Ratnayake v Bondi Surf Bathers Life Saving Club
[2012] NSWADT 214
•19 October 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ratnayake v Bondi Surf Bathers Life Saving Club [2012] NSWADT 214 Hearing dates: 9 and 17 October 2012 Decision date: 19 October 2012 Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint to proceed is refused.
Catchwords: LEAVE - EQUAL OPPORTUNITY - allegation of race discrimination against surf club - whether club exempt as a voluntary body - whether leave should be granted for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977
Associations Incorporation Act 2009Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388
Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176Category: Principal judgment Parties: Roshan Ratnayake (Applicant)
Bondi Surf Bathers Life Saving Club (Respondent)Representation: No appearance (Applicant)
L Hyde, agent (Respondent)
File Number(s): 121112
REASONS FOR DECISION
Introduction
The issue in these proceedings is whether the Tribunal should give Mr Ratnayake permission for his complaint of race discrimination under the Anti-Discrimination Act 1977 (AD Act) to proceed. The complaint is about the way members of the Bondi Surf Bathers Life Saving Club treated him. Mr Ratnayake is a member of the Club and says that he was refused access to surf craft for training because of his race. He also says that he was subjected to racial abuse and jokes about his black skin and excluded from social activities.
The President of the Anti-Discrimination Board declined the complaint as not disclosing a contravention of the AD Act. The President formed the view that the Club is a "voluntary body" and as such is exempt from the relevant provisions of the AD Act: s 57.
The Tribunal has a discretion to grant or refuse leave for declined complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the conduct, if proven, would not disclose a contravention of the AD Act. I have decided to refuse leave for the complaint to proceed because it is likely that if the complaint went ahead it would be dismissed.
Background
Mr Ratnayake did not appear when this matter was listed for hearing on 9 October 2012. I telephoned him from the hearing room and he said that he had not received any correspondence from the Tribunal. The file contains a copy of a letter written to Mr Ratnayake's address, which he confirmed was correct, advising him of the date and time of hearing. Nevertheless, I re-scheduled the hearing and told Mr Ratnayake the new date and time. The Tribunal also wrote to Mr Ratnayake confirming the new hearing date.
Mr Ratnayake did not appear on 17 October 2012 at 2.30 pm and had not contacted the Tribunal prior to that time. In those circumstances I decided to determine Mr Ratnayake's application for leave in his absence.
Legal basis for the complaints
The Club is registered under the Associations Incorporation Act 2009 and, as such, is a body corporate: s 8. The object of that Act is "to establish a scheme for the registration of associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities".
The complaint is brought under s 19 of the AD Act which states that:
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
Mr Ratnayake says that the Club has refused to provide him with services, namely access to the Craft Room so that he can use surf craft. Mr Ratnayake did not disclose his race to the Tribunal.
Is the club a voluntary body?
There is an exception in the AD Act in relation to voluntary bodies. Section 57 provides that:
(1) In this section, "body" means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include:
(a) a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989, or
(b) a friendly society registered under the Friendly Societies Act 1989, or
(c) a building society or credit union registered under the Financial Institutions (NSW) Code, or
(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or
(e) a registered club.
(2) Nothing in this Act affects:
(a) any rule or practice of a body which restricts admission to membership of that body, or
(b) the provision of benefits, facilities or services to members of that body.
There are three elements which must be established in order for a body to be regarded as a voluntary body:
(1) it must not be established by an Act;
(2) it must not be one of the kinds of bodies listed in (a) to (e)
(3) its activities must be carried on "otherwise than for profit".
The evidence establishes that the club is not established by an Act, nor is it a body of the kind listed in (a) to (e).
The phrase carried on "otherwise than for profit" was discussed by the Tribunal in Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176. In determining whether The Hospitals Contribution Fund of Australia Ltd (HCF) was a voluntary body, the Tribunal said, at [108], that:
... in our view the term 'carried on otherwise than for profit' does not identify a body by reference to its actual financial results each year. It identifies a body by reference to its character. Whether it has a profit or a loss, and whether it calls a profit a surplus and a loss a deficit, the question is "what is its character? Does it have the character of a relatively small voluntary body , the activities of which could be carried on by an unincorporated association of people for purposes of pursing a common interest? The exception provided for in s 57 is, in our view, directed towards such bodies , and that it is bodies with that character that are identified by the term 'carried on otherwise than for profit'.
These words echo those in s 3 of the Associations Incorporation Act 2009. That Act applies to "associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities". The Club is registered under that Act.
I am satisfied on the basis of all the evidence that the Club is carried on otherwise than for profit. Its character is that of a relatively small organisation the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest.
Nothing in the AD Act affects the provision of benefits, facilities or services to members of a voluntary body. Consequently, a complaint about the services provided by the Club to its members falls within the exception in s 57 and is doomed to fail. In those circumstances, there is no need to consider whether or not any of the alleged conduct occurred or whether, if it did occur, it amounts to race discrimination in breach of the AD Act.
Orders
Leave for the applicant's complaint to proceed is refused.
Decision last updated: 19 October 2012
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