Second complaint - discrimination on the ground of homosexuality
- The second complaint is that the Department discriminated against Mr Carroll on the ground of his homosexuality by failing to act on a complaint of ongoing harassment by Mr Akkbary and other neighbours. The conduct which Mr Carroll says the Department failed to address included:
1. calling Mr Carroll a "poofter", "faggot" and "dog";
2. threatening to bash Mr Carroll;
3. writing "fuck off gays" on common property on three occasions; and
4. chasing Mr Carroll down the street with a piece of wood.
- The Department's response to the allegations that they failed to act on the complaints about these matters was that all the complaints have been considered and investigated in accordance with policy. According to the Department, Mr Carroll has been interviewed more than once and information has been sought from the NSW Police Force. The Department was not satisfied on the basis of those inquiries that there had been any breach by Mr Carroll's neighbours of the tenancy agreement. The Department also asserted that offers have been made to transfer both sets of neighbours and Mr Carroll but no-one has accepted those offers. The Department says that it has discussed the option of participating in a mediation with the Community Justice Centre but Ms Tokdogan has declined that offer.
- Mr Carroll disputes these claims.
- We understand Mr Carroll's complaint to be a complaint of direct homosexuality discrimination in the provision of accommodation. The word "accommodation" is defined in s 4 to include "residential or business accommodation". I have assumed, for the purpose of these proceedings, that Mr Carroll would be able to prove that the Department has not investigated his complaints.
- The Department does not deny that Mr Carroll is homosexual. Consequently, in order to substantiate the complaint, Mr Carroll would have to prove that:
1. the Department denied or limited his access to a benefit associated with accommodation or subjected him to any other detriment in relation to that accommodation; (s 49ZQ(2)(a) or (b);
2. that that treatment was less favourable treatment than that which would have been afforded to a person who was not homosexual in the same circumstances or in circumstances which are not materially different; s 49ZG(1)(a); and
3. that a reason for the treatment was Mr Carroll's homosexuality: s 49ZG(1)(a) and s 4A.
- In this case the so-called benefit which has been denied or the detriment to which he has been subjected is the failure to investigate his complaints about the neighbours. The benefit or detriment must be associated with the accommodation.
- There is a tenancy agreement between the Department and Mr Benton. Mr Carroll is not a tenant. He is an "approved additional occupant". The right to "quiet enjoyment" is one of the rights conferred on the tenant under a residential tenancy agreement. A landlord has a duty to take all reasonable action to preserve the tenant's quiet enjoyment: Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) QConvR 54-485. While the right to quiet enjoyment and other rights under the tenancy agreement are arguably a benefit associated with Mr Carroll's occupancy of the property, it is not clear that Mr Carroll is entitled to a 'benefit' of having a complaint about a neighbour investigated or, conversely that he has been subjected to a detriment if it is not investigated.
- Even if it was a relevant benefit or detriment it is unlikely to constitute discrimination on the ground of homosexuality. The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In relation to the differential treatment part of the test, there is no reference in the President's Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person, who was not homosexual, and identify the circumstances to be taken into account when comparing how the Department treated Mr Carroll and how it would have treated such a hypothetical person.
- In relation to the "causation' part of the test for direct discrimination, there is no direct evidence that Mr Carroll's homosexuality was a reason for the Department not investigating his complaints. As with the vast majority of complaints of discrimination, a causal link between Mr Carroll's homosexuality and the conduct of the Department would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:
". . .
(b) an inference must be reasonably drawn on the basis of the primary facts;
(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;
(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent explanations are available on the evidence."
- There is a dispute as to the facts. The Department asserts that it has investigated the complaints. Assuming for the purposes of these proceedings that those complaints have not been investigated, there is no evidence from which it can be inferred that a reason for failing to do so is Mr Carroll's homosexuality. This part of the complaint lacks substance and it would not be fair or just for it to proceed.