minister for Aboriginal and Torres Strait Islander [2012] ACAT 10
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Knight v CORE [2002] VCAT 731
Kwesius and ACT Health [2008] ACTDT 3Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805
Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44
Nester v ACT Fire Brigade [2004] ACTDT 2Nicholls and Nicholls v Director General, Department of Education and Training (No.2) [2009] NSWADTAP 20
Purvis v New South Wales (2003) 217 CLR 92Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537
Ralph M Lee Pty Ltd v Fort (1991) EOC 92-357
Sharma v Legal Aid (Qld) [2002] FCAFC 196State of Victoria v Macedonian Teachers’ Association of Victoria (1999) 91 FCR 47
Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1
Texts/Papers: Rees, N; Rice, S; and Allen, D, Australian Anti-Discrimination Law (2nd edition, 2014) (Federation Press)
Ronalds, C and Raper, E, Discrimination Law and Practice (4th edition, 2012) (Federation Press)
L De Plevitz, ‘The Briginshaw ‘Standard of Proof’ in Anti‑Discrimination Law: Pointing with a Wavering Finger’ (2003) 27 Melbourne University Law Review 308
Tribunal: Professor P. Spender – Presidential Member
Date of Orders: 4 July 2014
Date of Reasons for Decision: 4 July 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL DT 12/10
BETWEEN:
DANIJEL KOVAC
Applicant
AND:
THE AUSTRALIAN CROATIAN CLUB LIMITED
Respondent
TRIBUNAL: Professor P. Spender – Presidential Member
DATE:4 July 2014
ORDER
The Tribunal Finds that:
1. The respondent (the Club) has discriminated against the applicant by treating the applicant unfavourably by depriving him of membership of the Club, failing to accept the applicant’s application for voting membership of the Club or by affording onerous terms and conditions upon the application for membership because of the applicant’s political conviction, in contravention of Part 3 of the Discrimination Act 1991.
2. As a consequence of the finding in paragraph 1, the Tribunal is satisfied that the respondent has engaged in acts that are unlawful under the Discrimination Act 1991.
The Tribunal Orders that:
1.The matter is to be listed for further directions on a date to be advised by the Tribunal to consider the orders that the Tribunal must make pursuant to section 53E of the Human Rights Commission Act 2005.
………………………………..
Professor P. Spender
Presidential Member
REASONS FOR DECISION
The following reasons for decision explain why the Tribunal has found that the respondent discriminated against the applicant pursuant to sections 7, 8 and 22 of the Discrimination Act 1991 (the Discrimination Act or the Act) by treating the applicant unfavourably because of the applicant’s political conviction. As a consequence of this finding, the Tribunal has ordered that matter be listed for further directions to consider the orders that Tribunal must make pursuant to section 53E of the Human Rights Commission Act 2005 (Human Rights Commission Act).
Essentially, the Tribunal has concluded that the applicant had a political conviction pursuant to section 7 of the Discrimination Act and the respondent was aware of his political conviction. The respondent considered the applicant’s political conviction when it considered and refused his application for voting membership in December 2011. The respondent treated the applicant unfavourably under section 8 of the Discrimination Act by depriving him of membership and/or by refusing his application for voting membership and/or by imposing onerous terms or conditions upon future applications for membership which restricted the applicant to a social membership. One of the reasons for the applicant’s unfavourable treatment was because of his political conviction. This was unlawful pursuant to section 22(2) of the Discrimination Act.
In the reasons below, a reference to “ACAT” or “tribunal” refers to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the current member.
Background
The respondent, the Australian Croatia Club Limited (the Club), was established in 1969. The constitution of the Club provides that it is to be governed by a board.[1] In the Club documents, the board is sometimes referred to as a committee.
[1] Article 44 of the Articles of Association, applicant’s tender bundle at page 51
The applicant’s family have been very active members of the Croatian community since the 1960s.[2] The applicant attended Croatian ethnic schools from 1977 and has been involved in numerous Croatian summer schools in various localities. He was a member of a Croatian folkloric ensemble and other bands that were based in the Club for many years.[3] In 1986, whilst he was still at school, he was elected to the board of directors of the Club but stepped down during the course of his term due to school commitments and a lack of experience.[4]
[2] Witness Statement of Kovac dated 7 March 2012, applicant’s tender bundle at page 1
[3] Witness Statement of Leko dated 17 April 2013, applicant’s tender bundle at page 28
[4] Witness Statement of Kovac dated 7 March 2012, applicant’s tender bundle at page 1
In 1991 to 1995, during the war in Croatia, the applicant was a member of a music band that donated their services at various functions to assist with fundraising efforts within the Croatian community which were aimed at providing humanitarian relief to the citizens of Croatia. In 1997 he moved with his young family to Croatia but found some difficulty in providing for a young family in the difficult transitional economy of post-war Croatia and returned to Canberra in 2000.[5]
[5] Witness Statement of Leko dated 17 April 2013, applicant’s tender bundle at page 28
The applicant became involved with the Club again around the time that he returned from Croatia.
On 11 May 2007, the applicant renewed his voting membership of the Club for 2007.[6]
[6] Extract from Member’s Register, Attachment J to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent’s tender bundle at page 198
On 27 May 2007, at an Extraordinary General Meeting of the members of the Club, Mr Zdravko Tokic was elected as President of the board of the Club, and the applicant and Mladen Leko were elected unopposed as board members (the Tokic Board).[7] The previous incumbents of the board of the club at that time had been in office for around 7 to 8 years (1999-2007).[8] A subsequent business review (Business Review) conducted by the board showed that there had been a rapid decline in revenue from 2004.[9]
[7] EGM Meeting minutes of 27 May 2007, respondent’s tender bundle at page 1
[8] Witness Statement of Kovac dated 2012 applicant’s tender bundle at page 3
[9] The Australian Croatian Club Limited Business Review of 4 August 2008, applicant’s tender bundle at pages 15-18
On 29 May 2007, at a Tokic Board meeting, the applicant was elected Vice‑President and Mr Leko was elected Treasurer.[10] On 30 September 2007, the Club’s financial statements recorded a loss for the year ended 30 September 2007.[11]
[10] Board meeting minutes of 29 May 2007, respondent’s tender bundle at page 14
[11] Profit and Loss Statements, respondent’s tender bundle at page 119
On 18 January 2008, the applicant renewed his voting membership of the Club for 2008.[12]
[12] Receipt, Attachment K to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at page 198
Prior to 18 May 2008, the Tokic Board sent a notice to members about an Annual General Meeting (AGM). This notice included a proposed resolution 1 in the following terms:
THAT the pictures of Croatian heroes be removed from the main hall of the club and placed upstairs, in a private members area.[13]
[13] Notice of AGM, Attachment O to Further Witness Statement of Mrkonjic dated 14 May 2013, at page 68, respondent’s tender bundle at page 206
The resolution was accompanied by an Explanatory Statement which stated as follows:
Declining patronage from members has seen daily turnover plummet to unsustainable and loss-making levels that threaten the very existence of the club. ... [I]n order to make the Club and the main hall more inviting for the anticipated larger number of social members … it is essential to remove the assorted pictures from the main hall to put them in the proposed, upstairs private members area.
Unfortunately, Croatians in Australia have been ostracised and marginalised in mainstream Australian society for being right-wing extremists, and even as recently as April this year the Katarina Zrinksi restaurant at the Australian Croatian Association club in Footscray, Melbourne, made newspaper headlines for the wrong reasons. The Club was widely criticised for having on display pictures of Pavelic, Francetic, Boban and others, and Croatians were forced once again to defend themselves against allegations of being fascists and extremists. ...
Since the Republic of Croatia proclaimed independence in 1991 ... the chequers of the grb have become globally synonymous with the Croatian people. This is the one and only symbol that unites all Croatian, unlike the pictures of relative importance of historical and current leaders, a subject which is not just highly controversial, but is also very divisive within the community.
Under this resolution, it is proposed that the official grb of the Republic of Croatia is the only Croatian symbol displayed in the main hall, centred above the bar. ... The pictures of Croatian heroes will be put upstairs in the private members area.[14]
[14] Explanatory statement for the AGM of May 2008, applicant’s tender bundle at pages 113-116
The minutes of the meeting of 18 May 2008 record that the motion regarding the pictures was approved by the members at the AGM by a majority of 94 votes to 35. [15]
[15] AGM Meeting Minutes, Attachment O to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 77, respondent’s tender bundle at page 223
On or around 18 May 2008, the pictures were removed from the Club’s main hall and put into storage, pending completion of proposed renovations to the Club.
On 17 June 2008, after about 13 months as Vice-President, the applicant gave written notice of his resignation from this role.[16]
[16] Letter of Resignation, Attachment D to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 17, respondent’s tender bundle at page 163
The Business Review dated 4 August 2008 stated that whilst total expenditure had been reined in, “we still have significant issues with the revenue side of our business. ... [O]ur biggest single issue is the lack of patronage for members and guests on a daily basis, but also at our various functions”.[17]
[17] Applicant’s tender bundle at page 17
On 21 September 2008, an Extraordinary General Meeting (EGM) of members was held to discuss the viability and future of the Club. At that meeting the members of Tokic Board resigned from their positions and an interim board was established which included Mr Mrkonjic, Mr Dzaja, Mr Pecar, and Ms Lemic (the Interim Board).[18] During the course of the EGM, some members expressed their disappointment with the failure to display pictures of Croatian heroes and Croatian symbols within the club and a strong belief that this undermined patronage to the Club.[19] A show of hands was called from the floor and an “overwhelming majority voted in favour of the motion which clearly indicated the members’ desire for the pictures and symbols to be displayed”.[20] The minutes do not record who was in attendance at the EGM.
[18] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent’s tender bundle at pages 153-154
[19] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent’s tender bundle at page 154 ff
[20] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent’s tender bundle at page 154
However, at a meeting of the Interim Board on 23 September 2008 there was some consternation about the ‘show of hands’ vote that had occurred on 21 September 2008. Some of the members of the Interim Board, for example ‘TP’, expressed the view that the board needed to support the initial vote of the members in May 2008 to remove the items from the main hall. The minutes continue:
TP also mentioned that if you have historical items located in the Club that it should not be of a specific historical period. … AM [referring to Ante Mrkonjic] agreed that the entire Croatian history should be shown, not just a specific period in time. … AM stated that whether the pictures stay down or go up, members needed to be provided with [a] justification. … AM moved a motion that the pictures return to the main hall of the Club based on the non-fulfillment of the original resolution.[21]
[21] Respondent’s tender bundle at page 158
The motion was passed 6 to 3. One of the 3 members of the Interim Board who voted against the motion was TP.[22]
[22] Respondent’s tender bundle at page 158 at 7.25
The minutes continue:
TP stated that she did not believe the committee would have the majority of support from Members of the Club for this decision. The place for such a decision should be at a general meeting. … TP stated that this committee could not be judged for the ... [resolution that had just been passed] but we were putting ourselves in a position to be judged and criticized. AM stated that the club should seek support from members of the Croatian community, not political organisations. ... TP stated that she was uncomfortable being in the committee with such a decision, to the point [where] she was unsure of her position and involvement in the committee.[23]
[23] Respondent’s tender bundle at page 158-159
At the 23 September 2008 meeting of the Interim Board, Mr Mrkonjic was appointed interim President and Mr Dzaja was appointed interim Treasurer.[24]
[24] Attachment B to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 10, respondent’s tender bundle at pages 157-158
On 30 September 2008, the Club’s financial statements recorded a loss for the year ended 30 September 2008.[25]
[25] Profit and Loss Statements, respondent’s tender bundle at page 120
On 14 December 2008, the Club held its AGM for 2008. The Interim Board was re-elected for a further term and shall be hereafter referred to as the ‘Mrkonjic Board’ or ‘the Board’. A resolution was passed setting the Club’s end of financial year (30 September) as the renewal date for memberships.[26]
[26] Attachment C to Further Witness Statement of Mrkonjic dated 14 May 2013 at pages 15 and 16, respondent’s tender bundle at pages 161-162
In late 2008, Mr Mrkonjic found a number of photographs that were left behind in the bar at the Club. There were five photographs, selected from an unspecified number of photographs, and the applicant is in two of them. Two of the photographs show certain persons holding the Republic of Croatia flag in one hand and the Nazi flag in the other hand. The photographs were said to have originated from a holiday that the applicant went on in 2007 with the relevant persons, who were known to him. The applicant was not in either of the photos displaying the Nazi flag, nor was he the owner of the camera that took the photographs.[27] Mr Mrkonjic did not speak to the applicant about the photographs (although he did speak to a relevant member of the club who was photographed with the Nazi flags) and locked the photographs in a safe.[28]
[27] Transcript, 28 May 2013, at pages 137-139
[28] Transcript, 28 May 2013, at pages 133-134
On 17 April 2009, the applicant renewed his membership for 2009.[29]
[29] Membership renewal slip, Attachment L to Further Witness Statement of Mrkonjlc dated 14 May 2013, respondent’s tender bundle at page 200
Between 24 March 2009 and June 2009, there was email correspondence between Mr Mrkonjic as Club President and Mr Tonci Prusac, editor of the Croatian Herald (also known as the Vjesnik), about the terms under which the Croatian Herald was to be supplied to the Club by the distributor, Mr Jerko Kovac, the applicant’s father.[30]
[30] Email correspondence, Attachment U to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent’s tender bundle at pages 233-234
On 30 September 2009, the Club’s financial statements recorded a profit for the year ended 30 September 2009.[31]
[31] Profit and Loss Statements, respondent’s tender bundle at page 121
On 8 July 2010, the Croatian Express newspaper published a letter by Mr Dzaja under his own name entitled ‘Their hypocrisy holds no bounds’.[32] This letter will be discussed below.
[32] Attachment C to Further Witness Statement of Dzaja dated 14 May 2010, respondent’s tender bundle at page 139
On 5 August 2010, the applicant emailed Mr Dzaja querying why he had not received his membership card for 2010 or associated mail outs. Mr Dzaja replied on 8 August 2010, saying:
Based on a review of the receipt books and renewal forms there is no record of you renewing for 2010. If you have a receipt, no probs - just bring it in. Otherwise renewals are $15.[33]
[33] Respondent’s tender bundle at page 127
On 8 August 2010, the applicant renewed his membership for 2010.[34]
[34] Attachment M to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 55, respondent’s tender bundle at page 201
On 30 September 2010, the Club’s financial statements recorded a profit for the year ended 30 September 2010.[35]
[35] Profit and Loss Statements, respondent’s tender bundle at page 122
On 30 October 2010, a wedding reception was held at the Club. The applicant’s brother, Stan Kovac, was reported as behaving aggressively by two Board members.[36] On 2 November 2010, the Mrkonjic Board resolved to suspend Stan Kovac’s membership for 6 months for aggressive behaviour at the wedding, “if the inappropriate behaviour is confirmed by witness statements”. The minutes of the Board meeting tasked Mr Mrkonjic to “seek an explanation from Stan Kovac to ensure that all issues from all parties are considered”.[37]
[36] Attachment V to Further Witness Statement of Mrkonjic dated 14 May 2013 at pages 93 and 94, respondent’s tender bundle at pages 239 and 240
[37] Board Meeting minutes of 2 November 2010, respondent’s tender bundle at page 51
On 30 November 2010, the Mrkonjic Board considered Stan Kovac’s response to the proposed disciplinary action. The minutes of the meeting state as follows:
...Committee members unanimously agreed that due process was followed and agreed that Stan Kovac was given ample opportunity to respond to and appeal against the proposed disciplinary action. … Committee members unanimously agreed to ban Stan Kovac from the Club for a minimum of 6 months commencing from the date of the original correspondence letter (16 Nov 10).[38]
[38] The Australian Croatian Club Ltd Board of Directors meeting of 30 November 2010, applicant’s tender bundle at page 104
In or about December 2010, the applicant made a post on the Club’s Facebook site alleging Club staff/volunteers were drinking behind the bar.
On 22 December 2010, Mr Leko emailed Mr Dzaja advising that Mr Leko had been left off the Club’s mailing list.[39]
[39] Attachment C to Witness Statement of Leko dated 9 March 2012, applicant’s tender bundle at pages 23, 27
On 11 January 2011, the applicant, using the pseudonym Justin Case, made a post addressed to Ms Lemic on the Brisbane Croatian Community Facebook page. The Facebook posts are discussed below.
In February 2011, the applicant’s father attended the Mrkonjic Board meeting to ask them whether Stan Kovac could attend the funeral wake of a friend of the family which was being held at the Club. The Mrkonjic Board refused this request because Stan Kovac was serving a six-month suspension as discussed above.[40]
[40] Transcript, 28 May 2013, at pages 122-123
On 21 February 2011, the applicant, as Justin Case, made a post on the Facebook page of Tonci Prusac, the editor of the Croatian Herald at the time.
On 21 February 2011, the applicant exchanged messages with Ms Lemic on his Facebook page in the name of Justin Case.
In April 2011, the applicant made public comments on a temporary Facebook page set up to facilitate the organisation of a protest which expressed his displeasure at the Mrkonjic Board putting the portraits back up in the main hall.[41] The post is no longer available.[42]
[41] Applicant’s submissions dated 6 June 2013 at [133]
[42] Further Witness Statement of Dzaja dated 14 May 2013 at [19], respondent’s tender bundle at page 131
On 30 September 2011, the Club’s financial statements recorded a profit.[43]
[43] Profit and Loss Statements, respondent’s tender bundle at page 123
On 22 November 2011, Mr Galic lodged an application for voting membership for the 2011 year and the 2012 year[44] and the applicant lodged either an application for his membership to be renewed or, in the alternative, a form for a voting membership of the Club (the Application) for the same period. [45]
[44] Respondent’s tender bundle at page 78
[45] Applicant’s tender bundle at page 148
The Mrkonjic Board considered and rejected the Application (the Decision)[46] at a Board meeting on 12 December 2011 (the Board Meeting).
[46] Applicant’s tender bundle at page 107
The Application is no longer in the possession of the Club because it was destroyed after the Board Meeting on the night of 12 December 2011.[47]
[47] Transcript, 27 May 2013, Examination in Chief of Mrkonjic, page 97 at lines 35-40, Transcript, 28 May 2013, Cross Examination of Mrkonjic, page 148
On 13 December 2011, Mr Mrkonjic and Mr Djaza wrote to the applicant on behalf of the Mrkonjic Board advising that his Application for the years 2011 and 2012 had been rejected (the Rejection Letter).[48]
[48] Applicant’s tender bundle at page 149
The Rejection Letter was completed and signed within 24 hours of the Board Meeting but Mr Dzaja deliberately held off posting it to the applicant until late December 2011/early January 2012.[49]
[49] Further Witness Statement of Dzaja dated 14 May 2013 at [38], Respondent’s tender bundle at page 133
On 17 January 2012, the applicant lodged a complaint with the Human Rights Commission (the Commission) pursuant to section 42(1)(c) of the Human Rights Commission Act.[50]
[50] Applicant’s tender bundle at page 151
On 20 September 2012, Dr Helen Watchirs, the ACT Human Rights and Discrimination Commissioner (the Commissioner) determined that the complaint “may raise issues of discrimination on the ground of political conviction”.[51]However, the Commissioner decided that conciliation was unlikely to succeed, and closed the complaint in accordance with section 78(1) of the Human Rights Commission Act.
[51] Applicant’s tender bundle at page 169
By letter dated 15 November 2012, the applicant requested that the Commission refer the complaint to the tribunal.
On 21 November 2012 the Commissioner referred the complaint to the tribunal pursuant to section 53A of the Human Rights Commission Act.[52]
[52] Applicant’s tender bundle at page 171
On 23 February 2013, the respondent applied to have the application dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 because the respondent alleged that it was frivolous or vexatious or otherwise lacking in substance. However, the tribunal dismissed the respondent’s application on 27 March 2013 and the matter proceeded to hearing.
The substantive hearing lasted several days during which eight witnesses gave evidence and each of the parties provided a tender bundle of documents. Written submissions were provided by the parties after the hearing, followed by a further day of oral argument regarding the submissions.
The Tribunal is grateful for the extensive submissions provided by the parties’ representatives. The Tribunal will refer to the parties’ arguments interstitially as it progresses through the issues below.
The Legislative Framework
Section 42 of the Human Rights Commission Act provides that a complaint about an unlawful act under part 3 of the Discrimination Act may be made under the Human Rights Commission Act.
Section 53E of the Human Rights Commission Act provides that where the Commission refers a complaint to the tribunal and the tribunal is satisfied that the person complained about engaged in an unlawful act, the tribunal must make one or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
Section 8 of the Discrimination Act provides that a person discriminates against another person if the person treats the other person unfavourably because the other person has an attribute referred to in section 7.
Section 7(1)(i) of the Discrimination Act provides that the Act applies to discrimination on the ground of ‘religious or political conviction’.
Section 22 (1) of the Act provides that it is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club:
(a) by failing to accept the person's application for membership; or
(b) in the terms or conditions on which the club is prepared to admit the person to membership.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
Section 22 (2) of the Discrimination Act states that it is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a member of the club:
(a) in the terms or conditions of membership that are afforded to the member; or
(b) by failing to accept the member's application for a particular class or type of membership; or
(c) by denying the member access, or limiting the member's access, to any benefit provided by the club; or
(d) by depriving the member of membership or varying the terms of membership; or
(e) by subjecting the member to any other detriment.
The Dictionary of the Discrimination Act provides that a ‘club’ means a club that holds a club licence and also provides a signpost definition of ‘club licence’ that refers to the definition in section 20 of the Liquor Act 2010 (the Liquor Act).
There is no dispute between the parties that the respondent falls within the definition of ‘club’ for the purposes of the Discrimination Act, nor that it holds a club licence pursuant to section 20 of the Liquor Act.
Section 4A of the Discrimination Act provides definitions which are relevant to the need to prove that a person has been treated unfavourably because of an attribute listed in section 7. Section 4A states:
Meaning of doing an act
(1) In this Act:
doing an act includes failing to do the act.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
(2) In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
Summary of Issues
The applicant has complained that:
(a)the respondent has treated him unfavourably by failing to accept his Application and/or on the terms imposed upon his membership;
(b) in the area of ‘membership or services of a club’;
(c)because of his ‘political conviction’.
The respondent admitted that it is a ‘club’ within the definition of that term for the purposes of section 22 of the Discrimination Act and also admitted that the decision of the Mrkonjic Board dated 12 December 2011 to not endorse the applicant’s application for membership of the Club amounts to unfavourable treatment for the purposes of section 8(1) (a) of the Discrimination Act.[53] However, the respondent argued that:
i)the applicant has failed to identify or prove that he has political conviction within the meaning of section 7 (1) (i) and section 8 of the Discrimination Act; and
ii)the applicant has not proved causation on the balance of probabilities, that is, the applicant has failed to prove, either directly or by proper inference, that the respondent’s decision of 12 December 2011 was made ‘because’ of any alleged political conviction or beliefs of the applicant.[54]
[53] Respondent’s submissions dated 14 June 2013 at [9] and [10].
[54] Respondent’s submissions dated 14 June 2013 at [8] to [12]
The respondent argued that the real and true reason for the decision was the need to protect the Club, its board and volunteers, from a series of antisocial behaviours publicly displayed by the applicant. These behaviours comprised a series of Facebook posts attacking the Club over 2010 and 2011 and in the case of Mr Mrkonjic, the photographs which associated the applicant with a Nazi flag.
The meaning of ‘political conviction’
The Discrimination Act does not provide a definition of the term ‘political conviction’ for the purposes of section 7(1) (i) of the Discrimination Act.
Dealing firstly with the meaning of ‘conviction’, General President Crebbin held in Harrison & Commissioner for Social Housing in the ACT and Minister for Community Services and Minister for Aboriginal and Torres Strait Islander[55] (Harrison), that the word ‘conviction’ is used in the Discrimination Act to indicate a ‘settled or strongly held belief’.[56]
[55] [2012] ACAT 10
[56] Harrison [2012] ACAT 10 at [50]
The word ‘political’ has an array of meanings, as demonstrated by the Macquarie Dictionary:
a. relating to or dealing with the science or art of politics ...
b. of or relating to the governing of a nation, state, municipality, etc…
c. exercising or seeking a power in the governmental or public affairs of a nation, state, municipality, or the like …
d. related to or connected with a political party, or its principles, aims, activities etc. ...
e. affecting or involving the state of government ...
f. engaged in or connected with civil administration …
g. having a definite policy or system of government;...[57]
[57] Macquarie Dictionary (6th Edition) 2013
However, the Australian case law has defined the word ‘political’ in a more confined sense for the purposes of the anti-discrimination legislation. The most widely adopted interpretation defines ‘political’ as being concerned with the ‘processes of government’ or ‘bearing on government’.
Vincent J in Nestle v The President and Members of the Equal Opportunity (Nestle) held that the term ‘political’ was concerned with the processes of government as distinct from, for example, structures and interactions of industrial relations. His Honour recognised that many trade union activities may be described as ‘political’ but when the word ‘political’ is properly applied, it refers to relationships which:
...bear upon the rights which exist between ordinary members of the society concerned and the individuals or groups which control its government.[58]
[58] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805 at 815
His Honour considered that:
... the term “political” should be given the meaning ascribed to it by common usage which is concerned with the processes of government and, not in general, the structure and interactions of industrial relations.[59]
[59] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805 at 819
In CPS Management v The President and Members of the Equal Opportunity Board [60] (CPS Management) Marks J agreed with the approach of Vincent J in Nestle, adding:
... a requisite qualifying characteristic is that the belief or activity is one which bears on government. This means that the belief is not political where it has no bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government.[61]
[60] [1991] 2 VR 107
[61] [1991] 2 VR 107 at pages 111-112
A similar approach was adopted by Anderson J of the Western Australian Supreme Court in Ralph M Lee Pty Ltd v Fort (Fort).[62] His Honour stated:
I do not consider there is any reason to give the word ‘political’ in this Act a wider meaning than it bears in normal usage. In my opinion a complainant alleging discrimination on the ground of his political conviction is required to show that the conviction possessed by him and shown to have been the ground for his disadvantageous treatment by the respondent, was a conviction which had to do with government – the policies of government, the structure, composition, role, obligations, purposes or activities of government. Convictions about these things and other things of that kind relating to government or the relationship between citizens and government may properly be described as political convictions. [63]
[62] (1991) EOC 92-357
[63] (1991) EOC 92-357 at 78, 446
Anderson J found that whilst the complainant in that case, who was a highly active member of the Electrical Trade Union, undoubtedly held views on political matters, there was no evidence that those views gave rise to any prejudice against him. The disinclination to employ him was solely attributable to his industrial activity. His Honour stated:
there is in my view simply no evidence ... that the behaviour which has apparently given the complainant a reputation as a trouble-maker was driven by any political conviction - any conviction pertaining to government in a way that I have indicated is necessary.[64]
[64] (1991) EOC 92-357 at 78, 446
The question of whether a ‘political conviction’ encompasses political ideology was raised in Cairns Regional Council v Carey.[65] In that case, the respondent submitted that an ideological basis was a necessary requirement of the ‘political belief or activity’ contemplated by the Queensland Anti-Discrimination Act, citing remarks in Nestle and the CPS Management cases.[66] The Appeals Tribunal of the Queensland Civil and Administrative Tribunal considered that that submission was too wide because the ‘governmental’ connotation referred to in the legislation and case law did not “need any ideological issue or goal”.[67] However, the Appeals Tribunal continued:
The existence of an ideological goal may well help to characterise activity as political, but it is not in our view a condition precedent.[68]
[65] [2012] QCATA 150
[66] [2012] QCATA 150 at [106]
[67] [2012] QCATA 150 at [106]
[68] [2012] QCATA 150 at [106]
The applicant in the present case submitted that the meaning of ‘political conviction’ was stated by General President Crebbin in Harrison citing Nevil Abolish Child Support v Telstra Corporation Limited[69] (Nevil Abolish) which in turn relied upon Nestle and CPS Management.
[69] [1997] VADT 44
In Harrison, the applicant held strong views about the appropriateness of, and the way in which, statistics about aboriginality were gathered. His concern was that information was regularly requested about a person’s status as Aboriginal without the need for people claiming to be aboriginal to provide proof of their claim. He was concerned that, as a result, people who are not aboriginal or not Australian aboriginal claim that they are Aboriginal, allowing them to access a range of services.[70] General President Crebbin found that the applicant’s view could be described as a conviction but the question was whether it was political. President Crebbin relied upon Nevil Abolish to conclude that the applicant’s convictions were not political in character in that they did not relate to an aspect of government or of being governed. His convictions were more about the basis on which access to economic or social services may be determined.[71]
[70] Harrison at [43]
[71] [2010] ACAT 10 at [53]
In Nevil Abolish, the Victorian Anti-Discrimination Tribunal held that a belief concerning the abolition of the Child Support Agency and the Family Court, evidenced by the complainant’s name, could be characterised as a political belief. The Tribunal said:
It has been held that, for a belief ... to be political, it must bear on government - on the role, structure, feature, purpose, obligations, duties, or on some other aspect of government ... What is political must be determined objectively, taking into account the nature of the ... belief.[72]
Political Conviction – the Test to be Applied
[72] [1997] VADT 44 at 2.4
Importantly, because the definition in the ACT Discrimination Act only encompasses political belief and does not refer to political activity, it is sufficient if a person holds a political belief. The ‘political activity’ test was relied upon extensively in the respondent’s submissions in the present case. Clearly the political belief must be proved, but it is not necessary in the Tribunal’s view that the applicant holds the belief with a view to changing or influencing government, which implies action or activity or pursuing a course of action. It is sufficient if the belief is one that ‘bears on government’ or involves the processes, policies or obligations of government, adopting the tests used in CPS Management, Nestle, Fort and Nevil Abolish.
Causation – Principles
For an act to be discriminatory, it must have been done ‘because of’ the attribute concerned, therefore section 8 of the Discrimination Act requires the applicant to establish ‘a causative link between the conduct complained of and the adverse consequences for the person making the complaint’.[73]
[73] Nester v ACT Fire Brigade [2004] ACTDT 2 at [71]
Both parties relied upon the High Court judgment in Purvis v New South Wales[74] (Purvis) where the Court was dealing with a provision in the Disability Discrimination Act 1992 (Cth) and said the following about the causal link:
... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.[75]
[74] (2003) 217 CLR 92
[75] (2003) 217 CLR 92 at [236]
The test for causation in discrimination was further considered by the NSW Appeal Panel of the Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No.2) (Nicholls). [76] In that case the Appeal Panel stated:
...Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.
...Throughout its reasons, the Tribunal applied the ‘but for’ test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. [77] (emphasis added)
[76] [2009] NSWADTAP 20
[77] [2009] NSWADTAP 20 at [36]-[37]
The applicant submitted that, after having found that the applicant has the attribute of ‘political conviction’ and has been treated ‘unfavourably’ by the respondent in the area of ‘membership or services of a club’, the question for determination by the Tribunal to ultimately find unlawful discrimination is:
Were the applicant’s political convictions, either alone or in combination with other reasons, a real genuine reason for the unfavourable treatment?[78]
[78] Applicant’s submissions dated 6 June 2013 at [72]
The applicant further submitted that this causal link may be established by inference from the primary facts. Such an inference can be drawn from a combination of facts, none of which viewed alone would support that inference and a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof.[79]
[79] Dutt v Central Coast Area Health Service [2002] NSWADT 133
The respondent agreed with the applicant’s submissions on the law of causation in a discrimination context and relied in its submissions on the real, genuine or true reasons for the decision test which was adopted in Nicholls. The respondent further submitted that Purvis makes it plain that the impugned conduct is to be looked at from the point of view of the respondent, not from the point of view of the applicant.[80] Further, the respondent submitted that Purvis established that not all behaviours associated with an attribute need to be tolerated by the party to whom they are directed, therefore where the respondent responds to behaviour out of concern to protect the welfare or reputation of those for whom it is responsible, the causal link between the underlying attribute and the unfavourable treatment is not established. In support of this proposition, the respondent relied upon Knight v CORE[81] (Knight). In that case, the complainant, Mr Knight, had several A4 sheets of paper, one of which had a picture of Adolf Hitler, one with a Nazi insignia, and some other material associated with the Ku Klux Klan. The respondent prison warden confiscated these materials. The complainant alleged the materials were seized because of Mr Knight’s political beliefs.
[80] (2003) 217 CLR 92, per Gleeson CJ at [13]
[81] [2002] VCAT 731
The application in Knight was dismissed for want of causation and the tribunal found that the applicant’s case was made up of mere assertions. In the tribunal’s view, the respondent had established a more probable explanation for confiscating the material, which was that it “expressed views which promoted racial hatred, racial vilification and violence, [which were] disruptive of good order in the prison system generally”.[82]
[82] [2002] VCAT 731 at [41]-[45]
One important limitation upon applying the Knight case in the ACT is that Victoria does not have an equivalent provision to section 4A of the Discrimination Act. As extracted above, section 4A states ‘a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act’.
Section 4A has been applied in several cases by the ACT Discrimination Tribunal,[83] which was a predecessor to the present tribunal. In Almassey and Omari and ACT Multicultural Council Inc[84] President Cahill applied the test of a ‘not trivial or insubstantial’ reason or ground for the action, relying upon the High Court decision in IW v Perth.[85] President Cahill stated:
In IW v Perth, Kirby J discussed the effect of a similar provision in the Western Australian anti-discrimination legislation at issue in that case. Although his Honour was in dissent, the majority did not discuss the application of the provision. Kirby J said that an act will be taken to have been done on a discriminatory ground if it ‘truly played a causative part’ in the act and was ‘not [a] trivial or insubstantial’ reason or ground. I consider that this approach more closely accords with the text of s 4A(2).[86]
Causation - the Test to be Applied
[83] Kwesius and ACT Health [2008] ACTDT 3; Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2; Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1
[84] [2008] ACTDT 2
[85] [1997] HCA 30; (1998) 191 CLR 1 at [63]
[86] [2008] ACTDT 2 at [21]
The Tribunal agrees with the applicant’s submission that the question for the Tribunal is whether the applicant’s political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls test that was relied upon by the parties in submissions. The Tribunal notes that Purvis provides an overarching question of whether the aggrieved person was treated less favourably ‘because of’ the person's attribute. So in determining whether the respondent has treated the applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant’s political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.
Principles Regarding Evidence in Discrimination Matters
Indirect Evidence - Drawing of Inferences
The applicant submitted that the relevant principle regarding the drawing of inferences in civil cases[87] was expressed by the High Court in Bradshaw v McEwans Pty Ltd[88] (Bradshaw) as follows:
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ...[89]
[87] Applicant’s submissions dated 6 June 2013 at [47]
[88] (1951) 217 ALR 1
[89] (1951) 217 ALR 1 at page 5
The respondent agreed with the applicant that the proper principles to apply are set out in Bradshaw and noted that Bradshaw is authority for the principle that the Tribunal should be concerned with probabilities, not with possibilities.[90] The respondent relied on the comments of Senior Member Lennard in Bell & De Castella and Rob De Castella’s Smartstart For Kids Limited[91] that in circumstances where there is no direct evidence and the applicant relies on the drawing of inferences from primary facts, “it is not enough that the inference is a mere possibility: it must be one of probable connection .... The inference must be a logical one and not supposition.” [92]
[90] Respondent’s submissions dated 14 June 2013 at [30]
[91] [2013] ACAT 27
[92] [2013] ACAT 27 at [18]
In Sharma v Legal Aid (Qld),[93] the Full Court of the Federal Court noted that it is unusual to find direct evidence of discrimination and the outcome of cases usually depends on what inferences may be drawn from the primary facts found. Referring to alleged racial discrimination, the Court said:
There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not; race was the reason it acted as it did .... In a case depending on circumstantial evidence, it is well established that the trier of fact must consider “the weight which is to be given to the united force of all the circumstances put together”. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone ... It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts. [94]
Standard of Proof
[93] [2002] FCAFC 196
[94] [2002] FCAFC 196 at [40]-[41]
In this case, the applicant must prove his case on the balance of probabilities, however the parties were in disagreement as to whether the principle in Briginshaw v Briginshaw (Briginshaw)[95] applies. It is well settled that the principle in Briginshaw goes to the sufficiency of evidence required to discharge the civil standard. As identified by the respondent, Briginshaw is authority for the proposition that the more serious the allegation, the more weighty the evidence must be for the Tribunal to be satisfied that it is proven. As stated by Rees, Rice and Allen:
... Briginshaw is really nothing more than a warning to decision-makers to be careful about the probative value of the evidence on which they rely to make findings on the balance of probabilities when those findings have very serious consequences for the person against whom they are made.[96]
[95] (1938) 60 CLR 336
[96] Rees, Rice and Allen, Australian Anti-Discrimination Law (2nd edition, 2014) at page 151
Although Briginshaw is routinely applied in anti-discrimination cases,[97] the applicant challenged its applicability in the present case. The applicant submitted that the allegations made by the applicant against the respondent are not of such a serious nature and the case does not involve issues of such importance and gravity to invoke the application of the Briginshaw standard.[98]The applicant relied upon the Full Federal Court judgment in State of Victoria v Macedonian Teachers’ Association of Victoria[99] (Macedonian Teachers) where the court concluded that:
...[t]he mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test.[100]
[97] L De Plevitz, ‘The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: Pointing with a Wavering Finger’ (2003) 27 Melbourne University Law Review 308 at page 312
[98] Applicant’s submissions dated 6 June 2013 at [64]
[99] (1999) 91 FCR 47
[100] (1999) 91 FCR 47 at 51
The Full Court in the Macedonian Teachers case compared the case that was before them, which did not require the court to make a finding of deliberate discrimination against one section of the community in order to favour another section and where the probity of the Victorian government was not an issue, with the case of Department of Health v Arumugam[101] (Arumugam) where two prominent and highly qualified medical practitioners holding positions of trust were accused of using racist criteria in carrying out a selection process. That case required a finding of ‘deliberate’ discrimination for its determination and Fullagar J in Arumugam considered that such a conclusion would, if found to be true, be deserving of wide condemnation for a lack of probity in office and therefore that the Briginshaw principle would apply.[102]
[101] [1988] VR 319
[102] (1999) 91 FCR 47 at 50
The Full Court in the Macedonian Teachers case agreed with Fullagar J’s conclusion in Arumugam but also discussed the High Court decision in G v H[103] as follows:
… Deane, Dawson and Gaudron JJ said, when considering the application of the principle to the case before them, that ‘due regard must be had to the nature of the issue involved’ because not every case involves issues of importance and gravity in the Briginshaw sense. They said ‘the need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing’. In that case the issue involved the paternity of a child, and it was held that the principle had no application.[104]
[103] (1994) 181 CLR 387
[104] (1999) 91 FCR 47 at 50 discussing G v H (1994) 181 CLR 387 at 399
The present case does not involve a finding of lack of probity or ‘deliberate’ discrimination, however, the respondent disagreed with the applicant’s contentions about Briginshaw and relied upon Ronalds and Raper to assert that the Briginshaw test has been applied in all jurisdictions as the basis of assessing the allegations and evidence.[105] The respondent pointed to the serious consequences that potentially flow from a finding that the respondent has breached the Discrimination Act. Further, the respondent argued that the Tribunal is bound by the Federal Court judgment in De Domenico v Marshall (De Domenico).[106] In that case a predecessor to the present tribunal, the ACT AAT, applied the Briginshaw standard in a sexual harassment case. This application was upheld by the Full Federal Court.[107]
[105] Ronalds, and Raper, Discrimination Law and Practice (4th edition, 2012) at 193
[106] [1999) FCA 1305
[107] [1999] FCA 1305 per Madgwick J at [16], [17] and [22]
During the hearing, the Tribunal discussed the judgment of Branson J in Qantas Airways v Gama[108] where her Honour challenged the routine application of Briginshaw in discrimination cases. She stated as follows:
the correct approach to the standard of proof in a civil proceeding in a federal court is that for which section 140 of the Evidence Act provides. It is an approach which recognises, ... that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved -- and, I would add, the circumstances in which it is sought to be proved.[109]
[108] [2008] FCAFC 69; (2008) 167 FCR 537
[109] (2008) 167 FCR 537 at 577
Section 140 of the Evidence Act 2011 (Evidence Act) states as follows:
140 Civil proceedings—standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is satisfied, it must take into account—
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
Although the tribunal is not bound by the rules of evidence,[110] the parties agreed that the Tribunal should take heed of the warnings given by Branson J and apply section 140 of the Evidence Act in the present case, although recognising that the application requires some adaption for the tribunal context. The Appeal Panel of the former NSW Administrative Decisions Tribunal considered this to be the correct approach.[111] The Tribunal notes the warning of the Appeal Panel regarding the ‘ritual incantation’ of the Briginshaw standard in anti‑discrimination cases.[112]
[110] Section 8 ACT Civil and Administrative Tribunal Act
[111] Burns v Laws [2008] NSWADTAP 32
[112] Burns v Laws [2008] NSWADTAP 32 at [136]
In this case, in deciding whether it is satisfied for the purposes of section 140(2) of the Evidence Act, the Tribunal must take into account that the case involves allegations that the respondent discriminated against the applicant due to his political beliefs, which may amount to unlawful conduct under Part 3 of the Discrimination Act. As argued by the respondent, a determination that it has engaged in the conduct alleged would have serious consequences for the reputation of the Club and the Board in a small world of the Croatian community in Canberra.
However, when assessing the gravity of the matters alleged, the Tribunal notes that this matter does not involve an allegation of fraud, or lack of probity. Although the Tribunal recognises that a finding that the respondent has treated the applicant unfavourably because of his political views does have serious consequences, its gravity is on the lighter end of the sliding scale, so it is less serious than vilification, which the NSW Appeal Panel found, in turn, to ‘not sit as high in the spectrum of gravity’ as the allegations in Briginshaw itself, that is, an adverse finding of adultery against a wife in public court proceedings in the 1930s.[113] Similarly the Tribunal does not consider the allegation to be as serious as an allegation of sexual harassment against a public figure, i.e. a politician, which was in issue in De Domenico. Therefore, although the Full Federal Court upheld the AAT’s application of the Briginshaw standard in DeDomenico, the Tribunal does not consider that it is bound by the standard of proof adopted in the particular circumstances of the De Domenico case.
THE EVIDENCE
The Facebook Posts
[113] Burns v Laws [2008] NSWADTAP 32 at [137]
Several Facebook posts were put into evidence by the parties in the proceedings. They have been reproduced below and have only been amended to allow for deletions.
December 2010
In December 2010, the applicant allegedly made a post on the Club’s Facebook page to the effect that the Club’s staff were getting drunk behind the bar whilst working at events.[114] The posts were deleted by Mr Dzaja, the Club's Facebook administrator, in December 2010 and are no longer accessible. [115] Mr Dzaja blocked the applicant’s username from making any additional posts on the website.[116]
11 January 2011
[114] Further Witness Statement of Dzaja dated 14 May 2013 at [9] and [13], respondent’s tender bundle at page 130 and Transcript, 28 May 2013, Examination in Chief of Dzaja, page 180 at lines 3-20
[115] Further Witness Statement of Dzaja dated 14 May 2013 at [13], respondent’s tender bundle at page 131 and Transcript, 28 May 2013, page 180 at lines 22-24
[116] Further Witness Statement of Dzaja dated 14 May 2013 at [13], respondent’s tender bundle at page 131
On 11 January 2011, the applicant, as Justin Case, made a post on the Brisbane Croatian Centre Facebook during the Brisbane floods under the comment ‘Brisbane cro centre flooded to gates’ as follows.
Marija Lemic
Damn! Hope there isn't any damage.
Justin Case
Worry about the damage being done to the O’Connor club marija. I think Rocklea will be fine. even if it was damaged by the floods, they haven't pissed off half the community so finding volunteers to help repair it shouldn’t be as hard as it is finding volunteers for “your” club.[117]
21 February 2011 - Tonci Prusac Facebook Page
[117] Applicant’s tender bundle at page 139
On 21 February 2011, the applicant (Justin Case) made a post on the Facebook page of Tonci Prusac, the editor of the Croatian Herald (Vjesniks) at the time stating:
Marija Lemic
happy birthday Tonci, hope you have a good one.
Justin Case
I thought you banned Vjesniks at O’connor marija? I'm confused now ...
Marija Lemic
Danijel Kovac, stop hiding behind Justin Case. BTW - can you read? Nothing was mentioned about the Vjesnik nor O’Connor. I just wished a friend happy birthday. So stick your nose/ass somewhere else.
Justin Case
Yes or no Marija, a simple question for you as an uprava member. Do you or do you NOT sell the Vjesniks at the o’connor club?
Marija Lemic
Your father brings it and sells it.
Justin Case
So you answer is NO the club doesn’t sell it. You also banned Jerko from selling it too... Marija please tell everyone you didn't!!!!! because then I can call you a liar as well!!!!
Marija Lemic
Why didn’t you bring your concerns at the last AGM? Danijel you need to go talk to someone regarding your anger ...
Justin Case
... You banned Jerko and thats a FACT! Good thing the club members were asking for the Vjesnik and made YOU look like a fool. You can’t stop him because he’s not actually doing anything wrong. Don’t embarrass yourself further Marija, people are just laughing at you![118]
There was evidence that disciplinary actions had previously been taken by the Board including in relation to Stan Kovac who had been accorded ‘due process’ by the Board by being given notice of a proposed suspension and an opportunity to make submissions even though there was an allegation of aggressive behaviour.[197] There was no evidence that any other member had had their voting membership removed by a ‘final and not negotiable’ decision of a board of directors of the Club.
[197] Board Meeting minutes of 2 November 2010, respondent’s tender bundle at page 51
As stated above, the term of the Rejection Letter that required the applicant to demonstrate ‘truly Croatian values’ stipulated a standard that the applicant was obliged to attain before being permitted to return to the Club even with a social membership. There was no evidence that any previous member had been subjected to this condition. The content of this obligation and how it was to be determined was unclear.
The Tribunal concludes that the respondent treated the applicant unfavourably by cancelling his membership without complying with the Articles of Association, thereby depriving him of his membership (section 22(2)(d) of the Act), failing to accept his application for voting membership (section 22(2)(b) of the Act) and offering an inferior form of membership, that is, a social membership, and attaching an onerous condition upon any future application that the applicant might make for the inferior form of membership (section 22(2)(a) of the Act).
Other matters – Unfavourable treatment due to refusal of service?
The applicant alleged that members of the Mrkonjic Board ignored the applicant and denied him service at a film screening which took place in October 2010.[198] Mr Milicevic gave evidence that he was present at that film screening and witnessed certain treatment of the applicant by the members of the Mrkonjic Board. Mr Milicevic stated that Mr Mrkonjic finished serving everyone else who had approached the bar thereby disregarding the fact that they approached the bar well after the applicant and he had concluded that Mr Dzaja would not sell a DVD to the applicant.
[198] Transcript 27 May 2013, Examination-in-Chief Milicevic, pages 80-81
Although there was some confusion by witnesses for the respondent about the date of the film screening, the Tribunal accepts the evidence of Mr Djaza that he was setting up a stall and he asked the applicant to wait so as to avoid a rush[199] as well as the evidence of Mr Mrkonjic that he served all the members and their invited guests, including the applicant, within a half-hour period prior to the screening. [200]
[199] Transcript, 28 May 2013, pages 190-191
[200] Witness Statement of Mrkonjic dated 23 February 2013 at page 3
The Tribunal is not satisfied that the respondent was denied service by Mr Dzaja or Mr Mrkonjic on that occasion.
Detriment
The applicant outlined the impact upon himself and his family that has resulted from the respondent’s Decision, which included:
(a)denial of his right to attend general and extraordinary meetings to vote on matters pertaining to the respondent;
(b)restricting the number of times he can visit the respondent’s premises to attend social events and interact with other members of the community; and
(c)excluding the applicant’s family members from attending events held at the respondent's premises.[201]
[201] Kovac Statement to the Human Rights Commission dated 17 May 2012, applicant’s tender bundle at page 21.
The Tribunal makes no findings at this stage of the proceedings about the detriment suffered by the applicant although the evidence clearly demonstrated that the social membership offered by the respondent subject to a condition of the applicant demonstrating ‘truly Croatian values’ did not allow him to vote at meetings of the club.[202]
CONCLUSION
[202] Transcript, 20 June 2013, page 272
The Tribunal has found that the respondent unlawfully discriminated against the applicant pursuant to sections 8 and 22 of the Discrimination Act 1991 by treating the applicant unfavourably because of the applicant’s political conviction by the Board’s conduct prior to, including and subsequent to the refusal of his application for membership of the respondent at the Board Meeting on 12 December 2011.
As a consequence of this finding, the Tribunal has ordered that the matter be listed for further directions to consider the further orders that Tribunal must make pursuant to section 53E of the Human Rights Commission Act.
………………………………..
Professor P. Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
PART A
FILE NUMBER: | DT 12/10 |
PARTIES, APPLICANT: | KOVAC |
PARTIES, RESPONDENT: | The Australian Croatian Club |
SOLICITORS FOR APPLICANT | Mr Brackenreg Meyer Vandenberg Lawyers |
SOLICITORS FOR RESPONDENT | Ms Sullivan Bradley Allen Love Lawyers |
TRIBUNAL MEMBERS: | Professor P. Spender |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
24