ACT CIVIL & ADMINISTRATIVE TRIBUNAL
Mr M v B (Discrimination) [2017] ACAT 14
DT 5/2015
Catchwords:DISCRIMINATION – direct discrimination – whether unfavourable treatment was because of race – no reasonable and definite inference of racism can be drawn from the circumstances – indirect discrimination – no disadvantage because of race – requirement necessary for health and safety – Briginshaw principle does not apply to the standard of proof – no victimisation
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 38, 39
Discrimination Act 1991 ss 7, 8, 15, 19, 20, 67A, 68
Human Rights Commission Act 2005 ss 53A. 53CA, 53ECases cited:Briginshaw v Briginshaw (1938) 60 CLR 336
CPS Management v The President and Members of the Equal Opportunity Board [1991] 2 VR 107
De Domenico v Marshall [1999] FCA 1305
Ezekiel-Hart v Reis and Anor [2017] ACAT 3
Gama v Qantas Airways Ltd(No 2) [2006] FMCA 1767
Kovac v The Australian Croatian Club Ltd [2014] ACAT 41
Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VR 805
Ralph M Less Pty Ltd v Fort (1991) EOC 92-357
Tadawan v South Australia [2001] FMCA 25
List of
Papers/Texts cited: Attorney-General’s Department, Consolidation of Commonwealth Anti-Discrimination Laws Discussion paper, September 2011
Allen D, Reducing the Burden of Proving Discrimination in Australia, Sydney Law Review Vol 31, 2009, 579
Drawing Inferences of Racial Discrimination, Federal Discrimination Law online
Tribunal: Senior Member L Beacroft
Date of Orders: 6 March 2017
Date of Reasons for Decision: 6 March 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 5/2015
BETWEEN:
MR M
Applicant
AND:
B
Respondent
TRIBUNAL: Senior Member L Beacroft
DATE:6 March 2017
ORDER
The Tribunal orders that:
1. The application is dismissed.
2. A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of any party or witness.
Note
The Tribunal reminds the applicant of the Order of Registrar K Soper, dated 26 July 2016, in relation to documents held by the respondent that the applicant subpoenaed. This Order requires the applicant to “return all copies to the Tribunal registry when the proceedings come to an end” (Order 1(c)).
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
1. Mr M (the applicant) unsuccessfully sought relief for discrimination on the grounds of race, and also relief for victimisation. The application was against B, a small aged care facility (the respondent), which was the applicant’s employer. The applicant also successfully sought an order prohibiting the publication of his name or evidence that might identify him[1], and given the nature of the matter the ACT Civil and Administrative Tribunal (the Tribunal or ACAT) has extended this prohibition to the publication of the name or evidence that might identify any party or witness in these proceedings. The reasons below explain…
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- AGLC
- Mr M v B (Discrimination) [2017] ACAT 14
- Case
- [2017] ACAT 14
- Decision Date
CaseChat Overview and Summary
The Tribunal found that no reasonable and definite inference of racism could be drawn from the circumstances. It concluded that B's actions did not amount to direct discrimination, as there was insufficient evidence to establish that the unfavourable treatment was because of Mr M's race. Furthermore, the Tribunal held that the requirement in question was necessary for health and safety and did not constitute indirect discrimination. The Briginshaw principle was deemed not applicable to the standard of proof for discrimination claims, and the Tribunal found no evidence of victimisation.
Accordingly, the Tribunal dismissed Mr M's application. The Tribunal also issued an order prohibiting the publication of any information that would identify the parties or witnesses involved in the proceedings. The Tribunal reminded Mr M of an earlier order requiring him to return any documents held by B that he had subpoenaed. The Tribunal emphasised the importance of maintaining confidentiality to protect the privacy of the parties involved.
In summary, the Tribunal found no evidence of discrimination or victimisation and dismissed the application. The orders include the dismissal of the application and a prohibition on publishing identifying information, with a reminder regarding the return of subpoenaed documents.
Orders
Orders of the court
The Tribunal orders that:
1. The application is dismissed.
2. A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of any party or witness.
Note: The Tribunal reminds the applicant of the Order of Registrar K Soper, dated 26 July 2016, in relation to documents held by the respondent that the applicant subpoenaed. This Order requires the applicant to “return all copies to the Tribunal registry when the proceedings come to an end” (Order 1(c)).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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