Lawson v State of New South Wales (Housing NSW)

[2012] NSWADT 127

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Lawson v State of New South Wales (Housing NSW) [2012] NSWADT 127
Hearing dates:	5 June 2012
Decision date:	08 June 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The Applicant's application for registration of a conciliation agreement as a Tribunal order is refused.
Catchwords:	ORDERS - registration of terms of conciliation agreements made in Anti-Discrimination Board proceedings as orders of the Tribunal - whether terms are terms that could have been the subject of an order in proceedings relating to a complaint under the Anti-Discrimination Act 1977 - whether the respondent has complied with the terms of the agreement
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1998
Cases Cited:	World Series Cricket v Parish (1977) 16 ALR 181 IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 Commonwealth v HREOC (1998) 152 ALR 182 Rose v Secretary, Department of Social Security (1990) 92 ALR 521
Texts Cited:	Spry Equitable Remedies, 7th ed, Lawbook Co 2007
Category:	Principal judgment
Parties:	Janet Lawson (Applicant) State of NSW (Housing NSW) (Respondent)
Representation:	Counsel S Gardiner (Respondent) Australian Centre for Disability Law (Applicant)
File Number(s):	121045

REASONS FOR DECISION

Introduction

1. Ms Lawson has applied to register a conciliation agreement made between her and Housing NSW at the Anti-Discrimination Board (the ADB) on 11 October 2011. The effect of registration is that the agreement can be enforced as an order of the Tribunal. The conciliation agreement was signed following a complaint Ms Lawson made to the Board that Housing NSW had discriminated against her on the ground of disability in breach of the Anti-Discrimination Act 1977 (AD Act). Ms Lawson says that Housing NSW has not complied with all of the terms of the agreement.

Background

1. Ms Lawson has a medical condition knows as "Multiple Chemical Sensitivity" (MCS) and vision impairment which affects her ability to read. MCS is a severe sensitivity to solvents, volatile organic compounds, perfumes, smoke and chemicals. It is a chronic condition.

1. On 17 January 2008 Ms Lawson signed a Residential Tenancy Agreement with Housing NSW. Some time later Housing NSW attempted to enter her premises to perform maintenance work. She refused to allow entry until she could establish, from her doctor, whether the chemicals likely to be used would pose an unacceptable risk to her health. She asked for certain documents to be prepared, namely a "Scope of Work" setting out the tasks to be undertaken in the course of the maintenance and "Materiel Safety Data Sheets" setting out the products that would be used and their chemical composition.

1. Ms Lawson asked to be given these two documents before any maintenance work was performed so that she could show them to her doctor. If her doctor says that the chemicals constitute an unacceptable risk to her health she may either ask for alternative chemicals to be used or ask to be relocated until the maintenance has been completed. When she was dissatisfied with Housing NSW's response to her requests, she lodged a complaint of disability discrimination with the President of the ADB.

1. The ADB conducted a conciliation conference. Following further negotiations after that conference, the parties signed a deed of release settling the complaint on agreed terms. The deed of release annexed an agreement setting out the terms on which Ms Lawson's complaint had been resolved.

1. In the Application to the Tribunal for Registration of the Conciliation Agreement, Ms Lawson's representative identified clauses 3 and 9 of the agreement as the clauses Ms Lawson wanted to be registered. At the hearing, that application was expanded to include the whole agreement except clauses 1, 11 and 12. Ms Lawson's representative accepted that Housing NSW had complied with those clauses.

Issues

1. The first issue is whether the agreement as a whole (apart from clauses 1, 11 and 12) could have been the subject of an order of the Tribunal. If not, could clauses 3 and 9 have been the subject of such an order? If one or more of the clauses, or parts of clauses, of the agreement meets that test, the second issue is whether Housing NSW has complied with those terms of the agreement. These issues arise from s 91A(8) of the AD Act:

If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the clauses of the agreement, the member is to register those clauses of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint.

Could the agreement have been the subject of a Tribunal order?

1. Housing NSW submitted that none of the terms of the agreement are orders which the Tribunal could have made under section 108(2)(b) or (c) of the AD Act and, for that reason, none could be registered by the Tribunal. Section 108 states that:

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

1. The powers in s 108(2)(b) and (c) are based on the equitable remedies of mandatory and prohibitory injunctions. While the legal principles applicable to these kinds of injunctions in the general law are relevant, the provisions must be interpreted in their statutory context. When making orders enjoining or prohibiting a respondent from certain conduct, that conduct must be conduct that is rendered unlawful by the AD Act. When making mandatory or positive orders, the orders must be for the purpose of redressing any loss or damage suffered by the applicant.

1. Another principle which is relevant when determining whether a conciliation agreement could have been the subject of an order by the Tribunal is whether the agreement is sufficiently certain or definite to be understood and enforced: World Series Cricket v Parish (1977) 16 ALR 181. A party may be subject to proceedings for contempt for non-compliance with an order: Administrative Decisions Tribunal Act 1997, s 131(1)(j).

1. The agreement contains 16 clauses. Clause 2 relates to the way in which Housing NSW agrees to communicate with Ms Lawson to ensure that her vision impairment does not prevent her from understanding and responding to correspondence.

1. Clause 3, which was one of the two clauses that Ms Lawson originally applied to be registered, states that:

Housing NSW agrees to provide Janet Lawson with a Scope of Work and Material Safety Data Sheets in relation to all work to be performed on her property as soon as possible, but in any event, not less than 6 weeks (30 working days) in advance of the date that work is scheduled to be performed. Housing NSW agrees that this period of time is necessary in order for Janet Lawson to obtain and attend an appointment with her treating doctor. In the event that Janet Lawson, despite her best endeavours, is unable to obtain an appointment with her treating doctor within 30 days of Housing NSW providing her with a Scope of Work and Material Safety Data Sheets, Housing NSW agrees to provide Janet Lawson with reasonable additional time in which to consult her treating doctor. Janet Lawson agrees not to unreasonably prevent access to her property once the Material Safety Data Sheets have been provided and reasonable time to consult her doctor has passed.

1. Clause 4 sets out Ms Lawson's obligations to advise Housing NSW if any substance disclosed on the Material Safety Data Sheet presents a risk to her health.

1. In clause 5 Housing NSW agrees not to use chemicals that pose a risk to Ms Lawson. Clause 6 relates to the circumstances in which Ms Lawson may refuse entry to her property. Clause 7 sets out the circumstances in which Housing NSW will relocate Ms Lawson when maintenance work is being carried out. Clause 8 relates to the management of Housing NSW's tenancy and client file management procedures as they apply to Ms Lawson.

1. Clause 9, which was the second of the two clauses that Ms Lawson originally applied to be registered, states that:

Within 21 days of the date of this agreement, Housing NSW agrees to nominate a specific Client Service Officer, and an alternate "backup officer", as a contact person for Janet Lawson with whom she can discuss her disability related adjustments. Housing NSW will provide Janet Lawson with the direct telephone number and e-mail contact information for the staff to facilitate communication with them. These officers are to be responsible for providing Janet Lawson with Scope of Work and Material Safety Data Sheets and for coordinating any changes that may be required to proposed maintenance work. Housing NSW further agrees that it will ensure that these officers are fully briefed about Janet Lawson's disability related adjustment requirements. Housing NSW further agrees that it will as soon as practicable inform Janet Lawson of any change to the person holding these positions. Housing NSW further agrees that it will ensure there is a comprehensive hand over briefing in relation to Janet Lawson's circumstances when her nominated Client Service Officer changes.

1. In clause 10 Housing NSW agreed to "consider" including Multiple Chemical Sensitivity in its training programs.

1. Clause 13 acknowledges that the agreement is not "infallible" and that while Housing NSW will try to abide by the agreement, both parties agree to try to resolve any disagreement rather than assert that the agreement has been breached. Clause 14 makes it clear that the agreement as set out in clauses 3 and 6 does not apply to emergency situations.

1. The reasoning that Ms Lawson's representative gave to justify the registration of the entire agreement (apart from clauses 1, 11 and 12) was as follows:

(1)   The provisions in the AD Act must be interpreted liberally and beneficially.

(2)   The conciliation agreement must be read as a whole to give it any meaningful effect.

(3)   Ms Lawson's complaint is a complaint of disability discrimination either relating to accommodation or the provision of services. The provisions which have allegedly been breached are s 49M(1)(a) (refusal of services), 49M(1)(b) (the terms on which services are provided), s 49N(2)(a) (denying access to a benefit associated with accommodation) and s 49N(2)(c) (subjecting Ms Lawson to any other detriment in relation to the provision of accommodation).

(4)   The complaints are that Housing NSW discriminated "indirectly" against Ms Lawson as defined in s 49B(1)(b).

(5)   The combined effect of the agreement is to ensure that policies and processes which on their face are neutral do not result in disproportionate and discriminatory outcomes for Ms Lawson on the ground of her disability

(6)   The effect of registering the clauses of the conciliation agreement would be tantamount to making an order under s 108(2)(b) enjoining NSW Housing from continuing the alleged unlawful conduct.

(7)   The effect of registering the clauses of the conciliation agreement would be tantamount to making an order under s 108(2)(c) that Housing NSW perform any reasonable act or course of conduct to redress any loss of damage suffered by Ms Lawson.

(8)   The Tribunal has power to regulate future conduct.

1. Generally speaking, the AD Act is remedial legislation and should be interpreted beneficially: IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 at 702; Commonwealth v HREOC (1998) 152 ALR 182. However, not every provision is open to be construed beneficially as distinct from strictly. Provisions must be interpreted by analysing their language and purpose: Rose v Secretary, Department of Social Security (1990) 92 ALR 521 at 524.

1. The purpose of s 96 of the AD Act is to allow an applicant to enforce a term of a conciliation agreement as if it were an order of the Tribunal, rather than merely as a breach of contract. In order to be enforced as an order of the Tribunal, the order must have, at least, the following features:

(1)   it must relate to the respondent;

(2)   it must be sufficiently certain to allow the person to whom it is directed to comply with it: Spry Equitable Remedies, 7th ed, Lawbook Co 2007 at 374-376;

(3)   an order enjoining or prohibiting a respondent from certain conduct can only relate to conduct that is rendered unlawful by the AD Act;

(4)   a mandatory order must be for the purpose of redressing any loss or damage suffered by the applicant.

1. Several clauses in the agreement impose positive or negative obligations on Ms Lawson. Under s 108, the Tribunal does not have power to make orders against an applicant. Some of the terms, such as clause 7 and 9a contain words such as "where practicable" or "if possible" which make them too uncertain to be understood and enforced. Clause 10 merely requires Housing NSW to "consider" including MCS in its training programs. Finally, some of the terms, including clause 13, seek to regulate the circumstances in which the terms of the agreement will be enforced, rather than imposing any positive or negative obligation. For these reasons I do not accept the submission from Ms Lawson's representative that the Tribunal could register all the terms of the agreement apart from clauses 1, 11 and 12.

1. The alternative submission was that clauses 3 and 9 could be registered. The terms of those clauses are listed separately below:

Clause 3

(1)   Housing NSW agrees to provide Janet Lawson with a Scope of Work and Material Safety Data Sheets in relation to all work to be performed on her property as soon as possible, but in any event, not less than 6 weeks (30 working days) in advance of the date that work is scheduled to be performed.

(2)   Housing NSW agrees that this period of time is necessary in order for Janet Lawson to obtain and attend an appointment with her treating doctor.

(3)   In the event that Janet Lawson, despite her best endeavours, is unable to obtain an appointment with her treating doctor within 30 days of Housing NSW providing her with a Scope of Work and Material Safety Data Sheets, Housing NSW agrees to provide Janet Lawson with reasonable additional time in which to consult her treating doctor.

(4)   Janet Lawson agrees not to unreasonably prevent access to her property once the Material Safety Data Sheets have been provided and reasonable time to consult her doctor has passed.

Clause 9

(1)   Within 21 days of the date of this agreement, Housing NSW agrees to nominate a specific Client Service Officer, and an alternate "backup officer", as a contact person for Janet Lawson with whom she can discuss her disability related adjustments.

(2)   Housing NSW will provide Janet Lawson with the direct telephone number and e-mail contact information for the staff to facilitate communication with them. These officers are to be responsible for providing Janet Lawson with Scope of Work and Material Safety Data Sheets and for coordinating any changes that may be required to proposed maintenance work.

(3)   Housing NSW further agrees that it will ensure that these officers are fully briefed about Janet Lawson's disability related adjustment requirements.

(4)   Housing NSW further agrees that it will as soon as practicable inform Janet Lawson of any change to the person holding these positions. Housing NSW further agrees that it will ensure there is a comprehensive hand over briefing in relation to Janet Lawson's circumstances when her nominated Client Service Officer changes.

1. The first part of clause 3 imposes a positive obligation on Housing NSW to provide Ms Lawson with certain documents prior to carrying out any work on her property. Those documents must be provided not less than 30 working days in advance of the date that the work is scheduled to be performed. The term is in the nature of a mandatory injunction. It requires Housing NSW to perform certain acts which, I accept, are reasonable. My understanding is that the purpose of this term is to redress loss and damage suffered by Ms Lawson on a previous occasion when maintenance work was sought to be carried out without those documents having been provided. The first part of the clause is sufficiently certain for Housing NSW to understand and implement. The Tribunal could have made an order to that effect if it had found the complaint to have been substantiated at a hearing.

1. The second part of clause 3 does not impose any positive or negative obligation on Housing NSW.

1. The third part of clause 3 applies in circumstances where the 30 day notice period is insufficient for Ms Lawson to consult with her doctor. It places a positive obligation on Housing NSW to give Ms Lawson extra time. Phrases such as "best endeavours" and "reasonable additional time' are imprecise. Nevertheless, the obligations on the parties are sufficiently clear for this term to be a term that the Tribunal could order.

1. The third part of clause 3 places an obligation on Ms Lawson. It is not the kind of term that could have been the subject of an order by the Tribunal.

1. The first part of clause 9 imposes a positive obligation on Housing NSW. However, it is not a requirement which seeks to redress loss or damage suffered by Ms Lawson. It is an administrative arrangement to facilitate communication between the parties. It is not the kind of term that could have been the subject of an order in proceedings relating to a complaint. The same conclusion applies to the remainder of clause 9.

Did Housing NSW comply with the terms of the agreement?

1. As the first and third parts of clause 3 are the only terms contained in either clause 3 or clause 9 that could be registered, the remaining issue is whether Housing NSW has complied with those terms.

1. Ms Lawson gave evidence that on 7 May 2011 her hot water system failed. She contacted the Housing Contact Centre to request that it be repaired. She indicated that prior to repair she would need to obtain a Scope of Work and Material Safety Data Sheet in relation to the work to be undertaken. Despite her repeated requests, she says that to date, Housing NSW has failed to provide her with a Scope of Work and Material Safety Data Sheet in relation the repair of her hot water system.

1. Evidence from Mr Cureton, the solicitor from Housing NSW with carriage of this matter, is inconsistent with Ms Lawson's evidence. He produced an internal email which stated that the team leader, Kim Simpson, forwarded Ms Lawson the documents in November 2011 and that she then forwarded them to her doctor. As of 10 November, the email suggested that Housing NSW was waiting on the response from Ms Lawson so they could proceed to install a hot water system. This second hand evidence is insufficient to satisfy me that the term in Clause 3 was complied with at that time.

1. Mr Cureton also provided a copy of an email dated 29 February 2012, apparently to Ms Lawson's email address. The email refers to two documents which Mr Cureton says are the Material Data Safety Sheets for the hot water system and the Scope of Works. The email asks Ms Lawson to consult with her doctor.

1. Neither Ms Lawson nor Mr Cureton gave evidence. In circumstances where the 29 February 2012 email to Ms Lawson apparently attaches the relevant documents, the Applicant has failed to discharge her onus of proof that Housing NSW has not complied with the first part of clause 3. If I had been satisfied that the term had not been complied with, I would have registered that term of the agreement.

Conclusion

1. Ms Lawson settled a complaint of disability discrimination against Housing NSW by signing a conciliation agreement at the ADB. She has applied to the Tribunal for the agreement, or part of the agreement, to be registered as an order of the Tribunal. Apart from two terms in the agreement, the terms are not terms which could have been the subject of an order by the Tribunal in proceedings relating to the complaint. I am not satisfied that Housing NSW has not complied with the terms that could be registered. Consequently, the application is refused.

Orders

The Applicant's application for registration of a conciliation agreement as a Tribunal order is refused.

**********

Decision last updated: 03 July 2012