Moavenian v Transport for NSW

[2021] NSWCATAD 77

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moavenian v Transport for NSW [2021] NSWCATAD 77

Hearing dates:

10 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

Leave for the complaints to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

HUMAN RIGHTS – equal opportunity — discrimination on ground of race – qualifying bodies – victimisation

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Driving Instructors Act 1992 (NSW)

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Elliott v Nanda & Commonwealth [2001] FCA 418

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Hossein Moavenian (Applicant)
Transport for NSW (First Respondent)
Commissioner of Police (Second Respondent)
Andrew Cotton (Third Respondent)

Representation:

Counsel:
M Waters (Applicant)

Solicitors:
Illawarra Legal Centre (Applicant)
Crown Solicitor (First Respondent)
Kingston Reid (Second and Third Respondents)

File Number(s):

2020/00365381

Publication restriction:

None

REASONS FOR DECISION

Background

1. Mr Moavenian is of Iranian background. He applied for a driving instructor’s licence on 20 March 2019. Transport for NSW (Transport), the first respondent, referred the application to the Commissioner for Police for assessment as required by the Driving Instructors Act 1992. The assessment was carried out by Senior Constable Cotton, the third respondent. The second respondent provided a report indicating that his application was opposed. Notwithstanding this, the first respondent granted the licence on 6 June 2019.

2. Mr Moavenian complained to the Anti-Discrimination Board that Transport for NSW discriminated against him on the ground of race, as a qualifying body, by delaying or failing to grant him a licence because of the report of the Commissioner of Police which was allegedly affected by race discrimination under the Anti-Discrimination Act 1977(ADA).

3. He alleged that the Commissioner of Police and Senior Constable Cotton aided Transport in discriminating against him by producing and submitting their report and unlawfully victimised him by producing a negative report because he had previously complained to the Australian Human Rights Commission (AHRC) against the Commissioner of Police with regard to an earlier application.

4. The President of the Anti-Discrimination Board declined his complaint on the ground that it was lacking in substance.

5. The applicant has applied to this Tribunal for leave to proceed with his complaint under s 96 of the ADA.

Relevant legislation

Leave to proceed with complaint

6. Section 92 of the ADA provides:

“92 President may decline complaint during investigation

1. If at any stage of the President’s investigation of a complaint—

   (a)   the President is satisfied that—

   (i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

   (ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

   (iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

   (iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

   (v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

   (vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

   (vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

   (b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

1. The President, in a notice under this section, is to advise the complainant of—

   (a)   the reason for declining the complaint or part of the complaint, and

   (b)   the rights of the complainant under sections 93A and 96.”

   7. Where the President has declined a complaint under s 92 of the ADA the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

   8. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

   9. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

Discrimination on grounds of race

10. Section 7 of the ADA provides:

“7 What constitutes discrimination on the ground of race

1. A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

   (a)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

   (b)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

   (c)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

2. For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

   11. Section 12 provides:

“12 Qualifying bodies

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race—

(a)   by refusing or failing to confer, renew or extend the authorisation or qualification,

(b)   in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c)   by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.”

12. Section 50 provides:

“50 Victimisation

1. It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

   (a)   brought proceedings against the discriminator or any other person under this Act,

   (b)   given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

   (c)   alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

   (d)   otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

1. Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

   13. Section 52 provides:

“52 Aiding and abetting etc

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.”

14. Section 53 provides:

“53 Liability of principals and employers

1. An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

2. If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

3. Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

4. For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

   15. Section 54(1) provides:

“54 Acts done under statutory authority

1. Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of—

   (a)   any other Act, whether passed before or after this Act,

   (b)   any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

   (c)   an order of the Tribunal,

   (d)   an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or

   (e)    (Repealed)”

Driving instructor’s licence

16. Sections 11 to 13 of the Driving Instructors Act 1992 as at the relevant date provided:

“11 Application for licence

1. An application for a licence is to be in a form approved by the Authority and is to be lodged with the Authority.

2. The application is to be accompanied by the fee prescribed by the regulations.

12 Referral of application to Commissioner of Police

1. The Authority must, as soon as practicable after receiving an application for a licence, notify the Commissioner of Police of the application.

2. The Authority is not obliged to notify the Commissioner of Police of an application for the renewal of a licence.

13 Investigation of applicant

As soon as practicable after being notified of an application, the Commissioner of Police must cause inquiries to be made as to the character of the applicant and must give a written report of the result of the inquiries to the Authority.

14 Consideration of information

1. In considering an application, the Authority must take into account any report of the Commissioner of Police and any other relevant information known to it.

2. It does not matter whether the other information (if any) was known or received before or after the report was made.”

   17. The “Authority” referred to in the Act means Roads and Maritime Services constituted under the Transport Administration Act 1988. Since the relevant incidents occurred, the legislation has been amended and the functions of the Authority have been transferred to Transport for NSW.

The applicant’s case

18. The applicant’s case can be summarised as follows:

1. Both the Commissioner and Transport are qualifying bodies under s 12 of the ADA.

2. The Commissioner was an agent of Transport for the purposes of s 53 of the ADA in preparing the report under s 12 of the Driving Instructors Act.

3. The Commissioner and Senior Constable Cotton contravened s 7 of the ADA by:

1. directly discriminating against him on the ground of race, in particular on the ground of his speaking English with an accent as a characteristic of race (Perera v Commissioner of Corrective Services [2007] NSWADT 115).

2. treating him less favourably than they would have treated a person without such an accent in the same circumstances or in circumstances which are not materially different.

4. As a result of the discrimination, the issue of Mr Moavenian’s licence was delayed by Transport.

5. In instructing Transport not to approve Mr Moavenian’s licence the Commissioner and Senior Constable Cotton caused, induced, aided or permitted unlawful discrimination by Transport under s 52 of the ADA.

6. He was victimised by the Commissioner and Senior Constable Cotton contrary to s 50 because he had previously commenced legal proceedings against the Commissioner and raised complaints with the AHRC.

19. The undisputed evidence was that Mr Moavenian first applied for a driving instructor’s licence in 2017. On that occasion the licence was refused. As part of that application, Transport notified the Commissioner of Police of the application and Mr Moavenian was interviewed by Senior Constable Cotton for the purposes of providing a report under s 13.

20. The applicant relies on a letter from Transport dated 21 March 2019 in which it was stated that “it will be necessary for you to obtain a satisfactory report from the NSW Police Force” to assist in determining his fitness to hold a licence.

21. The evidence shows that in 2017 when assessed, Mr Moavenian had 5 traffic offences in his 4 years of driving in Australia and received a Demerits Warning letter in September 2017. The applicant relies on comments in and annotations on the report to establish discrimination. In particular:

1. The 2017 report on the applicant by Senior Constable Cotton noted “he is a responsible member of the community had has no criminal history which would prevent his application being approved by the Wollongong LAC” but he “displayed some difficulty speaking English during the interview process and is applying for his Drivers Instructors licence as part of a Refugee Support Organisation”.

2. The report was noted by a senior officer that he was “deemed not suitable after face to face interview… poor traffic history coupled with communication in English language.”

3. The template for the questionnaire to be completed by police did not refer to language skills.

4. In 2018 the applicant appealed the decision to refuse his licence at Wollongong Local Court but was unsuccessful. He then lodged a discrimination complaint against Senior Constable Cotton with the AHRC which was terminated.

5. When Mr Moavenian reapplied in 2019, Senior Constable Cotton noted the above complaint and Local Court proceeding in his report. He also sought legal advice. That advice included that for the reason of his traffic record and “for abundant caution” the licence would not be recommended as it was less than two years of demonstrated compliance with road laws.

6. The report again noted Mr Moavenian “continues to display some difficulty speaking English”.

7. Senior Constable Cotton recommended that he was not suitable to hold a licence at this time as his traffic record does not reflect the ability to act as a role model for inexperienced drivers under his instruction.

8. Acting Inspector Parker noted on the 2019 report that Mr Moavenian was deemed not suitable in 2017 and that he had appealed this decision. He continued “No new information has been supplied by the applicant and his situation does not appear to have changed. Application for Driving Instructors licence is opposed.”

The first respondent’s case

22. Transport for NSW submits that there was no material delay in the processing and issuing of the applicant’s licence and therefore he was not treated less favourably nor suffered any detriment. Even if there were a delay, this does not come within s 12 of the ADA.

23. The applicant’s licence application was granted. The licence application was determined on his character, fitness, competence and propriety to hold a licence. His command of the English language was not a relevant factor. There is insufficient evidence to find or infer that any delay (which is denied) was on the ground of race.

24. The second and third respondents were not acting as agents of Transport. They were performing a statutory function. Section 54 of the ADA provides that anything done by a person necessary to comply with an Act or regulation of a State is not unlawful discrimination.

The second and third respondent’s case

25. The second and third respondents dispute that there was discrimination by the first respondent which could lead to a conclusion that they contravened s 52.

26. They submit that Transport was the ultimate decision maker and was only obliged to take the report into account. In this case the licence was granted contrary to the Commissioner’s recommendation. They dispute that the report contains any discriminatory material.

27. The complaints of victimisation are also lacking in substance because:

1. The recommendation not to grant the licence is not a “detriment” as he was granted the licence

2. There is insufficient evidence to find that the recommendation was made because of any proceedings or complaint made by the applicant.

28. Further the complaint should be declined because it is not in the public interest to take further action and the nature of the conduct alleged is such that further action is not warranted.

Consideration

29. I accept that the first respondent is a qualifying body. The first respondent confers an authorisation that is needed to carry on the occupation of driving instructor. The second respondent does not meet the requirements of a qualifying body, in my view. It provided a report which was considered by the qualifying body. The legislation did not provide that the Commissioner’s report was determinative of the outcome or necessary for the issue of a licence; it stated that it must be taken into account by Transport. Although the nature of the report may have been described differently in correspondence, this does not change the legal nature of the report.

30. This means that the applicant’s claim of direct discrimination against the second and third respondents cannot proceed, as it was cast as a complaint of discrimination in the area of qualifying bodies. It is not necessary therefore to determine whether the references to Mr Moavenian having difficulty speaking English amounted to evidence that he was treated differently on the ground of his race by the second and third respondents.

31. The first respondent, as a qualifying body, did not refuse or fail to confer the licence on the applicant. The applicant relies on s 53 of the ADA therefore, to link the functions performed by the first and second respondents under an agent and principal relationship.

32. Section 53 does not define “agent” or “principal”. The Macquarie Dictionary definition of “agent” is relevantly:

“a person authorised to act on behalf of another”.

33. Sections 12, 13 and 14 do not indicate that the Commissioner of Police was authorised to act on behalf of the Authority. The Commissioner was assigned a function by the statute and his role was limited to that function. He did not represent Transport in any capacity. I am not satisfied therefore that the first respondent is liable pursuant to s 53 of the ADA for any unlawful conduct of the second or third respondents.

34. That being the case, as there is no evidence of direct discrimination by the first respondent against Mr Moavenian, he cannot rely on s 52 of the ADA against the second and third respondents. This is because in order to succeed under s 52, he must show that the second and/or third respondents caused, instructed, induced, aided or permitted the first respondent to do something which is unlawful under the ADA (Carroll v Department of Family and Community Services [2015] NSWCATAD 82; Elliott v Nanda & Commonwealth [2001] FCA 418). In the absence of any unlawful act by Transport, s 52 cannot apply.

35. As to victimisation, the applicant must establish that he was subjected to a detriment by the second and third respondents on the ground that he had made a complaint about their conduct to the AHRC, as the proceedings in the Local Court appealing the 2017 refusal were not made under the ADA.

36. There is no available evidence from which such an inference can be drawn and I am not satisfied that the applicant could succeed in establishing that the respondents subjected him to detrimental treatment because of his complaint.

37. In these circumstances the Tribunal cannot be satisfied that there is evidence of the causation required for the applicant to make out his complaint of victimisation.

38. I conclude that his complaints against the first, second and third respondents lack substance and the conduct alleged in those respects, if proven, would not disclose the contravention of a provision of the ADA. Accordingly it is not fair and just that leave should be granted for the complaints to proceed.

Order

1. Leave for the complaints to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 26 March 2021