Mundy & Chief Minister of the Act and Ors (Discrimination)
[2011] ACAT 86
•19 October 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MUNDY & CHIEF MINISTER OF THE A.C.T & ORS (Discrimination) [2011] ACAT 86
DT 6 of 2010
Catchwords: DISCRIMINATION – strike out application; ACT Civil and Administrative Tribunal Act 2008, section 32 – whether the application discloses cause of action - policy or protocol of the recognition of the Ngunnawal tribe as the only indigenous tribe of the land in the ACT; ‘one tribe policy’ – claim of Ngarigu tribe – unfavourable treatment because of race – Indigenous Protocols – ‘service’ involved in the case of executive policies and decision – standing of the applicant – arguable case on both law and facts
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s.32
Discrimination Act 1991, ss.7, 8 & 20
List of cases: IW v City of Perth (1996-97) 191 CLR 1
Gwyneed County Council v Jones [1986] ICR 833
Waters v Public Transport Corporation (1991) 173 CLR 348
Rainsford v Victoria [2007] FCA1059;167 FCR 1
PW v Royal Prince Alfred Hospital and Ors [2007] NSWADT 31
List of Texts/Papers: Indigenous Protocol (2009) of the ACT
Tribunal: Mr A. Anforth, Senior Member
Date of Orders: 19 October 2011
Date of Reasons for Decision: 14 December 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 6 of 2010
BETWEEN:
ELLEN MUNDY
Applicant
AND:
CHIEF MINISTER FOR THE
A.C.T AND THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
Respondent
TRIBUNAL: Mr A. Anforth, Senior Member
DATE: 19 October 2011
ORDER
The Tribunal orders that:
The Respondent’s application under section 32 ACT Civil and Administrative Tribunal Act 2008 is dismissed.
Sgd for member
REASONS FOR DECISION
Background
The case concerns the claim by the Applicant that the policy or protocol of the ACT Government that recognises the Ngunnawal tribe as the only original indigenous tribe of the land covered by the ACT (the ‘one tribe’ policy).
(a)is wrong as a matter of historical fact; and
(b)unlawfully discriminates against the Ngarigu tribe.
The Applicant is a member of the Ngarigu tribe that she claims to represent she asserts that:
(a)the Ngarigu tribe have a superior claim to that of the Ngunnawal tribe to being the original indigenous occupiers of the ACT land;
(b)the Chief Minister has refused to consider the merits of this assertion and hence has refused to grant the Ngarigu tribe the same recognition as that accorded to the Ngunnawal;
(c)the status as the original indigenous occupiers of the ACT land carries with it certain tangible and intangible roles and privileges in the ACT including the right to provide services to the ACT community and visitors on a remunerated basis;
(d)the recognition of Ngarigu heritage by the ACT Government would carry with it the protection of that heritage in the same manner as presently applies to the Ngunnawal;
(e)the erection of Ngunnawal country signs around the ACT is offensive to the Ngarigu people.
The Applicant asserts that the ‘one tribe’ policy of the ACT Government treats the Ngarigu people ‘unfavourably’ because of their race (s8 Discrimination Act 1991 (the Act)). The unfavourable treatment goes to the issue of the rights and privileges that attend the status of being the original indigenous occupiers. This discrimination is said to have preceded the publication in 2009 of the ACT Government’s ‘Indigenous Protocol’ set out immediately below, but the Protocol embodied and perpetuated the discrimination and has such has become the focus of the present application.
Because the Indigenous Protocol (2009) of the ACT is so central to this case it is convenient to set it out in full:
Indigenous Protocols
ACT Government Policy
The ACT Government recognises the Ngunnawal people as the traditional custodians of the ACT and surrounding region.
The ACT Government's adoption of the use of the term 'Ngunnawal' to identify the traditional custodians of the ACT was based on advice from a special meeting of Ngunnawal community members in May 2002.
Welcome to Country Protocols
Acknowledgement
The Government's policy is that all public speeches by representatives of the ACT Government include an acknowledgement of the traditional custodians. Further, depending on the availability of an Aboriginal community elder, and the significance of the event, a formal Welcome to Country may be offered.
All major official events, where members of the public, representatives of other Governments and/or the media are present, should include a Welcome to Country ceremony. Events in this category may include:
·commemorations and major festivals;
·major launches of Government policies and programs;
·conferences held or sponsored by the ACT Government;
·international events held in Australia of which the ACT Government is an organiser or sponsor;
·citizenship ceremonies; and,
·major and international sporting events.
By incorporating Aboriginal cultural practices/ceremonies into official events we are able to:
·recognise and pay respect to Aboriginal peoples, cultures and heritage;
·communicate Aboriginal cultural practices to the broader community to promote respect and understanding;
·demonstrate that Aboriginal cultures are living through maintenance and practice of ceremonies and protocols; and
·demonstrate recognition of Aboriginal people's unique position which can assist in building relationships and partnerships.
When planning an official event, agencies should consult with the United Ngunnawal Elders Council as the advisory body to the ACT Government on Aboriginal heritage, and 'connection to country' matters. Contact details can be obtained from the Office of Aboriginal and Torres Strait Islander Affairs on 620-70555.
If you cannot arrange for a Ngunnawal elder to attend your event, or if your event is considered too small to warrant a formal Welcome to Country you can make the following acknowledgment:
‘I/We wish to acknowledge the traditional custodians of the land we are meeting on, the Ngunnawal people. I/We wish to acknowledge and respect their continuing culture and the contribution they make to the life of this city and this region. I/We would also like to acknowledge and welcome other Aboriginal and Torres Strait Islander people who may be attending today's event.'
Fee for Service in providing Cultural Services
In providing cultural services such as Welcome to Country, artistic performances and ceremonies Aboriginal people are using their intellectual property. As such providers of these services should be appropriately remunerated.
Appropriate remuneration and/or assistance should be negotiated between the cultural service provider and the agency hosting the event, considering:
·travel to and from the event; and
·public profile of the event.
As a general indicator, $300 for a Welcome to Country is appropriate.
ACT Government Programs
As the ACT Government policy position acknowledges the Ngunnawal family groups as the traditional custodians of the land that the Australian Capital Territory is located, it is appropriate that this position is clearly reflected in all ACT Government programs, services, legislation and activities.
Boards and Committees
All ACT Boards and Committees should seek to include Indigenous membership if appropriate. Where there is particular need to provide advice to the ACT Government in relation to culture, heritage and 'connection to land' matters, representation from the Ngunnawal Aboriginal community will need to be included on the respective board or committee. The representative will need to publicly acknowledge Ngunnawal traditional custodianship of the ACT and must be accepted by the Ngunnawal community.
The United Ngunnawal Elders Council can be of assistance and can recommend suitable candidates for these appointments when requested. Contact details can be obtained from the Office of Aboriginal and Torres Strait Islander Affairs on 620-70555.
Where the board or committee needs general indigenous representation in the ACT; a representative from the wider Aboriginal and Torres Strait Islander community should be sought. The Aboriginal and Torres Strait Islander Elected Body may be consulted to assist with wider Indigenous community representation. Contact details can be obtained from the Office of Aboriginal and Torres Strait Islander Affairs on 620-70555.
The Respondent has applied to strike out the Applicant’s claim under section 32 ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) on the basis that the application discloses no cause of action i.e. the actions of the Respondent pleaded by the Applicant cannot amount to a breach of the Act.
The Respondent conceded for the purposes of the strike out application only that the Ngarigu are a different ‘race’ or ethnic group relative to the Ngunnawal and further conceded that the Indigenous Protocol treats the Ngarigu tribe unfavourably relative to the Ngunnawal. However, the Respondent denies that the unfavourable treatment is unlawful in that it does not manifest in any unfavourable treatment in relation to ’services’ or the provision of ‘facilities’ within the meaning of section 20 of the Discrimination Act 1991 (the Act). It was common ground that the definition of ‘services’ in the Dictionary to the Act includes ‘services provided by a government...’
History of the proceedings
On 12 November 2009, the Applicant lodged an application with the Human Rights Commissioner (T12). The Applicant alleged discrimination on the basis of race in the following terms:
Why do you think the personal attribute marked above was the reason you were treated unfavourably?
I believe I was treated unfavourably because of who I am. I claim to be Ngarigu not a aboriginal and because of this I believe that’s why the ACT and Aboriginal and Torres Strait Islander Affairs minister is treating me unfavourably that he is treated the other aboriginal groups. He has no intention to give me any form of recognition like he has given other aboriginal groups in ACT.
Where did the unfavourable treatment happen?
Myself my family and my language group Ngarigu have been treated unfavourably and ignored and not allowed to participate in meetings and conversation that affect my spirituality, my wellbeing and brings about shame on everyone we have asked the Aboriginal and Torres Strait Islander Affairs Minister for ACT government. To recognise the Ngarigu the Aboriginal Torres Strait Islander Affairs Minister has hired Anne Jackson Nakano to re write history in The Australian Capital Territory. He has set 5 aboriginal organisations except for Ngarigu.
What was the unfavourable treatment that happened to you, who was involved and when did it happen?
I have tried every attempt in a nice orderly manner to approach the ACT Chief Minister and Aboriginal and Torres Strait Islander Affairs Minister. Requesting for recognition. In forms of letters requesting for meetings, injunction orders, and the painting of the Ngunnawal signs, Federal Native Title Claim. All these attempts requesting for recognition for Ngarigu people. My great grandfather ancestral history. Ngarigu history was used to dress up Ngunnawal. Josephine Hood Moth Hunters of the Aust Capital Territory. If the government is going to use Ngarigu history then in respect the Ngarigu descendants should be given recognition. I feel embarrassed about Ngunnawal fabricated history in the Aust Capital Territory.
What effect did the conduct you are complaining about have on you?
I feel very disadvantage because that’s how I am made to feel alienated, very hurt and damaged, offended, isolated Cultural Genocide all over again. I feel very displaced from the rest of society. I feel like I have been silenced, no equal rights. I feel if Ngarigu history and people have been or is being extinguished.
What would you like to have happen in order to resolve your complaint?
We would like a face to face meeting with the ACT Chief Minister and Aboriginal and Torres Strait Islander Affairs Minister. To begin a dialogue for Ngarigu towards recognition and be able to contribute to our culture and land.
The person or organisation complained about has been approached.
If yes, what was the outcome?The Chief Minister and Aboriginal Torre Strait Islander Affairs Minister for the Aust Capital Territory has ignored our letters, phone calls, requesting a meeting with us for recognition in the Aust. Capital Territory.
A complaint has been made to another organisation.
If yes, please give details.I request a meeting also with Local Member of parliament legislative Assembly Mrs Mary Porter office also requesting through her to the Chief Minister and Aboriginal Torres Strait Islander Affairs Minister for recognition.
I feel that the ACT Chief Minister knows he made a mistake, he feels guilty but refuses to acknowledge the Ngarigu as one of the local aboriginal group that occupied the ACT area. I have tried to in many ways to educate the Chief Minister office that we are not a group impostors we are who we say we are the Ngarigu of the Monaro.
I am a co-author of the book 'The Aborigines of the Monaro first edition compiled along with the publication officer Mike Young of the Kosciusko National Park. I have gathered researched history on the Monaro now for at least 15 years. Oral and written history old journals, newspaper clippings, old anthropological, archaeology reports all state the same answers we state.
That the so called Ngunnawal or Ngambri group is just a sub-tribe of the larger Ngarigu dialect boundary. In other words it is a Johnny came lately group made of the people of the surrounding boundary.
These groups are the Gundugarra, Walgalu, Wiradjuri and the Walbanga a south coast tribe. I feel the Ngarigu descendants are being exterminated in the Australian history.
I do feel like the Ngarigu human rights are being denied in the Australian society.
Dr Nicholas Peterson anthropological 1998 report acknowledges the Ngunnawal group as a john came lately sub-tribe of the Ngarigu, with no living descendants. In fact Dr Nicholas Peterson written in his anthropological report that these people who claim to be Ngunnawal people have in fact have a strong history to the Wiradjuri country, documented history as Wiradjuri people.
The Mundy's in whiteman history goes back to early 1800's.
In Ngarigu history we go back to thousands of years of occupation, from our Dreamtime stories, bloodline skin laws and Ngarigu Law & Custom.
The Ngarigu Dialect Boundary Claim is still active in Australian Federal Court and we are confident we will win.
I have been through a case conference in the federal court with the ACT government solicitor Mr Bob Jarvis, told the Registrar of the federal court Mrs Stephanie Kavalaris that the chief minister would be happy to make a agreement with the Ngarigu people the same as the agreement the Act government made with the so called Ngunnawal people.
The second federal Court hearing there was a different government solicitor Mr Derrick Kettle also stated that there be agreement made with the Ngarigu.
The Ngarigu are still waiting for this agreement to come true. It is not looking good for Ngarigu still and it is very confusing and upsetting to hear the chief minister await the decision of the federal court Native Title Claim on local Win television, when has made agreement twice with the Ngarigu people in two federal court hearings.
The complaint was accompanied by the following annexures:
(a)a press release of 3 March 2009 by the Chief Minister (Exhibit A1)(T14);
(b)a letter from Ms J Flood to the Applicant dated 10 April 2003 (Exhibit A2)(T15);
(c)an application to the Supreme Court of 17 July 2003 by the Applicant against the Respondent (Exhibit A3)(T16);
(d)a letter from the Applicant to the Chief Minister of 4 June 2000 (Exhibit A4)(T17);
(e)a documents entitled Preliminary Report To The Chief Ministers Department dated 15 May 2001 by the Applicant (Exhibit A5)(T18);
(f)a 5 page undated submission from the Munji Heritage and Culture Aboriginal Corporation to the Chief Minister (Exhibit A6)(T20);
(g)a letter from the Applicant to the Chief Minister of 7 April 2003 (Exhibit A7)(T21);
(h)a letter from the Chief Minister to the Applicant dated 22 April 2003 (Exhibit A8)(T22);
an extract from a publication by the NSW Native Titles Services under cover of a letter of 10 June 2003 (Exhibit A 9)(T23);
(j)an extract from the NSW National Parks and Wildlife Service Newsletter of Summer 1998 (Exhibit A 10)(T24);
(k)a Press Release from the Applicant dated November 2005 (Exhibit A11)(T28);
(l)three Press Releases from the Applicant dated December 2005 ( collectively Exhibit A12)(T29);
(m)a letter dated 11 December 2007 from the ACT Government Solicitor to the Applicant (Exhibit A13)(T32);
(n)a letter of 23 April 2008 from the ACT Heritage Council to the Applicant (Exhibit A14)(T34);
(o)a letter from the Applicant to Mary Porter MLA dated 27 July 2009 (Exhibit A15)(T35);
(p)a letter from the Applicant to the Hon Mike Kelly dated 28 October 2009 (Exhibit A16)(T36);
(q)a letter from the Applicant to Hon Jenny Macklin dated 28 October 2008 (Exhibit A17)(T37);
(r)a letter from the Applicant to Hon Peter Garrett dated 28 October 2008 (Exhibit A18)(T38);
(s)the Report to the Chief Minister’s Department ‘Ngunnawal Genealogical and Social Mapping Research Project’ by Nicholas Peterson and Felicita Carr of the ANU of August 2008 (Exhibit A19)(T39); and
(t)a press release by the Chief Minister of 19 February 2010 (Exhibit A20)(T40).
On 1 March 2010 the Commissioner advised the parties that she intended to close the file on the basis of her finding that the complaint lacked substance (section 78(2) HRC Act). The Commissioner’s decision was based on the premise that the kind of recognition that the Applicant sought for the Ngarigu people did not fall within the ambit of section 20 of the Act.
10. On 29 April 2010, the Applicant asked that the matter be referred to the Tribunal.
11. On 28 May 2010, the President of the Tribunal referred the matter for conciliation within the Tribunal. The conciliation was not successful.
12. After some abortive attempts the matter was listed for directions before the Tribunal on 15 December 2010. An order was made for the Applicant to file her Statement of Facts and Contentions by 14 February 2011.
13. On 16 February 2011, Mr Rice, solicitor for the Applicant, filed her Statement of Facts and Contentions:
Proceedings
1.This discrimination complaint has been referred to the Tribunal by the ACT Human Rights Commission under Div 4.2A of the Human Rights Commission Act2005.
2.For purposes of s53C of the Human Rights Commission Act 2005 Ellen Mundy is the complainant, and the Chief Minister of the ACT & the Minister for Aboriginal and Torres Strait Islander Affairs is the person complained about.
Contention 1
The complainant contends that she has the attribute of race within the meaning of s7(1)(h) of the Discrimination Act 1991 (`the DA').The fact supporting this contention is that the complainant is an Australian indigenous woman of the Ngarigu language group.
Contention 2
The complainant contends that the Chief Minister discriminated against her within the meaning of s8(1)(a) of the DA.The facts supporting this contention are that:
1.the Chief Minister treated the complainant unfavourably
2. the Chief Minister's treatment of the complainant was because she has the attribute of race, being a person of the Ngarigu language group.
Contention 3
The complainant contends that the Chief Minister is a person who provides services and makes facilities available within the meaning of s20 of the DA.
This contention is a mixed question of fact and law. The facts supporting this contention are that:
1.the Chief Minister is a member of the Australian Capital Territory Executive (`the Executive'): s39 Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACTSGA')
2.the Executive has the responsibility and power to govern the Australian Capital Territory (`the Territory'), including the exercise of relevant prerogatives: ss37(a) and (d) ACTSGA
3.the Executive's responsibility and power to govern the Territory includes the responsibility and power to provide services and facilities concerning but not limited to matters of: civil liberties and human rights; tourism; printing and publishing; Territory land; use, planning and development of land; environment protection and conservation (including parks, reserves and gardens and preservation of historical objects and areas); flora and fauna; water resources; public works; Territory archives; Territory museums, memorials, libraries and art galleries; scientific research; and community, cultural and ethnic affairs: Sch 4; s38 ACTSGA.
The law relevant to this contention is, in addition to ACTSGA:
1. IW v City of Perth (1996-97) 191 CLR 1
2. s4 Discrimination Act 1991 (ACT)
3. s139 Legislation Act 2001 (ACT)
4. s30 Human Rights Act 2004 (ACT).
Contention 4
The complainant contends that the Chief Minister discriminated against her unlawfully within the meaning of s20 of the DA.The facts supporting this contention are that:
1.(a) the complainant sought from the Chief Minister the service of and facilities for protecting and promoting the culture, heritage, language, and artefacts of the Ngarigu people, which are matters for which the Executive has responsibility and power, and
(b) the Chief Minister refused to provide that service or make those facilities available to the complainant, or agreed to do so on terms or conditions which were unfavourable to the complainant, or in a way which was unfavourable to the complainant
2.(a) the complainant sought from the Chief Minister the service of and facilities for recognising Ngarigu people as traditional owners of land in the Territory, which is a matter for which the Executive has responsibility and power, and
(b) the Chief Minister refused to provide that service or make those facilities available to the complainant.
Contention 5
The complainant contends that she has suffered loss and damage because of the unlawful act/s.The facts supporting this contention are that:
1.the complainant is hurt and distressed by the loss of control of her Ngarigu culture, heritage, language
2.the complainant is hurt and distressed by seeing control of Ngarigu culture, heritage, language, and artefacts given to people who are not Ngarigu
3.the complainant has suffered loss through expending her own time and resources to protect and promote her culture, heritage, language, and artefacts in the Territory
4.the complainant has suffered loss through being denied the benefits associated with the Chief Minister's acting to protect and promote her culture, heritage, language, and artefacts
5.the complainant has suffered loss through being denied the benefits associated with recognition as traditional owners of land in the Territory.
Decision sought
The complainant seeks an order under s53E of the Human Rights Commission Act
2005 that:1.the Tribunal is satisfied that the Chief Minister engaged in an unlawful act or in unlawful acts
2.the Chief Minister not repeat or continue the unlawful act or acts
3.the Chief Minister redress the loss and damage suffered by the complainant because of the unlawful act or acts
4.the Chief Minister pay to the complainant an amount by way of compensation for the loss and damage suffered by the complainant because of the unlawful act or acts.
14. The Applicant later provided further particulars of Contentions 3 and 4 setting out the manner in which the Indigenous Protocol treated Ngarigu people unfavourably relative to Ngnunnawal people:
(a)Public acknowledgement in the provision of all ACT government programs, services and activities of the Ngunnawal as the exclusive traditional owners of the whole of the ACT as well as surrounding areas.
(b)Adoption of a policy that all public speeches by representatives of the ACT Government include an acknowledgment of the Ngunnawal as the exclusive traditional custodians of the whole of the ACT as well as surrounding areas.
(c)Implementation and enforcement of the policy referred to in (b).
(d)Advocacy of the policy referred to in (b) so as to encourage its adoption by other governments.
(e)Promotion of "Welcome to Country" ceremonies in recognition of Ngunnawal culture and involving Ngunnawal people:
(i)as a requirement for all major official ACT Government events;
(ii)as something which is encouraged to be undertaken by government agencies and other organisations.
(f)Promotion of the Welcome to Country cultural services of Ngunnawal people to ACT Departments, ACT statutory and other bodies and to other persons or organisations in the ACT.
(g)Promotion of the Welcome to Country cultural services of Ngunnawal people to other governments.
(h)Permitting consultation and participation of Ngunnawal people in the management of Namadgi National Park;
(i)Promotion of Ngunnawal people as traditional custodians of the land that is now Namadgi National Park.
(j)Provision of funding, administrative support and other services to the Ngunnawal Elders Council and its members.
15. The matter was next listed for directions on 9 March 2011. An order was made for the Respondent to file a Statement of Facts and Contentions by 30 March 2011 and for the Applicant to advise a timetable for filing statements from her witnesses.
16. On 12 May 2011, Mr Rice advised that he ceased to act for the Applicant. Ms Kyprianou of Maurice Blackburn, lawyers advised that she now acted for the Applicant.
17. On 30 March 2011, the ACT Government Solicitor filed the Respondent’s Statement of Facts and Contentions:
1.For the reasons outlined in these contentions, the Respondent submits that the Applicant's claim is misconceived and lacking in substance.
Applicant's claim
2.The Applicant alleges that the Respondent refuses to acknowledge the Ngarigu as a local aboriginal group that once occupied the ACT area.
Contention 1
3.The Applicant contends she has the attribute of race within the meaning of s 7(1)(h) of the Discrimination Act 1991 (ACT) ('the Act’).
4.The Respondent agrees that the Applicant is an Australian indigenous woman. The Respondent agrees that indigenous Australians constitute a 'race' for the purpose of the Act.
5.The Respondent does not dispute that the Applicant claims she is a member or descendant of the Ngarigu language group. The Respondent does not accept that membership of the Ngarigu language group (or any language group) is a race for the purpose of the Act.
6. Further, the Respondent does not accept that membership of the Ngarigu language group is:
(a)a characteristic that indigenous Australians generally have; or
(b)a characteristic that indigenous Australians are generally presumed to have.
7. The Respondent says that a claim based on membership of a language group is not an attribute which comes within s 7 of the Act: Gwyneed County Council v Jones [1986] ICR 833 at 836.
Contention 2
8.The Applicant contends that the Respondent discriminated against her within the meaning of s 8(1)(a) of the Act. The contention does not identify any facts upon which she claims she was treated unfavourably because she was a member of the Ngarigu language group.
9.The Respondent says that there is no evidence of 'treatment' of the Applicant.
10.The Respondent says that there is no evidence of how any alleged treatment of the Applicant was unfavourable, having regard to an objective test.
11.The Respondent says that there is no evidence showing a causal nexus between alleged unfavourable treatment and the Applicant being an indigenous Australian.
12. The Respondent says that even if there was unfavourable treatment (which is denied), the alleged unfavourable treatment as a result of membership of the Ngarigu language group is not a matter covered by the Act.
13. The Act is concerned with unfavourable treatment rather than a failure to accord more favourable treatment or alternative treatment. Generally, a refusal to treat a person in a way they desire does not attract the operation of discrimination legislation: Waters v Public Transport Corporation (1991) 173 CLR 348 at 363.
Contention 3
14. The Applicant contends that the Respondent provides services and makes facilities available within the meaning of s 20 of the Act. She does not identify which sub-section of s 20 of the Act she relies on.
15. Contrary to the Applicant's contention, the Respondent says that the question of what services were provided to the Applicant is solely a question of fact. There is no question of law: Rainsford v Victoria [2007] FCA1059;167 FCR 1 at [72] and [75].
16.The expression 'service' has been treated as a word of generality.' It is apt to cover 'any helpful activity'. However, the Applicant must identify the precise service in question. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs: Rainsford v Victoria at [74].
17.The Applicant bears the onus of establishing the precise service in issue.
18.The Respondent contends that the Applicant has failed to identify any relevant service.
19.It is not enough to recite provisions of statutes, as the Applicant has done. The sections do not identify the particular service which has been allegedly refused. The sections in the legislation simply identify a source of power or a function, but not the relevant service.
Contention 4
20.The Applicant contends that the Respondent discriminated against her because she asked the Respondent to exercise powers or make a decision. The matters claimed in paragraphs 1(a), 1(b), 2(a) and 2(b) do not identify any 'service' and do not identify any treatment of her. The claims are misconceived.
21.The Act can only apply to 'services' that are actually provided or contemplated. The Act does not require a person to provide a new, varied or different service.
22.The Act does not impose any obligation to provide a particular service that the Applicant wished to receive: PW v Royal Prince Alfred Hospital and Ors [2007] NSWADT 31 at [33].
23. Further, not every function performed by a public authority involves the provision of a service, particularly where the service concerns the administration of legislation or decision making in the performance of a statutory function.
Contention 5
24. The Applicant contends that she has suffered loss and damage. The claimed loss and damage is not supported by any facts. Further, the claimed loss and damage is not consequent on any of the claims of discrimination.
Decision sought
25. The Respondent says the orders sought by the Applicant are not appropriate and should not be made in the event that the Tribunal finds unlawful discrimination.
26. The Respondent says the claim is lacking in substance because there are no relevant facts. The claim is misconceived as a matter of law because:
(a)the Applicant relies on an attribute which is not covered by the Act, namely membership of a language group;
(b)there is no relevant 'service';
(c)there is no unfavourable treatment on any objective assessment of the alleged treatment.
27. The Applicant's claim should be dismissed.
18. On 25 July 2011 the Applicant filed:
(a)a statement by Dr Harold Koch that addressed the merits of the Applicant’s contentions concerning the original indigenous status of the Ngarigu tribe. The content of this opinion is not of immediate relevance to the present strike out application; and,
(b)her own statement.
19. The Applicant’s statement read:
1.My full name is Ellen Anne Mundy. I am a Ngarigu woman.
2.My family was living in a seasonal camp in Kosciusko National Park at the time of first contact with white settlers in the 1820's. In or around 1820, an early explorer, Angus McMillan, discovered the Ngarigu people in the Wollondibby Corrowong area on the Snowy River and used them as trackers to explore into North and East Gippsland. Prior to this discovery, we roamed within our traditional tribal boundaries and moved between seasonal camps. We left these tribal boundaries only to trade with other tribes and to perform ceremonies. I know this because of the stories I have been told by my family, especially my father and my maternal grandmother.
3.I have traced my family ancestry back to an early Ngarigu leader known as Old Mundy, who I believe was born around 1820. I believe that Old Mundy roamed parts of the Australian Capital Territory ("ACT"). I know this because I have discovered and been shown by my family, many stone arrangements in Namadgi National Park which were used to perform initiation ceremonies by Ngarigu medicine men, of which Old Mundy was one of the last. I am able to recognise these stone formations because of the stories I have been told by my family about which features of the land are important in Ngarigu. culture and because I have been shown some important formations by my family in and around Namadgi National Park.
4.My clan frequently occupied the Corrowong Wollondibby area which is North-West of Jindabyne, but we roamed the whole of the Ngarigu Country. The Namadgi National Park is one of the religious focal points of all the Ngarigu Clans. Tidbinbilla means "when boys become men" in Ngarigu language. The Gibraltar Rocks are a sacred site for men in the Ngarigu Tribe. The red ochre found around Canberra was very sacred to the Ngarigu. There are many more sacred sites in the Canberra region which I do not feel comfortable disclosing. I know about these sacred sites because of my understanding of what land features were important to my people and because of stories told to me by my family.
5.I know that I am a direct descendent of Old Mundy because of my family tree which is supported by relevant birth and death certificates which I have seen. Annexed hereto and marked "A" is a copy of 'Mundy Family Tree' which was prepared by me.
6.In or around 1898 the Delegate Aboriginal Reserve was gazetted. I believe that members of the Ngarigu people including the Mundy's were forced to settle in this reserve. My great grandfather Bobby Mundy, and his family lived in this reserve. Annexed hereto and marked "B" is a copy of a photograph entitled 'The Mundy Family at Mundy Hut Delegate, Monaro Tablelands circa 1910", which shows what I believe to be a picture of Bobby Mundy. I have annotated the photograph with the names of the persons shown therein. The following persons shown in the photograph are also shown in the family tree: Judy Arnott, Joseph Mundy, Joseph Richmond, Bobby Mundy, Bill Mundy, Florae Mundy and Granny T(J)onagri (also known as Sarah Mundy. Florae Mundy and Sarah Mundy are the same people are my direct ancestors and are referred to in the family tree I have prepared and included as Annexure "A" above.
7.Since the passing of Old Mundy, the Ngarigu have maintained a connection with the ACT. I have been told in stories by my father, Claude Mundy that my great- grandfather, Joseph Richmond, roamed through Ngarigu traditional lands, which includes the area now known as the Monaro, the Snowy Mountains and the ACT and performed initiation and other ceremonies. Personally I spend nearly every weekend checking ancient sites at Namadgi National Park. My daughter Jemmy. a Mundy, often accompanies me and I teach her about our history and culture. My brother James Mundy, also visits Namadgi National Park to check on the sites. James consults with National Parks regarding important sites as a member of the Ngarigu Currawong Aboriginal Corporation which is an Aboriginal Registered Organisation. I regularly collect native grass at Tidbinbilla which I use to weave traditional baskets and to make bush jewellery. I used to visit these same areas with my parents in the 1970's. I am planning to hold a women's initiation ceremony at a sacred site in Namadgi this year. This will involve traditional Ngarigu ceremonies and practices. I also regularly organise meetings with elders from other tribes to discuss out cultures and share Ngarigu stories with them.
8.In Aboriginal law and custom, our language boundary is used to define the limits of our tribe and our Country. Each tribe is made up of clans, which are family groups. Annexed hereto and marked "C" are copies of maps which shows the boundaries of the Ngarigu Tribe as described by the following:
a."Map 7. Languages of the south-east, showing occurrence of the final peripheral nasals" in "The Languages of Australia", Professor Robert Dixon (1980), p241;
b."Language groups of south-eastern Australia (After N.B. Tyndale)" in "Moth Hunters of the Australian Capital Territory: Aboriginal Traditional Life in the Canberra Region", Dr Josephine Flood, (1996), p2; and
c."Australia S.E. Sheet: Tribal Boundaries Map" in "Aboriginal Tribes of Australia", Norman B. Tyndale (1974).
9.These maps also show boundaries there were relevant to a native title claim lodged in the Federal Court in 2005. That claim was discontinued on 26 August 2008.
10.The history of the Ngarigu Tribe has been passed onto me, especially by my parents and my maternal grandmother, Ellen Hoskins. I have always taken a particular interest in the history of my tribe and I have done quite a bit of research of my own into the history of our Tribe so as to protect our sacred sites and to prevent our history from being re-written. Under Ngarigu law, my great-grandfather passed on to me inheritance rights to defend our culture, which I have been doing for many years.
11.There are 19 sub-groups which make up the Ngarigu. This includes the Norwich, who are a clan or sub-tribe of the Ngarigu, who roamed the Limestone Plains and the Namadgi and Tidbinbilla area. Ngarigu laws and customs are completely different from other surrounding Tribes. Our initiation ceremonies are different as are our hunting customs, food rules, marriage rules as well as our trade rules. The main Totems for Ngarigu are the eagle and the crow. I know this because I have been told by my family, have conducted my own research into our cultural practices and law
12.I am aware of about 80 to 100 people in the ACT and surrounding areas who would identify themselves as Ngarigu. Specifically I know the following identify as Ngarigu:
a.Margaret Dixon and Joseph Mundy who are my aunt and uncle;
b.Rachel Mullet and Ray Stewart from the Solomon family
c.Diana Davison from the Davison family and;
d.Jacquie Troy who I think is related to the Solomon family.
I know this because I have met some of these people and I am aware of others through family members. While I know that it is almost impossible to prove that people from different families are related to me, I accept them as a part of my tribe as I do not have the right to question other people's blood-lines.
13. In 1993 my sister and I first wrote a letter to the then Chief Minister of the ACT asking for the Ngarigu heritage and culture to be recognised as part of the ACT history. That letter came about because 1993 was the year of the indigenous people and we thought it would be a good thing if our tribe was recognised as one of the traditional owner groups of the ACT. I don't recall ever getting a response from the government to that letter. From then on I have had a systematic campaign to gain recognition for our culture and heritage.
14.I have been actively involved in lobbying with the ACT Government to acknowledge and recognise the Ngarigu people as the traditional owners of the land in the ACT since 1993. As part of my lobbying efforts, I have repeatedly asked the ACT Government to provide services to myself and my people which pertain to recognition of our core and contingent rights with the land.
15.Since 1993 the Government has set up projects and expended public monies to record the history of the indigenous people in the ACT, create genealogies of indigenous families, provide training and job opportunities for indigenous families, provide housing opportunities and provide resources such as the Yarramundi Culture Centre. The Yarramundi Culture Centre was supposed to record the culture and history of indigenous Australians of the local area. None of the services mentioned above have been provided to myself as a Ngarigu woman or any other Ngarigu person I am aware of.
16.I find it offensive to see signs around the ACT welcoming people to the Ngunnawal Country when historically my ancestors were also the owners of this land. At my daughter's school every morning there is an acknowledgment that this school is on Ngummwal land. No mention is ever made of my people the Ngarigu. I find this frustrating and hurtful.
17.There are sites in and around the ACT which have cultural and spiritual significance to the Ngarigu people. These places include Red Hill, the Molonglo Valley, Pialligo certain parts of the suburb of Harrison, the Murrumbidgee River Corridor and Gibraltar Rocks. None of these are currently identified as Ngarigu cultural sites. I know these to be Ngarigu sites because of the reasons outlined above. I also know these sites to be sacred because of my own research and because I have had oral history passed onto me since I was a five-year old by my family. I have continued to attend these and other sacred sites since I was very young.
18.The 'Welcome to Country' formality I also find offensive as in Ngarigu culture we did not engage in such ceremonies. I consider this to be a ceremony held at the request of the white-man which never occurred in Ngarigu culture, not even between elders at ceremonies when tribes met to trade or to hold other ceremonies. My belief is that this did not happen in other Aboriginal cultures in this region either, and that this 'ceremony' has somehow become a service that the government offers, for which they pay some indigenous groups to perform.
19.I have repeatedly written to ACT government departments and successive Ministers providing evidence in the form of academic publications and research connecting the Ngarigu to the ACT and seeking recognition. I am aware that there is an ACT Government protocol which provides that on by indigenous people who identify themselves as Ngunnawal can-contribute to the management and be consulted and the process for certain sites such as Namadgi National Park and Yarramundi Cultural Centre. I have asked to be included on the consultative boards of Namadgi National Park, the Yarramundi Ridge and the Billabong Housing Project, but my requests have been denied because I am not from the Ngunnawal tribe.
20.I believe, for the reasons stated above and my own research, that the Ngarigu have a claim to services which is equal to or greater than that of the Ngunnawal. In refusing to recognise the connection of the Ngarigu to the land which is now the Territory, I believe that the ACT Government has discriminated against me and the Ngarigu people.
20. On 5 August 2011 there was a return of the subpoena issued by the Applicant to the Respondent.
21. On 15 August 2011 the Respondent filed an application under section 32 ACT Civil and Administrative Tribunal Act 2008 for an order dismissing the Applicant’s application. The full text of this application forms Annexure 1 to these reasons.
22. On 18 August 2011 the President of the Tribunal directed that the Applicant file and serve her submissions in response to the section 32 application by 16 September 2011. The matter was listed for hearing on 19 October 2011.
23. On 16 September 2011 the Applicant filed copies of the following documents upon which she relied:
(a) ACT Government Media Release ‘Opening of the Sanctuary at Tidbinbilla’ dated 11 April 2008 (Exhibit A21);
(b) ACT Government Media Release ‘Extravaganza at Tidbinbilla ‘ dated 13 April 2008 (Exhibit A22);
(c) ACT Government Media Release ‘New Signs welcome all to Canberra’ dated 16 August 2008 (Exhibit A23); and
(d) ACT Government Media Release ‘New ACT Government protocols on traditional owners’ dated 16 August 2009 (Exhibit A24).
24. On 19 September 2011 the Applicant filed her Submissions in relation to the section 32 application. The full text of these submissions form Annexure 2 to these reasons:
25. On 7 October 2011 the Respondent filed submissions in reply in relation to the section 32 application which form Annexure 3.
26. On 18 October 2011 the Applicant filed submissions in reply to the Respondent’s submission in reply. The Applicant’s further submissions form Annexure 4 to these reasons.
27. On 17 October the Respondent filed its list of Authorities.
28. The matter was heard on 19 October 2011. Mr Mossop of counsel appeared for the Applicant and Ms Eastman of counsel appeared for the Respondent.
29. At the hearing the Respondent produced a set of T documents which included all of the exhibits referred to above.
30. Ms Eastman opened by defining the issues upon which her case was based, namely:
(a) what is the meaning of the term ‘service’ in section 20;
(b) in what sense did the Respondent’s refusal to grant original indigenous status to the Ngarigu, either together with or to the exclusion of the Ngunnawal bring the matter within section 20(a), (b) or (c). In particular, whether there was refusal to provide a service;
(c) how does the Respondent’s decision not to consider, or to grant, the Ngarigu original indigenous status amount to treating the Ngarigu ‘unfavourably’. (albeit this fact was conceded in the Respondent’s opening.)
31. Ms Eastman submitted that it was important to clearly identify the particular ‘service’ upon which the Applicant’s case relies. It is not sufficient to simply point to a state of dissatisfaction by the Applicant if it does not arise from the refusal to provide a ‘service’ (or the terms upon which the service is provided).
32. Those submissions provided, inter alia:
(a)the term ‘service’ in section 20 takes its ordinary meaning and is not a term of art or law;
(b)it should receive a broad interpretation consistent with beneficial nature of the statute;
(c)just holding a particular opinion that does not manifested in any action involves no service or actionable discrimination.
33. Understandably, much of Ms Eastman’s further submissions centred on the issue of when the actions of public sector agencies can be said to be a ‘service’ to the community and when it is not. A distinction was drawn between legislative, judicial and execution functions of government and the concept of a ‘service’ was confined to executive functions.
34. Ms Eastman took the Tribunal at length through the various judgments in various authorities on the point. With no disrespect intended to Ms Eastman, the Tribunal found the judicial writings to be unclear, inconsistent and couched in such generalities as to convey no helpful guidance to a mere tribunal member.
35. The Tribunal had difficulty clearly understanding Ms Eastman’s final position on when executive functions of government were, and were not, ‘services’ to the community. Her submissions appeared to include:
(a) mere collection of information is not a service;
(b) developing a government policy per se involves no service;
(c) the discharge of a statutory duty by a public sector entity cannot be a ‘service’ to the community;
(d) even if the discharge of a statutory duty is considered to be a ‘service’ to the community generally, it is not a ‘service’ to any particular member of the community that it may personally affect;
(e) the ‘service’ to which section 20 refers is only a specific service to the specific individual.
36. A distinction was drawn between the process underlying an executive decision and the decision itself. The decision itself was said to be a ‘deliberative act’ which was not a ‘service’. There may be a ‘service’ involved in the process that lead to the deliberative act and so any actionable discrimination was quarantined to the process.
37. Ms Eastman submitted that the Act did not permit an attack on the merits of an executive decision simply because the person concerned is unhappy with the outcome. The Act was limited to addressing the manner in which the decision was arrived at.
38. On other occasions Ms Eastman appeared to be putting the proposition that the ‘service’ resides in the implementation of the decision rather than in the process. In one example it was said that there could be no discriminatory conduct in refusing a planning approval as long as the process was non-discriminatory i.e. the ‘service’ resided in the process. The final planning approval instrument was not itself a service and could not itself be discriminatory. Then the example was given of applying for a driver’s license. It was said that there could be no discriminatory act unless and until a decision to refuse the license was communicated i.e. the service in question resided in the final decision to issue, or not to issue, a license. For the purpose of determining where, if at all, the ‘service’ is to be found, the Tribunal does not see any valid distinction in logic between the act of issuing a planning approval to an individual compared to issuing a drivers license to an individual.
39. In the present case, Ms Eastman submitted that the Applicant was seeking to impugn a government policy of general application akin to a lands rights application which was not a ‘service’ for the purposes of the Act.
40. The Tribunal expressed the view that the distinction between challenging the process leading to the unfavourable decision and challenging the unfavourable decision itself, was a matter of semantics. An attack on the process for illegal discrimination under the Act is also an attack on the outcome of the process. When an Applicant attacks a decision, they do not do so in a vacuum. The attack is based on the flawed process and reasoning leading to the egregious decision.
41. The Tribunal expressed the provisional view that in the case of executive policies and decisions generally, the ‘service’ involved is not just the provision of an administrative regime for receiving and processing applications from people (if in fact that is involved at all) but is also the outcome that flows from the implementation of the policy or decision. In the present case the Applicant was complaining of:
(a) the process in the sense that the Respondent is alleged to have refused to even consider her application, whereas the Respondent had considered the corresponding application from the Ngunnawal tribe; and
(b) the outcome in the sense that certain tangible recognitions, rights and privileges flowed from recognition under the Indigenous Protocol.
42. The Applicant’s complaint was that the Respondent’s process and policy directly and specifically related to, and disadvantaged, the Ngarigu tribe. This is not a case of a government policy of general application to the community at large.
43. Ms Eastman took issue with whether the ‘me too’ nature of the application by the Ngarigu people for recognition can trigger the operation of section 20. She said that a complaint that another person is receiving a service cannot constitute ‘unfavourable’ treatment within the meaning of section 8:
Well that’s a very important point, because if the service is being provided to someone else, your complaint can’t trigger section 20, because you can’t complain about services provided to someone else. The Act is only concerned with demonstrating less favourable or unfavourable treatment towards you. So the fact that somebody else has got something that you want doesn’t necessarily mean that there’s been a refusal to provide services to you (T64-10)...because there has to be a service relationship between the complainant and the respondent. There has to be a service provided. (T64-20).
44. To this submission the Tribunal responded:
So, if the ACT government supplies social housing to males, there’s a service relationship, but if the ACT government decides not [to] provide social housing to females, are you saying that that is not a discriminatory act [policy] based on gender within the meaning of section 8.
45. Ms Eastman replied that no breach of the Act could occur unless a female actually made an application for social housing and was refused. She was then invited to by the Tribunal to assume that such an application was made and refused. On that assumption Ms Eastman agreed that the decision to reject her application would be discriminatory within the meaning of the Act but added:
...but I can’t simply sit on the sidelines and say, well, men get housing and I don’t, if I have not been refused that service it’s not a service [for the purposes of section 20]...
46. The Tribunal responded:
Isn’t this what Ms Mundy did? She went to the Chief Minister and said, ‘me too’, to use the colloquial and she said, you do provide a recognition that leads to services...I claim I am entitled to same recognition and ergo the same... services because I am in the same class or of the same character as [the Ngunnawal]...the allegation is that the Chief Minister said, ‘I refuse to consider your application’.
47. Ms Eastman replied that the Respondent did not understand that this was the manner in which the Applicant put her case but in any event the Respondent does not provide a ‘service’ of recognising indigenous claims and so any refusal of the ‘me too’ request cannot be a refusal to provide a service. Presumably, this submission implicitly denied that the existing recognition of the Ngunnawal tribe was a ‘service’ by the Respondent.
48. The Tribunal summarised its preliminary view to the parties follows:
(a)the act of recognising the Ngunnawal tribe was not part of any execution of any statutory duty. There was no such statutory duty. It was entirely an exercise of executive policy;
(b)it was not a policy in the abstract, but was a policy that was carried into execution in a manner that provided for the recognition, rights and privileges set out in the Indigenous Protocol;
(c)it was a policy that was developed and implemented based on assumptions about tribal identity and history and it provided the recognition, rights and privileges exclusively to one racial group (the Ngunnawal) to the exclusion of other tribes;
(d)the present is not a case of the Applicant seeking a service that is not otherwise provided by government, or seeking the creation of a new service just for themselves. It is a ‘me too’ application relating to an existing service that the Respondent has chosen to implement.
49. The issue appears to be whether the gratuitous recognition provided by the Respondent in the Indigenous Protocol and the things that flow from that recognition, constitute a government ‘service’ within the meaning of that definition in the Dictionary of the Act.
50. The Tribunal did not attempt an exhaustive or even an inclusive definition of ‘service’. It took the view that government ‘service’ at least includes doing something for the benefit of all or part of the community that is helpful or advantageous to the recipients and that is not a matter of right on the part of the recipient.
51. An apt analogy is the voluntary recognition of aged persons by the Commonwealth government who are then provided with various concession cards and the like. The question would then arise as to whether this is a ‘service’ to the aged community. To continue the analogy, if the Commonwealth determined to grant this voluntary recognition only to aged males and not to females then the issue would arise under the Sex Discrimination Act (Cwth) as to whether the Commonwealth had unlawfully discriminated on the basis of gender. Notwithstanding this gratuitous nature of the age concession cards.
52. It was sufficient for the purposes of this application to identify the ‘services’ in question that fell within the definition without attempting to more exhaustive. Full argument on the ambit of the definition of ‘services’ can be addressed at the substantive hearing if it is relevant to do so.
53. Those service identified for the purposes of the present application were:
(a) the public recognition of original indigenous status in the Protocol and elsewhere;
(b) the bundle of rights and privileges that followed directly and automatically from the recognition, as set out in the Protocol. These included intangible issues going to tribal and personal identity and self esteem, participation in the political process through the ex officio membership of advisory committees, as well as financial benefits via the right to provide fee for services to the government.
54. The Tribunal identified the unfavourable treatment as the alleged refusal of the Respondent to even consider, let agree to the Applicant’s request for original indigenous status under the Protocol.
55. The Tribunal identified that the unfavourable treatment was quite specifically because of a difference in race.
56. In short the Tribunal found an arguable case on the Applicant’s part that can be summarised as follows:
(a)the Respondent did not have to embark upon the exercise of giving recognition to any particular indigenous tribe. This was an entirely gratuitous executive undertaking by the Respondent;
(b)the Respondent did not have to limit its recognition to one tribe only, it chose to do so;
(c)the Respondent did not have to promulgate the Protocol attaching rights and privileges to recognition, but it chose to do so;
(d)the act of recognition and the rights and privileges that flow from recognition is a service provided by the government to the chosen indigenous tribe (the Ngunnawal) to the exclusion of other tribes;
(e)having chosen to embark upon this course of action, it was incumbent on the Respondent to do so in a non-discriminatory manner which includes treating people in like circumstances in a like manner and without making any assumption based on race;
(f)the Respondent is alleged to have made an assumption based on race and to have refused to review or reconsider the merits of that assumption causing an unfavourable outcome for the Applicant’s tribe.
57. Ms Eastman took issue with the Tribunal’s understanding of the scope of the application before it. It was said to be different in scope from the application referred to the Tribunal by the Commissioner. This was said to raise jurisdictional concerns.
58. The Tribunal found no merit in this submission. The nature of the Applicant’s complaint before the Commissioner was sufficiently clear even though it was framed in her own words as an unrepresented and non-legally trained person. There is no virtue in taking a narrow jurisdictional approach to these matters. It is more important for the Tribunal to deal with the substantive merits of the dispute with only the minimum necessary regard to technicalities.
59. Even if the Tribunal took a narrow view of the ambit of the application lodged with the Commissioner, there would be nothing to prevent the Applicant from lodging a new application with the Commissioner setting out in more precise terms the complaint that the Respondent now objects to. The Commissioner would need to investigate that complaint and presumably the matter would then find its way back to the Tribunal. All that would have been achieved is a waste of time, public resources, the Applicant’s resources and patience and the opportunity to deal with the dispute on its merits in an expeditious manner. There is little in public policy terms to commend this approach.
·the Applicant must do more than point to a service, she must show that the impugned service has been refused, provided on terms or an issue arises about the manner in which the service is provided: see s 20(a) — (c). The Applicant relies only on s 20(a) and s 20(b): see paragraph 55 of her submission.
6.With respect to paragraphs 2 – 8, the Respondent agrees that the Tribunal must be cautious before a complaint is summarily terminated and refers to the principles set out in paragraph 7 of the submission filed on 15 August 2011. In this case, the application will principally turn on whether there is a relevant service. If there is no relevant service, then the complaint must fail on a threshold point. If the Applicant has no prospect of success because a critical pre-requisite to the Discrimination Act is missing – here a service – then it is proper to dismiss the complaint.
7.Contrary to paragraphs 3 and 19 of the Applicant’s submission, the Respondent does not accept that the Tribunal is ‘limited’ in what part of the Application it may dismiss. No authority is cited by the Applicant for this contention. In any event, for the reason explained above, the issue does not arise for determination in this matter.
8.With respect to paragraphs 9,10,12 and 13 of the Applicant’s submission, the Respondent submits that the contentions do not reflect the complaint as referred or the allegations made by the Applicant. These contentions are not supported by any evidence and highlight that the Applicant has misunderstood the nature and purpose of the Discrimination Act. The Act is not a vehicle by which the validity of the recognition of aboriginal groups in the ACT can be tested.
9.With respect to paragraphs 14 – 15 of the Applicant’s submissions, the Respondent refers to the matters set out in paragraphs 1 – 5 above. The Respondent submits that the issue of subpoenas which may be issued should have no bearing on the present application.
10.The Respondent submits that paragraph 17 of the Applicant’s submission is not correct. On this application, the Applicant’s evidence may be treated as its highest but this does not involve the Tribunal making findings about matters which are not on the face of the evidence. Paragraph 17 of the Applicant’s submissions contain contentions of law and conclusions of law rather than being limited to the evidence which may be taken at its highest. The Respondent accepts that the Tribunal may accept:
(a)the Applicant is Ngarigu woman;
(b)for the purpose of this application only, that being of Ngarigu descent or ethnic originis to have an attribute of race;
(c)the Respondent has a policy of exclusive recognition of the Ngunnawal people.
The Respondent submits that paragraphs (c), (e) and (f) are not matters which arise from the evidence and involve contentions of law and fact which are not open to the Tribunal to accept on the state of the evidence.
11.Paragraph 18 of the Applicant's submissions are not correct. The issue is not what the Respondent did; rather the issue is whether the Applicant's complaint and evidence taken at its highest are doomed to fail because the Applicant has no reasonable prospect of success in establishing that she was discriminated against in the provision of a service.
Services
12.With respect to paragraph 20 of the Applicant's submission, the Respondent submits that
the contention that the denial of services to the Applicant is as a result of a discriminatory
policy highlights:
·the significant shift in the Applicant's claim;
·a claim that has not previously been made; and
·a fundamental misconception about the scope or reach of the Discrimination Act, which is concerned with discrimination (as defined by s 8) in the provision of a service, but not with allegedly discriminatory policies.
13.Contrary to paragraph 21 of the Applicant's submission, there has been no claim of discrimination in the provision of a facility. The Applicant's submission fails to elaborate on what 'facilities' she claims were refused or provided on certain conditions.
14.The Respondent broadly agrees with paragraph 22 of the Applicant's submissions but relies on the more detailed analysis in the submission filed on 15 August 2011.
15.With respect to paragraphs 23-25, the Applicant’s focus appears to be on establishing only that there are ‘services’. The Respondent submits that the Applicant has overlooked a fundamental requirement of s 20 of the Discrimination Act, namely that the services in issue must be services which were sought or provided to her. It is not concerned with services at large.
16.With respect to paragraph 26-33 of the Applicant’s submissions, the ‘evidence’ and the contentions fail to disclose a service provided by the Respondent to the Applicant. The Applicant’s contentions are solely directed to publications and announcements. The complaint appears to be directed to the validity of the announcements. The Applicant has not identified any relevant service to her. She does not identify any refusal of a service to her, any terms and conditions on which a service was provided to her or anything touching on the manner in which a service was provided to her.
17.With respect to paragraphs 34 – 37 of the Applicant’s submission, the complaint is directed to speeches made by representatives of the ACT Government. The material set out in this part of the submission is directed to the content of the speeches. The speeches are not clearly identified. It is not apparent whether or when the Applicant heard the speeches. Clearly the speeches were not directed to or made for the Applicant. Again, there is nothing in these paragraphs which points to the provision of a service to the Applicant or that any of the grounds in s 20(a) – (b) of the Discrimination Act apply to her with respect to the speeches.
18.With respect to paragraphs 38 – 44 of the Applicant’s submissions, the complaint is directed to statements made in correspondence between ministers, mayors and heads of departments. The Applicant takes issue with what she considers to be the veracity of the statements made in the correspondence. The correspondence was not directed to the Applicant and she was not a party to the correspondence. It is with respect farfetched to suggest that statements made in correspondence of the kind referred to in these paragraphs constitutes the provision of service to the Applicant. Obviously none of this material engages any of the grounds in s 20(a)-(b) of the Discrimination Act.
19.With respect to paragraphs 45 - 49 of the Applicant's submissions, the complaint is directed to the 'Welcome to Country' protocol. As the Applicant notes at paragraph 45 of her submission, the protocol 'mandates such ceremonies for ACT government organisations'. If this is correct, it does not involve the provision of a service to the Applicant. She also says that the 'Welcome to Country' activities are promoted generally by the ACT Government for other NGOs. Again, at its highest, this may involve the provision of a service to NGOs but does not, on the Applicant's own submissions, involve the provision of a service to her. Again, none of this material engages any of the grounds in s 20(a) - (b) of the Discrimination Act.
20.With respect to paragraphs 50 — 51, the complaint is directed to the Applicant's perception of the result of a policy with respect to the Namadgi National Park. Paragraph 50 makes it plain that the Applicant's complaint is directed to her view about the result of a policy. The description does not involve any relevant service.
21.At paragraph 51, the Applicant contends that the 'provision of cultural recognition and the opportunity to engage in participatory management of natural areas are services for the purpose of the Act'. This contention is a sweeping generalization which has no relevant connection to the complaint, the initial contentions or the evidence. If the complaint is that the Applicant has been denied the opportunity to provide her services to the management of the Namadgi National Park, then the Respondent says:
(a)the Discrimination Act does not operate to provide rights to persons who provide or wish to provide their services. It provides rights only to the recipients of a service;
(b)there is no evidence that the Applicant has any relevant qualifications to participate in the claimed management scheme;
(c)there is no evidence that the Applicant has sought and been refused a service provided by the Respondent with respect to the management of the Namadgi National Park.
22.With respect to paragraphs 52 – 54 of the Applicant’s submission, her complaint is directed to providing secretariat services, meals, ground transport and meeting facilitators to Ngunnawal persons to attend meetings of the United Ngunnawal Elders Council. The Respondent accepts that the description of the activities provided could be described as a ‘service’. They are services which by their nature are provided to a particular group of persons – ie Elders Council because of the person’s membership of the Council. The services are not services provided generally to the community or to all persons. The fact that services were provided to members of a particular group does not mean that there has veen a refusal to provide those services to the Applicant. In this case, there is no evidence that the Applicant sought to be provided with the particular services – secretariat services, meals, ground transport and meeting facilitators to Ngunnawal persons to attend meetings of the United Ngunnawal Elders Council. Again, none of this material engages any of the grounds in s 20(a) – (b) of the Discrimination Act.
23.With respect to paragraphs 55 – 56 of the Applicant’s submissions, the Respondent submits that the claims are pitched in a general way and are not referable to the alleged services identified in her revised Statement of facts and contentions. Paragraph 56 of the Applicant’s submission makes it plain that she is not in fact complaining about the provision of the services to her, as identified in her revised Statement of facts and contentions. Rather, she claims that she should be provided such services because a Ngarigu person should be recognised on the same basis or instead of Ngunnawal people. As the Respondent has submitted on many occasions, there is no obligation on the Respondent to accede to the Applicant’s wishes and the alleged failure to recognise the Applicant as she wishes does not involve the provision of a service as contemplated by the Discrimination Act. Refusing a request is not the refusal of a service.
24.As the Respondent has previously submitted, the Discrimination Act does not require it to provide services which either do not exist or are not otherwise services that are in fact already provided.
20.Contrary to paragraphs 57 - 59 of the Applicant's submissions, the Respondent makes no such allegation. The Respondent does not say that it imposed any condition on the Applicant. It is not clear what point the Applicant seeks to make in these paragraphs or how it is concerned with the alleged refusal of a service. It appears she has constructed a straw man argument because it is premised on an assumption not supported by any of the evidence filed by the Applicant.
26.The Respondent notes that the Applicant has not addressed the contentions with respect to s 8 of the Discrimination Act. The Respondent relies on the earlier submissions.
27.The Respondent seeks an order that the Applicant's application be dismissed.
Annexure 4
1.These submissions are in response to the Respondent's Submissions in Reply ("RSR") dated 5 October 2011.
2.Only certain issues of principle are responded to in these submissions. The fact that a submission in the RSR is not specifically responded to does not involve any concession of the applicant's part.
General
3.The RSR need to be read with caution since they mischaracterise the nature and detail of the applicant's claim (for example, [5], [12], [16], [17],[18], [19]).
Jurisdiction of the Tribunal
4.At RSR [3] the respondent submits that the Tribunal does not exercise original jurisdiction. That is incorrect. The proceedings in the Tribunal following a "referral" under s 53A of the Human Rights Commission Act 2005 ("HRC Act") do not involve a review of the decision of the Commission (cf decisions under the Planning and Development Act 2007 or the Taxation Administration Act 1999). Instead, it involves the referral of a complaint from one executive body (the Human Rights Commission) to another (the Tribunal). The Tribunal is thus seized with the complaint in the same way as the Commissioner was. It is not limited to reviewing a decision of the Commissioner to close the complaint. Rather it must deal with the complaint in accordance with the processes available under the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act").
5.As to the scope of the complaint before the Commission the applicant submits that the complaint clearly identified that it related to the provision of goods services and facilities. The applicant was not legally represented when she made the complaint.
6.The Commissioner could have, but did not, request further information from the applicant in order to clarify the details of the complaint and specifically identify the services in question: see HRC Act s 73, 46(b). The Commissioner chose not to request further information from the applicant. This was presumably because of her view -(expressed in her letter of 1 March 2010 that examination of "executive and/or statutory decisions" was precluded by the decision in IW v City of Perth (1997) 191 CLR 1.
7.Nothing in the statutory framework prevents the applicant from making the claim that she has in these proceedings. The authorities cited at RSR [4] do not support the submissions that the respondent has made.
Particulars and evidence
8.The respondent's submissions (at RSR [2]-[3]) take issue with the provision of particulars of the applicant's statement of facts and contentions and the provision of additional evidence derived from Material produced by the respondent on subpoena.
9.The applicant makes the following points in relation to the provision of particulars dated 6 September 2011:
a. the applicant's Statement of Facts and Contentions identified that the applicant alleged that the respondent had refused to provide services and facilities or agreed to provide them only on unfavourable conditions (Contention 4);
b.the respondent did not seek any particulars of the Statement of Facts and Contentions;
c. it was open to the applicant to, and, in the light of the interlocutory application made by the respondent, appropriate to, provide particulars of the services and facilities.
10.In relation to the additional evidence, this material largely comprises documents produced in response to a subpoena issued by the applicant on 8 July 2011. The production of documents in response to the subpoena took place between 22 July 2011 and 5 August 2011. This includes production of documents by the respondent after the date by which the applicant had been directed to file her evidence (25 July 2011). Therefore it is not appropriate for the respondent to complain about the filing of evidence after the date directed by the Tribunal when it only gave the applicant access to the documents after that date.
Submissions about services
11.The RSR make the following submissions about the scope of the Act in relation to "services":
a."the Discrimination Act ... is concerned with discrimination ... in the provision of a service, but not with allegedly discriminatory policies" RSR [12],
b."The Discrimination Act does not required it to provide services which either do not exist or are not otherwise services that are in fact already provided”: RSR [24].
12.In response the applicant makes the following submissions:
a. A discriminatory policy is plainly affected by the Act in so far as that policy is reflected in the refusal to provide a service or in the terms or conditions upon which a service is provided. For example, a refusal to provide garbage services to householders who do not have white skin could not be immunised from challenge under the Discrimination Act because it involved a policy decision by the government not to provide services to persons who do not have white skin. Whilst the policy decision per se might not be subject to the Act, the implementation of that policy is subject to the Act when it involves refusal to provide services or provision of services on discriminatory conditions. As Brennan CJ and McHugh J said in IW v City of Perth(1997) 191 CLR 1 at 12-13 "the Act is not necessarily inapplicable to a council activity because the council, acting as a deliberative body, makes a decision refusing to provide the relevant service ..."
b. Whilst the Act does not require provision to persons of services that don't exist, it does require that a service that is provided is not provided on a racially discriminatory basis. Thus, in the garbage collection example above, it would be no answer to say that the service was "garbage collection for white skinned people" because that incorporates into the characterisation of the service a discriminatory criterion. So too here. It is not open to argue that the services are "services for Ngunnawal people" and therefore not available to Ngarigu people because that incorporates discriminatory criterion into the characterisation of the service. As Dawson and Toohey JJ said in Waters v Public Transport Corporation (1991) 173 CLR 349 "We do not think that the respondent can evade the implications of s 17(5) by defining the service which it provides so as to incorporate as part of the service what would otherwise be a requirement or condition of the provision of that service". In any event, the identification of the service involved is a question of fact: Waters at 361 which is a matter to be determined at a final hearing.
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: DT 6 of 2010
APPLICANT: Ellen Mundy
RESPONDENT: Chief Minister for the ACT and the Minister for Aboriginal and Torres Strait Islander Affairs.
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A. Anforth
DATE/S OF HEARING: 5 October 2011 PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
Key Legal Topics
Areas of Law
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Indigenous Peoples & Native Title Law
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Discrimination Law
Legal Concepts
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Native Title
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Unjust Discrimination
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Historical Fact
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Indigenous Rights
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