COMPLAINANT 201931 v AUSTRALIAN CAPITAL TERRITORY [2021] ACAT 9 | Case summary

COMPLAINANT 201931 v AUSTRALIAN CAPITAL TERRITORY [2021] ACAT 9 | Case summary | Zoe

[28]

The complainant in this matter is a member of the Serbian-Australian community and a participant in the Serbian Orthodox religion. The body of worshippers within St George's Serbian Orthodox church in Canberra (the Free Serbian Orthodox St George in Canberra Diocese for Australia and New Zealand, referred to henceforth as the Free Serbian Church) became divided into two groups with differing loyalties. St George's parish is an association incorporated under the Associations Incorporation Act 1991 (the AI Act). One of the two groups within the Association (the president's group) managed to register a list of office bearers under the AI Act and exclude the office bearers nominated by the other group (the complainant's group), from participation. Administrative oversight of the AI Act is by a Registrar-General, who operates, and whose office operates, within that part of the ACT public service known as Access Canberra.
The complainant lodged a complaint[1] with the Human Rights Commission (HRC) on 1 July 2019 under section 42(1)(c) of the Human Rights Commission Act 2005 (HRC Act), stating that Access Canberra had discriminated against her on the grounds of political convictions, her calling (as spokesperson or advocate for her association), her Serbian heritage, her Serbian Orthodox faith and her association with others of Serbian heritage. The areas of public life in which discrimination were stated to have occurred were in access to an organisation (i.e. the Church association), employment (unpaid work as liaison and spokesperson for the members), and in the provision of goods, services or facilities. The complainant also asserted that she had been victimised because she had made a discrimination complaint. The details are explored later in this decision.
On 27 September 2019 the Human Rights Commission wrote to the complainant and to Access Canberra, stating that the complaint was unlikely to be resolved by conciliation, and that the Commission was therefore closing the complaint under section 78(1)(f) of the HRC Act.[2] On the same day the complainant asked that the complaint be referred to this tribunal, and the Commission made that referral under section 53A of the HRC Act on 1 October 2019.[3] That referral gives jurisdiction to this tribunal to hear and decide the matter under sections 53C and 53E of the HRC Act.
On 17 February 2020 this tribunal ordered that the complainant's name not be published. Accordingly, the complainant in this matter is identified in this decision as "complainant 201931".
For the reasons set out below, the complaint is dismissed.

[29]

The Tribunal held an in-person hearing on 15 and 16 October 2020. Section 53C of the HRC Act provides that the parties to an ACAT proceeding on a discrimination complaint are the complainant and the person complained about. Access Canberra does not have the status of a legal person; it is a business unit of the Chief Minister, Treasury and Economic Development Directorate and may not sue or be sued. For that reason the respondent, in a formal sense, is the Australian Capital Territory, but the decision refers to the organisation with which the complainant dealt on relevant matters as Access Canberra.
The complainant appeared representing herself. and the respondent was represented by Mr Nigel Oram of Counsel. The complainant appeared as a witness and called two further witnesses, namely Mr Ilija Batar and Mr Milos Mikic. The respondent called three witnesses who were employed at Access Canberra at relevant times: Mr Richard Binks, Ms Wendy Harrison and Ms Rachelle Blanch. All witnesses appeared in person, and except for the complainant herself, all provided witness statements. The complainant did not prepare such a statement, but, in accordance with a suggestion by Mr Oram, I will treat the factual material authored by the complainant and included in the abundant material she has provided as elements of a witness statement, disregarding for the purpose of fact-finding material in the nature of submissions. Accordingly, the material the complainant provided on 20 April 2020 is identified as Exhibit A3 and the material provided on 17 April 2020 is identified as Exhibit A4.
The parties have helpfully tendered a paginated bundle of documents agreed between them as the material that is before the Tribunal in this matter. Documents relating to the complainant's HRC complaint are identified as taken from the agreed bundle and by page number. The witness statements and the complainant's statements have been assigned exhibit numbers as indicated in these reasons. The documents relating to the complainant and her exchanges with Access Canberra, making up pages 232-445 of the agreed bundle, are identified as Exhibit A5 and by page number. The complainant tendered an additional bundle of documents during the course of the hearing, identified as Exhibit A6 and separately paginated.

[30]

The issues arising when a discrimination complaint comes before the Tribunal arise out of the interaction between the Discrimination Act 1991 (the Discrimination Act) and the HRC Act. A threshold distinction is whether the complaint alleges direct discrimination, indirect discrimination, or both.
Section 8 of the Discrimination Act defines discrimination. The definition creates two categories, direct discrimination and indirect discrimination. Direct discrimination occurs when a person "treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes",[4] indirect discrimination occurs when a person "imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes".[5] Indirect discrimination does not occur, however, if the imposed condition or requirement is reasonable in the circumstances.[6] Subsection 4A(1) provides that "doing an act includes failing to do the act" and subsection 4A(2) states that an action can have more than one cause, and that a cause remains a cause of that action whether or not it is the dominant or substantial cause. Section 121A says that where a person represents another (as agent or employee), that person's acts are taken to be the principal's acts if the agent or employee was acting within the scope of actual or apparent authority (unless the principal took all reasonable steps to prevent the agent or employee engaging in the relevant behaviour).
The complainant's articulation of her case has generally been in terms that suggest that she is making a claim of direct discrimination, in that she describes various actions that are characterised in ways that could be understood to be "unfavourable treatment" rather than the imposition of a condition or requirement that would disadvantage her. But in one of her submissions the complainant makes two explicit claims of indirect discrimination: at one point the complainant includes the sentence:

[42]

Discrimination matters in the ACT are governed by the Discrimination Act, and complaints are made and responses determined under the HRC Act. The Discrimination Act defines discrimination, lists the kinds of attributes a person can have that can form the basis for discrimination against them by another person, and specifies various areas of public life where discrimination is unlawful. Central to its scheme is section 7(1), which lists 24 protected attributes (including political conviction; profession, trade, occupation or calling; race; religious conviction; and association with a person who has another protected attribute). Section 7(2) provides that each attribute extends not only to a person who has that attribute, but to characteristics that people with the attribute generally have, or are presumed to have, or that the person has had in the past, or is thought to have, or is thought to have had in the past. The dictionary at the end of the Discrimination Act defines 'race' to include ethnic and national origin, and defines 'political conviction' to include having a political conviction, belief, opinion or affiliation, and engaging in political activity, and also not having and not doing those things.
Part 3 of the Act sets out forms of behaviour that constitute unlawful discrimination. Section 10 makes it unlawful for an employer to discriminate against an employee in areas such as offering employment, terms and conditions of employment, or dismissal; the following sections extend that protection to related occupational situations such as partnerships, commission agents and qualifying bodies. Division 3.2 of the Discrimination Act makes discrimination unlawful in a number of other areas, such as clubs, education and accommodation. Section 20 within that Division makes it unlawful for a person providing goods, services or facilities to discriminate in the provision of those goods, services or facilities, the terms and conditions on which they are provided, or the way in which they are provided.
The HRC Act provides the mechanism by which a person can take action if the person thinks they have been discriminated against. Part 4 of the HRC Act deals with complaints. Section 42 sets out a number of different complaints that can be made, including in section 42(1)(c) the making of a complaint about an unlawful act under the Discrimination Act (and section 42(2) makes it clear that such a complaint may relate to two or more protected attributes and to events occurring on two or more occasions). Under Division 4.2 the HRC has discretion to deal with complaints in various ways, including conciliation or referring the matter to a statutory office-holder who in the Commission's view is well-positioned to deal with it.[10] Where the Commission comes to the point where it cannot take a complaint further, it can close the matter, and advise the complainant of the option to require the Commission to refer the complaint to this tribunal within 60 days.[11]
Where a complaint is referred to ACAT, the parties are the complainant and the person complained of.[12] Section 53CA specifies how a discrimination complaint is to be decided and subsections 53CA(2), (3) and (4) read as follows:

[69]

That return must not only include a statement of the association's accounts but also a "statement of particulars" in the form approved under section 126 (which provides for approved forms). The approved form for the annual return (as set out on the Access Canberra website) requires that the particulars include details such as the name, address and other information about the association and its public officer, the association's financial year and when its annual general meeting was held, and the names of the committee members.
Every association is bound by a set of rules, which together form its constitution. The rules govern the operation of the association, covering matters such as membership qualifications, fees, member liability, the association's committee, meetings, funds, and financial year.[17] An association can choose to adopt model rules provided for the use of associations (the model rules are set out in the Associations Incorporation Regulation 1991 - see below), or can replace some or all of those rules by rules of the association's choosing, within prescribed constraints.[18] Amendments to rules must be notified to the Registrar-General.[19] The rules must include a dispute resolution procedure for dealing with a dispute between members or between one or more members and the association.[20] An association's rules bind the association and its members.[21]
The Registrar-General has a largely administrative function focused on maintaining accurate information about incorporated associations on the register. A broader supervisory role is given to the courts (the Supreme Court or the Magistrates Court). A member may, for example, apply to the court to set aside a decision of the association that deprives the member of a right conferred on the member by the rules;[22] the court may also order an association or a member of an association to perform or observe the rules of the association, or enforce the rights or obligations of members between themselves or between an association and a member.[23]
Section 127 allows the Executive to make regulations under the AI Act for specified purposes, including the prescription of model rules. The Associations Incorporation Regulation 1991 provides at section 15 for the model rules, which are set out in full at schedule 1 of the Regulation.

[72]

The association's constitution was adopted on 16 September 1965.[24] It comprises 48 rules dealing with the issues usual in such a document: the objects of the association; membership; meetings; the formation, election and duties of the administrative committee of the association (including two trustees); and financial matters including subscriptions. Rule 37 specifies that the public officer of the association is the president. The papers include what appears to be an amendment to the constitution, although unlike the constitution itself, it is undated and bears no authenticating marks (the constitution itself is signed by a Justice of the Peace and dated).[25] The amendment changes the name of the association from "Eastern Serbian Orthodox Church Community Parish St. George in Canberra Diocese for the United States of America and Canada" to "The Free Serbian Orthodox Church St. George in Canberra Diocese for Australia and New Zealand Incorporated". In a later document there is a reference to the constitution having been unamended since 1967, and that was also mentioned by the complainant, so it appears that the amendment dates from that year; although nothing rests on that point.
The minutes of the 2017 annual general meeting (AGM) of the association, held on 9 April 2017, record the election of a committee for the forthcoming year, with Mr Stevo Ilic as president and the complainant as deputy secretary.[26] An extract from the register of incorporated associations, dated 9 May 2017 and signed by the Registrar-General, lists five committee members for the association, headed by Mr Stevo Ilic, with the complainant as public officer (and possibly, by implication, as a sixth committee member, as she is not otherwise listed).[27] The financial year is listed as ending at the end of the 2017 calendar year, and the most recent annual return as having been provided on 27 April 2017.
An email of 7 December 2017 from the complainant to Ms Heather Kellie, Assistant Manager, Work Safety Licensing and Community Regulation in Access Canberra, brings to Ms Kellie's attention the existence of dissension within the association, reports that an attempt to convene an extraordinary general meeting was refused, and asks for the help of Access Canberra in reinforcing to the association's committee the need for adherence to the constitution.[28] Ms Kellie wrote to the secretary of the association, Fr Aleksandr Popadic, on 7 December 2017, reminding the committee of the provisions of the AI Act that bind the members of an association to the association's rules and give management responsibility to its committee.[29] On 12 December Mr Ilic wrote to the Office of Regulatory Services for the ACT, advising that at the April AGM the then public officer, Mr Radovan Leovic, had not resigned and had not been removed as public officer, and therefore continued in that role; the complainant had been appointed by mistake.[30] Mr Ilic stated that a decision of the "Executive Board" (which, it appears, is intended to mean the association's committee) is needed before an extraordinary general meeting can be called, and no such decision had been taken at the most recent meeting. As a result, no such extraordinary meeting could be held.
Ms Kellie wrote again, this time to Mr Ilic, on 15 December 2017 reminding him of some of the rules in the association's constitution, including rule 37, identifying the public officer as the president; rule 17, which allows a third of the members (or more) to call a special assembly; and rules 18, 19, 20 and 21, which govern participation in and voting at such a meeting.[31]
A notice dated 25 December 2017 called for an extraordinary general meeting to be held in the church hall on on14 January 2018.[32] The notice was signed by the complainant as public officer and assistant secretary. The focus of the meeting was described in a way that suggests that the church community was divided in its opinion regarding the appropriate diocesan affiliation of the church in Canberra. A record of the extraordinary general meeting lists one special resolution and three ordinary resolutions, all of which were passed by the meeting.[33] The special resolution dealt with the diocesan affiliation of the church of St George in Canberra, as foreshadowed in the notice of the meeting. The three ordinary resolutions were a vote of no confidence in the current committee and its president; a spill of the committee; and a decision that an interim committee should be elected to manage the association until an AGM could be held. Four people were elected to form the interim committee, including the complainant as secretary.
A Change of Public Officer Particulars form signed by Mr Ilic and dated 5 January 2018 records that as of 3 January 2018 the public officer for the association was Mr Ilic.[34] In a letter dated 5 December 2018 (presumably in error, intending 5 January 2018) Mr Ilic wrote to Access Canberra advising that an "extraordinary church committee meeting" had been held on 3 January 2018.[35] The meeting had removed the complainant as public officer and had substituted Mr Ilic in that role "until AGM in February 2018". An extract from the Register of Incorporated Associations, dated 8 January 2018, and signed by the Registrar-General, records the same committee for the association as that of 9 May 2017, except that the complainant's name is now missing, and the public officer is listed as Mr Ilic.[36]
A "Change of Committee Particulars" form signed by Mr Ilic and one other committee member and dated 25 February 2018, reports a new set of committee members and lists ten outgoing committee members, but without the signature of any of the outgoing members.[37] The date of the change of membership is given as 12 January 2018. An annual return for the association, signed by Mr Ilic as public officer and two other committee members and dated 25 March 2018, is accompanied by an audit report and a statement of income and expenditure.[38] The annual return does not identify a date on which an AGM was held, but records that the accounts were presented to a meeting on 18 February 2018. Eight members are listed as current members of the committee, each identified only as "member" (i.e. without an office for each being identified), and these names correspond to those listed on the "Change of Committee Particulars" form. A further extract from the Register of Incorporated Associations, dated 26 March 2018, lists the eight members listed in the annual return as the committee members of the association, with Mr Ilic again identified as public officer.[39] (There is a further extract from the Register, dated 27 March 2018, which lists nine committee members; one member's name has a corrected spelling, and one name appears twice with one letter different in the two appearances).[40]
In one of her submissions, the complainant states that she contacted Ms Kellie by telephone around mid-February 2018, advising that the AGM that had been projected to be held on 4 February had not taken place, and warning that an annual return containing incorrect information might come forward.[41] The complainant states that Ms Kellie was aware of the possibility and would alert her staff. In the same document the complainant states that she spoke to Ms Kellie by telephone on 20 April 2018, having just discovered the annual return registered on 26 March. The complainant states that Ms Kellie was not at that time aware of what had occurred.

[74]

The registration of a new committee by Access Canberra was the start of a protracted exchange between that organisation and the complainant, as she attempted to persuade Access Canberra to change its decision to accept the annual return. On 27 July 2018 the complainant sent an email to Ms Kellie outlining what she saw as the failures of the committee as led by Mr Ilic to follow the process set out in the AI Act: in particular, that no AGM had been held, the audited accounts had not been presented to the members, and the committee members had been identified only as members and not by assignment to the offices of the committee.[42] The complainant also stated that an extraordinary general meeting had been duly held on 14 January 2018, not in the church hall, which the president had obstructed the use of, but on an oval across the road, adopting a unanimous special resolution, which the new committee had ignored. Subsequently, a further request for a "special assembly" (the term used in the association's constitution for an extraordinary general meeting) had been made, in May 2018, and that, too, had been ignored (the request, with 36 names, was attached to the email). The complainant had also obtained the assistance of a lawyer from the legal firm Meyer Vandenberg, who had written to Mr Ilic as public officer on 3 July 2018 noting that no special assembly had been held, despite the request for one, asserting that the committee was in breach of the AI Act, and requesting that a special assembly be held within a week. The complainant's email asked that Access Canberra deregister the committee, disqualify the members from any similar office, and arrange to have an AGM called and held by the end of August 2018 under the supervision of Elections ACT.
The complainant submitted a further "Change of Committee Particulars" form to Access Canberra, signed by herself and Mr Ilija Batar on 5 September 2018, listing four committee members as current (including the complainant and Mr Batar) and including the eight members of Mr Ilic's committee as outgoing committee members.[43] An accompanying letter signed by the complainant asserts that the members of the new committee were appointed at the extraordinary general meeting held on 14 January 2018 and notes that no signatures from the outgoing members had been obtained. At the same time the complainant submitted a 'Change of Public Officer Particulars' form listing Mr Batar as public officer, and an annual return form.[44] An email to Ms Kellie dated 6 September 2018 provides supporting information regarding the association members and numbers, including details of those voting at the January extraordinary general meeting.[45] The email arrives at a count of 90 for the number of association members (by a process of adding and subtracting individual members some of whom had died and others who, the complainant asserted, were no longer eligible to cast a vote). The email attached a complete membership list and a list of members, with signatures of those who voted at the January meeting. In the email the complainant asserted that the number of those voting constituted a quorum (which, by the constitution, is 50% for an extraordinary general meeting).
An email of 7 September from the complainant to Ms Kellie reports that a letter had been handed out during a service at the church on 14 January 2018, the same day as the extraordinary general meeting.[46] The letter, in Serbian, is attached to the email. It appears to come from the Diocesan Executive Board of the Free Serbian Orthodox Church and, according to the complainant, it purports to expel 43 members of the association. An email of 10 September 2018 from the complainant to Ms Kellie serves to forward to her a number of documents, including a certificate of title showing the association as holding title to the church land; a translation of the letter from the Diocesan Executive Board; documents purportedly demonstrating the autonomy of parishes within the Free Serbian Orthodox Church; and an extract from a judgment of the NSW Supreme Court.[47] In the translated letter dated 12 January 2018 (the translation does not appear to be certified) the Diocesan Executive Board dissolves the association committee, replaces it with the committee that was registered by Access Canberra on 26 March 2018 and expels 43 people (including the complainant) as "signatories of the illegal petition" (meaning, it appears, the petition for an extraordinary general meeting). The Diocesan Executive Board explains the decision by reference to the constitution of the Church and several paragraphs from the judgment of the NSW Supreme Court (White J). It is from that judgment, in Bishop Irinej Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (Irinej),[48] that the complainant included an extract. The judgment deals mainly with a monastery at Wallaroo, just outside Canberra in NSW, but paragraphs [288]-[293] refer to the parish of St George and to events there in 2007 and 2008.
An email from the complainant to Ms Wendy Harrison, one of Ms Kellie's colleagues in Access Canberra (Ms Kellie is copied in), states that she has found a Serbian language newspaper article from 2008 reporting an attempt to register a "rogue" committee by some members of the association; the attempt had been thwarted when Access Canberra had investigated and had overturned the initial registration and replaced it with registration of the committee elected at the AGM.[49] No copy of the article appears in the papers. In other documents the complainant sought to access some of the documentation that had been provided to Access Canberra in 2008 but could not because the letter was considered to be private by Access Canberra staff.[50] It appears that the complainant lodged a freedom of information (FOI) application for the relevant document or documents.
On 3 October 2018 Ms Kellie wrote to Fr Popadic as secretary of the association, reporting that a complaint had been received to the effect that the association was in breach of the AI Act and of its constitution.[51] The particulars of the complaint were reported as including:

[79]

The letter asked that the association provide a list of members and date of joining; minutes of the general meeting held on 18 February with details of attendees, agenda, matters discussed and decisions; and a list of current committee members with assigned offices. The letter also informed Fr Popadic of the "Change of Committee Particulars" form received on 5 September, and notes that the information sought from the association will help in the decision whether or not to accept the form for registration.
On 9 January 2019 Ms Kellie sent an email to the complainant referring to the "Change of Committee Particulars" form provided to Access Canberra on 5 September 2018 and asking for documentation to assist in making a decision about registering the form.[52] The additional information sought comprised the notice to members about the extraordinary general meeting on 14 January 2018, copies of resolutions tabled at the meeting, and an agenda. On 15 January 2019 the complainant replied providing a detailed account of events and explaining in particular why there was a lapse of about eight months between the extraordinary general meeting in January 2018 and the submission of the "Change in Committee Particulars" form in September.[53] The complainant attached the agenda, notice and record of the resolutions.[54]
In March 2019 there was a series of emails from the complainant asking whether the decision regarding acceptance of the Change of Committee Particulars had yet been made.[55] On 1 April 2019 Mr Giuseppe Mangeruca, delegate of the Registrar-General, made a decision to refuse to accept the form.[56] The attached reasons for decision state that the constitution of the association does not provide for removal of committee members during their appointment; the model rules that therefore operate to govern such matters allow for removal, but section 50 of the AI Act requires that in the adjudication of disputes within associations the rules of natural justice must be observed; and that the absence of signatures of outgoing committee members suggests that in that respect section 50 of the AI Act had not been complied with. The Registrar-General therefore exercised the discretion to refuse to accept the form.
A letter from Ms Denise Cubin, Executive Branch Manager, Licensing and Registration at Access Canberra, dated 24 May 2019 reports that the complainant had met with Access Canberra personnel on 2 April 2019, and had asked that the decision to register the annual return, submitted in March 2018 and registered on 26 March of that year, be reconsidered.[57] The letter states that discretion is allowed the Registrar-General with regard to whether or not to register a document; that not enough information was available in March 2018 to satisfy the Registrar-General that he should refuse to register the return; and that after more than a year it was likely that people had relied on the registration.

[80]

As noted above, the complainant did not herself provide a witness statement, but two of her submissions, in particular (Exhibits A3 and A4), include various factual statements. She gave oral evidence and was cross-examined. Her evidence-in-chief largely repeated the facts summarised above from the documentary evidence, and often included additional detail. The complainant said she was elected to the committee as deputy secretary at the AGM on 9 April 2017, but the next day the public officer stood aside and the complainant was asked to take on that role, and she agreed. She was then involved in submitting the annual return to Access Canberra; on the first attempt the form omitted one piece of information, namely the number of members of the association. On the basis of an understanding that the number was somewhere between 110 and 140, the complainant put forward the number as 120.
Later in the year, tensions began to build within the committee and in the Church community. The complainant presented these tensions as arising from competing views about the orientation of the Church in Canberra, and also from what she described as the president's dictatorial and high-handed style. One point of tension was the presence of members who did not come from Canberra or the surrounding area but from further afield (such as Sydney and Wollongong). Tensions culminated in the events of late 2017 and January 2018. The complainant said she had contacted Access Canberra to ask that a letter be sent urging the association and the committee to abide by its constitution and the AI Act.
The complainant circulated the petition for an extraordinary general meeting in late December, and drafted (in Serbian) an agenda for the meeting, inviting just under 100 members (she had by this time assembled a member roll). Meanwhile the president had made himself public officer (from 8 January 2018) in line with the constitution but without taking a vote or consulting with the association's members. The day of the extraordinary general meeting, 14 January 2018, was a Sunday, and at the church service that day the letter from the Diocesan Board in Brisbane had been circulated, listing 43 members of the association as having been expelled. The intention of the complainant was to proceed with the meeting, but the president attempted to block it by calling the police in to prevent use of the church hall, and the meeting had been held instead on the oval across the road. The number of participants at the meeting, according to the complainant, was 43 with a further 20 or so who did not vote. Many voting attendees wanted to replace the committee and freeze the accounts; the complainant said she opposed this because she was expecting an AGM on 4 February at which matters could be resolved through normal voting processes.
Towards the end of January one of the complainant's associates, Mr Mikic, spoke to a friend who was in the president's group and reported back that paperwork was being completed for a new committee, and suggested that Access Canberra should be alerted. The complainant said this had prompted her to ring Ms Kellie, warn her that no AGM had been held, and suggest caution if the association put forward material to Access Canberra for registration.
In April 2018 the complainant learned that the new committee had been registered, and confirmed that with Ms Kellie. She engaged Meyer Vandenberg to assist and attempted to get another AGM convened, but without success. Eventually Access Canberra responded to her efforts, and on 24 September sent an email agreeing to follow through on her complaints, obtain documents from the committee and undertake a compliance check.[58] She was told to wait three weeks for an outcome. But in fact things just went on without result, although she continued to talk to Access Canberra and pressure staff to take action. In November Ms Kellie and another staff member spoke to her about the need to find a translator for the letter in Serbian from the Diocesan Board; she provided the name of a NATA translator. She was told advice had been sought from the ACT Government Solicitor. Despite all the back and forth, a decision was not made until 1 April 2019, and that decision was adverse.
Under cross-examination, the complainant confirmed that in April 2017 there were between 110 and 140 members of good financial standing, so she had estimated the number at 120, but she had later arrived at the number of 98 members by leaving out 23 members who were from Sydney and elsewhere away from Canberra. That was the number at the time of the meeting on 14 January 2018. She had not thought it appropriate to allow the 23 people who were left out to vote at the meeting, although she admitted that they were financial members.
The complainant also said that she thought that the material for the extraordinary general meeting had been in Serbian at the time. She had drafted the agenda and the resolutions, which had been in handwritten form. When she provided them later, at the request of Access Canberra, she had translated them herself. At the time her expectation had been that they would elect perhaps four new members to the committee on a pro tem basis and the AGM on 4 February would allow elections to be finalised. There had been discussion for some months, but no detailed planning for the replacement of the committee. The letter from the Diocesan Board had encouraged the action that was taken at the meeting.
The complainant was asked about her conversation with a staff member of Access Canberra who she identified only as "Richard", taking place on 23 November 2018. There had been an exchange about the need to get a certified translation of the letter from the Diocesan Board, although two translations - one by the complainant and the other by the president's group - were already available. Although she had encouraged the use of her translation, her main point had been that the decision to be taken by Access Canberra did not rest on the contents of the letter. She denied having been told that the investigation had failed to identify any breaches of or offences against the AI Act. There was an exchange regarding a passage in one of the complainant's submissions: "...their suggestion was that 'my people/my kind' are always in conflict, distress and turmoil".[59] Under questioning the complainant conceded that this was what she had understood or taken from her exchanges with Access Canberra, and not words that had been used by any of that organisation's staff or a meaning that had been directly or explicitly conveyed to her.

[82]

Mr Binks acted as Deputy Director of Licensing and Registrations at Access Canberra from 27 September to 21 December 2018. In that capacity he had some engagement with the complainant and especially with her attempt to secure the registration of the change in committee. In his witness statement Mr Binks recalls receiving a telephone call from the complainant and discussing with her the difficulties that Access Canberra had faced in finding a translator for the letter from the Diocesan Executive Board.[60] Mr Binks recalls that the complainant was frustrated and upset at the slow progress. His side of the conversation was explaining the process and noting that the competing interests within the association were making arguments to Access Canberra along lines similar to those of the complainant. In late October the name of a translator was identified with the assistance of the Serbian Embassy; the complainant also nominated a translator. Mr Binks states that by the end of November a translator had been engaged and a translation was expected within a week.
At the hearing, under cross-examination, Mr Binks explained the difficulties in finding a translator for the letter in Serbian. A variety of avenues had been explored, but all proved to be aligned on one side or the other of the dispute within the association. He acknowledged that a translation was already available - indeed one from each side - but said that he wanted a third to benchmark the other two, noting that legal decisions can turn on a word. When asked about the details of the dispute, the reasons why it had taken so long to identify a translator, and the relevance or potential relevance of the letter in Serbian, Mr Binks either could not recall or did not know. He saw his role as collecting information to go to the Regulatory Advisory Committee, an Access Canberra body that advised on regulatory decisions. Because of the structure of arrangements within Access Canberra, he had lost sight of the issue once the letter had been passed to the translator.
Mr Binks saw the critical point for Access Canberra as the existence of strongly divided views within the association, with each side accusing the other of unconstitutional behaviour. Whatever decision was taken, one side or the other would feel aggrieved.

[83]

Ms Blanch has been an Assistant Director in the Licensing and Registrations part of Access Canberra since January 2019. Her witness statement is at Exhibit A2. Ms Blanch was involved with the complainant's case for registration of the Change in Committee Particulars form (originally submitted by the complainant on 5 September 2018) from January 2019 up to and including the decision to refuse registration of the form on 1 April 2019 and the meeting with the complainant on the following day. Ms Blanch said that because she was also responsible for assembling a chronology of events for the hearing, she had contact with a good deal of the earlier correspondence in the matter.
Ms Blanch stated that the role of her unit in Access Canberra involved scanning the information submitted by associations, to check completeness, legislative compliance and consistency with existing information. Provided it meets those tests it is likely to be accepted without further question. A Change of Committee Particulars form will be scanned to ensure that it has been appropriately signed, and if so, it is likely to be taken to be correct.
Although she was not part of the same Access Canberra office in March 2018, Ms Blanch said that, looking back, there was nothing on the face of the annual return that was registered on 26 March 2018 that would have led her to question whether the form should have been accepted.
The delay in coming to a decision on the Change of Committee Particulars form submitted on 5 September 2019 arose because of the particular complexity of the issue. The matter needed to be considered by two separate units within Access Canberra, which do not operate on a shared database. The volume of documents involved, the number of contacts within the relevant units who had been involved, the number of meetings required, and the need for legal advice all contributed to making the process more complex and drawn out. The complainant added to the complexity with FOI requests and letters to the Minister, all of which took time away from resolving the issue.
Ms Blanch asserted that Access Canberra staff have at all times in their dealings with the complainant acted with respect and without discrimination in respect of the complainant's Serbian heritage. Ms Blanch repeated the account given by Mr Binks regarding the difficulty of finding a Serbian translator.
Under cross-examination Ms Blanch acknowledged that the forms submitted by the complainant in September 2018 included both a completed annual return form and a completed Change of Committee Particulars form. Although she had significant involvement in preparing materials and a chronology for the present hearing, Ms Blanch said she had limited personal involvement in most of the events recorded. She did have some involvement in the decision of 1 April 2019 and the meeting that took place on the following day, but was not herself a decision-maker in the process.

[84]

Ms Wendy Harrison is Assistant Director in the Investigations, Compliance and Enforcement part of the Fair Trading and Compliance Branch of Access Canberra, and held that position at all times material to the present matter. Her witness statement outlines the role and nature of the investigations area, especially with regard to complaints by consumers.[61] Ms Harrison emphasises the degree to which each investigation varies in accordance with judgements about risk (e.g. to consumers) or the potential to affect the disadvantaged or vulnerable, and the way in which the powers of Access Canberra in each instance vary according to the legislation governing the particular matter. In the case of matters under the AI Act, Access Canberra's powers are limited because the legislation leaves members of an association with the power to manage their own affairs, including by taking action in the Supreme Court to resolve internal disputes.
In the case of the complainant's compliance complaint, Ms Harrison says that she formed the view that at the heart of the matter was a difference of view among members of the association over issues such as the adherence of the Church to particular diocesan structures and whether people living well outside the Canberra region were eligible to be members of the association. These differences had led to competing attempts to secure the support of the association for one or other position. Because the complainant was in frequent contact both with Ms Harrison's own team and with at least one team elsewhere in the Access Canberra structure, it was difficult at times to know who had the lead and who held all the necessary information.
Ms Harrison says that her unit received the complaint on 21 August 2018. She recounts a meeting with the complainant on 5 September 2018, at which she and a colleague advised the complainant that although Access Canberra could intervene in a matter if there was reason to believe that offences had been committed against the AI Act, there was no basis for intervention if the problem was that members of the association had acted in breach of their own constitution. A dispute of that kind should be resolved by an application to the Supreme Court. Access Canberra undertook, however, to write to the association to raise the breaches asserted by the complainant and to ask for various documents.
Ms Harrison recalls that the complainant was proposing to lodge a "set of documents" with Access Canberra, including a list of committee members. Her team examined the documents later submitted by the president's group, but did not identify any breaches of the AI Act.
Ms Harrison says that none of the staff in her part of Access Canberra acted towards the complainant with anything other than courtesy and professionalism. Any delay in dealing with the complainant's matter she attributes to the complexity of the issues and to resourcing pressures.
In oral evidence, under cross-examination, Ms Harrison explained in more detail the powers available to Access Canberra in investigation and enforcement, and the kind of factors that influence how the energies of her team were allocated. She said that the cost to Access Canberra was generally not a major factor in these choices. Ms Harrison said that she recalled discussion relating to the registration of the new committee in March 2018, but had had no involvement herself; nor was she involved with the obtaining of legal advice and the formulation of the advice to the Registrar-General leading to the decision of 1 April 2019.

[88]

The procedures a tribunal follows are less formal than those of a court, but the above requirements seem to me to apply with almost equal force in a tribunal as in a court. Yet it is apparent that the complainant's case has been less than a model of precision and clarity. The respondent's submission to the Tribunal, dated 13 March 2020 and broadly equivalent to the pleading before a court, analysed what had come forward at this point from the complainant, concluding that "it is not clear to the Respondent what case it is that it must respond to", and foreshadowing an application to have the matter struck out unless the complainant submitted material that clarified the particulars of the application.[64] The complainant subsequently provided additional material, but it would be exaggerating to suggest that all ambiguity and uncertainty accordingly disappeared. The hearing proceeded, however, and the respondent made no motion to strike out.
A further reason why in a discrimination matter in the ACT the complainant must clearly articulate a case relates to the structure of section 53CA of the HRC Act. That section lays out the way in which the onus lies on the parties: the complainant, to succeed, must establish unfavourable treatment or disadvantage resulting from an imposed condition or requirement (depending on whether direct or indirect discrimination is asserted), and advance sufficient evidence that the treatment or disadvantage is caused by the protected attribute or attributes to persuade the Tribunal, in the absence of any other explanation. The respondent, to succeed, must advance evidence that rebuts any case the complainant has made by showing, where the complainant has established the rebuttable presumption that discrimination has occurred, that any unfavourable treatment or disadvantage had some other cause. The respondent's obligation to rebut extends to, and not beyond, the case the complainant has made; the respondent has no obligation to rebut a case that was available to the complainant but not articulated.
The complainant in the present matter is self-represented and untrained in the law. Her difficulty in articulating her case with any kind of precision was apparent. With a certain amount of prompting she was able to identify elements that make up her case, and others are discernible in her written submissions and closing argument. I am obliged by section 4AA of the Discrimination Act to construe that Act beneficially to the complainant to the extent that it is possible to do so consistently with the objects of the Act and with the Human Rights Act 2004; but that obligation does not extend to identifying a case that has not been made. On that basis the elements that are identifiable in the complainant's case are considered and determined in what follows, in the order outlined earlier in the Issues part of this decision. And, as noted earlier, much of the evidence advanced by the complainant provides limited assistance to her case.

[90]

The complainant claims to have five protected attributes under section 7 of the Discrimination Act, namely association with another person who has protected attributes (paragraph 7(1)(c)), political conviction (7(1)(n)), profession, trade, occupation or calling (7(1)(p)), race (7(1)(q)), and religious conviction (7(1)(t)).
It is not at issue that the complainant is from the Serbian community and the Serbian Orthodox religion. The complainant at the hearing wished her religious affiliation to be considered from the point of view that church associations in general are regarded and treated in particular ways - that is, it is not her specific religion that she saw as the protected attribute but the more general designation of the association as a church association. Although I have attempted to view matters from that perspective in what follows, I do not think that leads to assignment to a different protected attribute. I accept, therefore, that she has the attributes of race and religious conviction. It cannot be reasonably disputed that the complainant associates with other members of the Serbian community and members of the Serbian Orthodox religion. I therefore accept that she has the attribute of association with another person who has protected attributes.
The respondent questioned whether it was reasonable to identify the complainant as having the attribute "profession, trade, occupation or calling", as that attribute is usually associated with employment and employment-related forms of discrimination. While that contention is accurate, I cannot see anything in the Discrimination Act that would prevent a person from taking action because they were, for example, refused service in a shop because of their occupation. The complainant made it plain that her claim is that she was discriminated against in her "calling" as an advocate and spokesperson for her community; I can see no basis in the Act for refusing to examine that claim; I am satisfied that the complainant exhibits the attribute of profession, trade, occupation or calling.
The complainant's claim that she was discriminated against on the basis of her political conviction is more problematic. She explained this as having arisen from the intensity of the differences of view within the association, so that the situation had itself become "political". The Discrimination Act defines 'political conviction' as including having a political conviction, belief, opinion or affiliation, or engaging in political activity, or not having or not engaging in those things (the definition is not exhausted by these specified inclusions). The word 'political' is not itself defined. The Concise Oxford Dictionary defines it as meaning "of or affecting the State or its government", "belonging to or taking a side in politics". The Macquarie Dictionary specifies "pertaining to or connected with a political party, or its principles, aims, activities, etc", "exercising or seeking power in the governmental or public affairs of a state, municipality, or the like". Both dictionaries have other or further definitions, but the meanings all cluster around public and governmental affairs.
The application of this attribute was a focus in Kovac v The Australian Croatian Club,[65] where Presidential Member Professor Spender noted that the Australian case law in the discrimination context identifies 'political' as having an association with government or the processes of government and drew on Nestle Australia Ltd v The President and the Equal Opportunity Board.[66] In that case the Victorian Supreme Court (Vincent J) pointed out that many bodies engage in behaviour that can be described as 'political' in a broad sense, but that it does not always follow that those activities fall within the term as used in discrimination legislation, where the ambit of the term is limited to matters concerned with the processes of government.[67]
Even with the benefit of the generosity required of me by section 4AA of the Discrimination Act, I cannot accept that the complainant's involvement in her association, no matter how vexed the atmosphere may have become, can be characterised as political affiliation or activity under section 7 of the Discrimination Act. I accordingly find that she does not have that attribute.

[102]

In that same case, however, Dawson and Gaudron JJ arrived at the same ultimate outcome (a dismissal of the appeal) but disagreed on whether the making of a discretionary decision on planning approval was the provision of a service. Their Honours considered that the word "services" in the context of the legislation was "a word of complete generality" and "should not be given a narrow construction unless that is clearly required by definition or by context".[73] Toohey, Gummow and Kirby JJ, in separate judgments, found (on bases that differed significantly) that the exercise of the council's planning approval powers involved the provision of a service to those applying for such planning approvals.[74]
Mr Oram took me to a number of other cases on the question of whether the Access Canberra was providing a service to the complainant. In Bickle,[75] the Federal Court (Snaden J) concluded (in the context of legislative definitional guidance essentially identical to that in the present matter) that the provision of the policing of criminal behaviour was not a service, noting authority from earlier cases that certain aspects of policing, such as initial investigations into violence, might constitute services to the victims of violence, but that subsequent investigations and action arising from it is not a service to victims, but a duty to the community at large.[76] Similarly, in Robinson v Commissioner of Police, NSW Police Force the court held that in deciding a bail application the police were not providing a service to the applicant.[77] On the other hand, in AB v Registrar of Births, Deaths and Marriages Black CJ, although in dissent on the ultimate issue, concluded that the refusal of the Registrar to alter the applicant's sex on the register was the refusal of a service.[78]
The general analysis in these and related matters, including the earlier British cases looking at similar issues, suggests that, even in the exercise of a statutory discretion, decision-making by a government instrumentality can be a service where there is discretion whether to accept or reject an application and the decision is providing or denying a benefit to the person seeking it. Mr Oram argues that the decision-making by the Registrar-General in the present matter is not aimed at providing a benefit to the associations to which the decisions relate. The scheme of the AI Act, he suggests, is that associations gain the benefit of coverage by the legislation in return for submitting to regulatory oversight, which is undertaken for the benefit of the community. Not-for-profit organisations gain benefits from forming associations under the AI Act, including the status of the association as a legal person and the relief of the members from liability for an association's debts; but they must in return assure the public that the affairs of the association are properly in order by providing the necessary information and having that information publicly registered.
I agree in general with the respondent's characterisation of the scheme of the AI Act, but I am reluctant to leap to the conclusion that the administrative decision-making undertaken by the Registrar-General can never be classed as a service for the purposes of the Discrimination Act. One reason for my reluctance is that such a decision would be fatal to the complainant's case and great care should be exercised before a matter is excluded from a discrimination statute: one should be "slow to find that the effect of something which is... discriminatory... falls outside the ambit of the Act".[79]
It is also apparent that in seeking to obtain particular decisions from Access Canberra the complainant was attempting to obtain something that would be of benefit to her and her group: for example registration of the committee members that her group nominated, and refusal to register members nominated by the president's group. These may not be the benefits that would normally be provided by decisions under the AI Act, but they were most certainly sought in the complainant's case. The complainant also argued, quite reasonably in my view, that the registration of one committee membership or another also carried with it benefits to the association through, for example, the title of the association to Church land. Given the fine distinctions that underlie decisions regarding when statutory decision-making may be and may not be a "service" (distinctions the fineness of which was recognised by Mr Oram), I do not propose to exclude the operation of Access Canberra under the AI Act; for present purposes, in this particular instance, it counts as a service.

[104]

The actions or failures to act that are asserted to constitute unlawful discrimination by Access Canberra against the complainant are: the acceptance of the change of public officer of the association from the complainant to the president, Mr Ilic, on 8 January 2018; the acceptance and registration of the Change in Committee Particulars and annual return of the association on 26 March 2018; the treatment of the complainant in responding to her representations and to documentation submitted by her over the period from 20 April 2018 to 1 April 2019, including the delay in taking a decision; the decision on 1 April to refuse to register the documentation submitted on 5 September 2018; and the decision of 24 May 2019 not to reconsider the registration decision made on 26 March 2018.
All of the above are actions capable of being discriminatory, and all of them, in my view, are best regarded as potential examples of direct rather than indirect discrimination.
At the hearing the complainant expressed a wish to single out a further action, identified as the email to her from Access Canberra[80] signalling the start of an investigation into the association, and responding to the complainant's message of 27 July.[81] That email attached a draft of the letter about compliance with the AI Act and the association's constitution, sent to the association on 3 October 2018.[82] The investigation formed part of the difficult and lengthy process that the complainant found so upsetting, along with the lack of response to her annual return and delays in matters such as translating the letter purportedly expelling members of the association. The complainant did not press this distinction of this action from the others surrounding it during the rest of the hearing, and I cannot see why any injury is done to her case by considering it as part of the treatment she received from Access Canberra during the period. The impugned actions therefore remain as the five identified above.
The evidence regarding the interaction between the complainant and Access Canberra for each of the five actions has already been presented above and is not generally in dispute, but there is some uncertainty regarding the details of the material submitted by the complainant to Access Canberra on 5 September 2018. That documentation certainly included a Change of Committee Particulars form,[83] but the complainant asserts that it also included a completed annual return for the association based on the extraordinary meeting of 14 January and her bundle at Exhibit A6 includes such materials.[84] Although the respondent's witnesses were able to recall little in the way of detail about the documents, Ms Blanch recalled submission of an annual return form and Ms Harrison referred in evidence to the complainant having submitted a "set of documents". In follow up messages in September 2018 the complainant provided details of numbers present and voting at the extraordinary general meeting, and the letter from the Executive Diocesan Board, with her translation.[85] On 9 January 2019 Ms Kellie wrote to the complainant[86] asking for material in support of the documentation relating to the extraordinary general meeting, which the complainant supplied.[87] Although the decision of 1 April 2019 only refused registration of the Change of Committee Particulars form, it is plain that the documents submitted included the completed annual return form included in Exhibit A6, and I so find.

[108]

Similarly, in Kidman v Casino Canberra Ltd (Kidman) Senior Member (SM) Lennard noted that the phrase "treated unfavourably" is not defined in the Discrimination Act, and concluded that the words should take on their ordinary meaning.[90] That conclusion was endorsed by Beaumont ACJ in Edgley v Federal Capital Press, but it is worth noting the limited scope of that endorsement.[91] The case focuses on the distinction between direct and indirect discrimination, and the attention given to the operation of the "unfavourable treatment" phrase extends only to agreement that to adopt the usual meaning of the words "seems appropriate". The agreement of Higgins and Gyles JJ with the judgment of Beaumont ACJ offers no further analysis of the words here in question. And Beaumont ACJ makes no comment on what the usual meaning of "unfavourable treatment" might in fact be.
It is clear that the test must be an objective one (if the test were a subjective one every complainant would meet it; no-one will complain about an action unless they think the action treats them unfavourably; and if every complainant meets the test, subparagraph 53CA(2)(a)(i) of the HRC Act would have no work to do). Usually the test outlined in Prezzi is logical and easily applied: thus in Kidman, for example, the complainant's employer wrote to the complainant foreshadowing disciplinary action; in Complainant 201823 the complainant was denied public liability insurance because he had been convicted of a criminal offence; in a recent case, Andreopoulos v University of Canberra[92] the impugned action was the failure by the university of a student in a viva voce exam. In all these examples it is reasonably clear that the action is objectively unfavourable - either a failure to obtain a benefit or the imposition of a detriment, or both. In a case where the matter complained of is delay, the absence of a bright line for when a decision ought to be arrived at will not prevent an objective recognition in particular cases that some extended period where no decision has been taken constitutes a significant delay, and an objectively unfavourable outcome.
But a conclusion that, objectively, a detriment has been imposed or a benefit denied may not always seem so logical. If a person seeks employment but is rejected for a position when that person plainly falls well short of meeting the specified qualifications, have they objectively been denied a benefit? After all, that benefit, on the merits, was not one that they had any realistic chance of obtaining. It was this kind of consideration that appears to underlie the views expressed by SM Anforth in D v Commissioner for Social Housing,[93] a case that Mr Oram encouraged me to follow. In that case the tribunal was dealing with the problem faced by organisations such as those that provide public housing; such organisations are often obliged to provide scarce public housing resources to one applicant over another. In so doing, are they treating the party that misses out "unfavourably", if they have good reason for giving a higher priority to another applicant? SM Anforth, noting that the direct discrimination definition in paragraph 8(1)(a) of the Discrimination Act does not impose any "reasonableness" test, said:

[110]

SM Anforth goes on to conclude that "unfavourable" is inherently comparative, the relevant comparison being not with another person without a protected attribute, but by reference to a person's reasonable expectations.
Prezzi is a widely cited case; in contrast, D v Commissioner for Social Housing appears to have been cited only once, on an entirely different point. It appears that even if both approaches are arguable, one has found favour with this tribunal.
The choice between competing understandings of "unfavourable treatment" in section 8 of the Discrimination Act and section 53CA of the HRC Act depends on how the word "favourable" is understood. The dictionary defines "unfavourable" in terms of its opposite, "favourable". The definitions of "favourable" include "manifesting favour"; and of an answer, "granting what is desired";[94] alternatively, "promising, auspicious, satisfactory".[95] This seems to extend both to generally positive developments and to positive outcomes that are the result of having been singled out for favourable treatment; it follows that "unfavourable" could refer to generally negative outcomes or alternatively to those that result from special disfavour, that is, worse than the person might ordinarily expect. The range of meanings thus set out appears to encompass both a broader and a narrower meaning: either any outcome that is objectively negative for a person; or an outcome that is worse than the person might objectively expect. Mr Oram encouraged me to adopt the latter understanding; that position is certainly arguable, but it is not one that has proven popular in this tribunal.
These two meanings correspond to two understandings of discrimination: in one understanding (here referred to as the narrower understanding), a person is discriminated against under the legislation if they are treated worse than they objectively had a right to expect and that treatment was caused by their protected attribute; under the alternative (the broader understanding), if a person receives any objectively negative outcome, regardless of what they might have reasonably expected, and it is established that the negative outcome was caused by their protected attribute, they have been discriminated against. Using SM Anforth's cruise to London example (and assuming that the person had no reasonable expectation of being awarded such a cruise), under the narrower definition that is never discriminatory; under the broader definition it is discriminatory if the rejection or denial of the cruise was done because of the person's protected attribute or attributes.
I cannot see that the remedies provided in section 53E of the HRC Act provide a way of distinguishing between the two understandings. The remedies allow the Tribunal to choose one or more actions correcting the behaviour, redressing the wrong, and compensating the person discriminated against. Where a person had no reasonable expectation of a benefit, but had been denied it because of their protected attributes, the remedy would perhaps be limited to correcting the behaviour of the person doing the discriminating, without recourse to redress or compensation. The flexibility allowed the Tribunal means that there is no absurdity that would suggest that a different understanding should be adopted.
The Discrimination Act came before the ACT Legislative Assembly as the Human Rights and Equal Opportunity Bill 1991 in October of that year (it apparently underwent a change of title in the course of debate, because the Act, once passed, was gazetted as the Discrimination Act 1991 on 13 December of that year). The definition in paragraph 8(1)(a) was part of the Bill and is unchanged from that time. The explanatory statement that accompanied the Bill casts no light on the intent of the ACT Government regarding the interpretive point raised above; and the speech introducing the Bill by the then Chief Minister, Ms Rosemary Follett MLA, is very limited in its comment on section 8:

[112]

While one can read that statement as encouraging the broader rather than the narrower understanding of "unfavourable treatment" (in that the broader understanding is arguably simpler), in my view it does not provide clear and sufficient guidance for choosing one understanding over the other. My reason for preferring the broader understanding, ultimately, is that it gives more complete effect to the objects of the Discrimination Act: discrimination should be eliminated, even if its detrimental effects would have been arrived at in any case by other reasoning or processes.
In my opinion, all of the actions by Access Canberra asserted by the complainant to be discriminatory fall within the broader understanding of unfavourable treatment. The decisions to recognise the committee members put forward by Mr Ilic and his group (including Mr Ilic himself as public officer) and to refuse recognition to the complainant's group were all objectively unfavourable to the complainant and her supporters. The decision of 24 May 2019 not to reconsider the decision of 26 March 2018 was also objectively unfavourable.
Mr Oram contended that the treatment of the complainant and the delay in arriving at a decision regarding the complainant's change of committee particulars was not excessive, given the complexity of the decision, the investigations undertaken, the limited resources available, the difficulty translating the letter from Serbian, the Christmas break at the end of 2018, the need for legal advice, and the delays induced by the complainant's recourse to FOI requests and ministerial correspondence. I do not accept that argument. The decision was not, in essence, vastly different from that taken very rapidly in March 2018 in regard to the documents submitted by Mr Ilic, but it required seven months to make rather than a few days (longer if the starting point is taken as 27 July 2018 when the complainant began urging action, and even longer if the start is 20 April 2018). Clearly Access Canberra was obliged from 5 September 2018 to take new considerations into account that had not been in front of mind in March, but even so, the time taken for a decision that was not inherently complex is greater than was reasonable. I cannot accept the difficulty in translating the letter: if a Serbian translator of suitable neutrality could not be identified in Canberra, why not use a translator in Melbourne or Sydney (or for that matter, in London, Belgrade or Chicago)? And I think the complainant is right when she says that, on any reading, the letter was not something on which the decision was likely to turn. The need to undertake an investigation, the involvement of more than one part of Access Canberra, coping with limited resources, FOI requests and ministerial letters, obtaining legal advice - these are all normal parts of bureaucratic processes and decision-making. I fail to see how they explain a seven-month period for a decision that was not inherently a complex one. The delay alone, quite apart from any other aspect of the treatment of the complainant, constitutes objectively unfavourable treatment.
Since Mr Oram has urged the narrower understanding upon me, it is perhaps worth commenting on whether the impugned actions constitute unfavourable outcomes under that understanding. In my view the delay incurred in dealing with the complainant's representations between July 2018 and April 2019 was beyond what she could objectively expect and therefore was unfavourable treatment under the narrower understanding. On the other hand, the replacement of the complainant with Mr Ilic as public officer of the association on 8 January 2018 does not constitute unfavourable treatment under the narrower understanding. Access Canberra was aware that under the Association's constitution the president must be the public officer.[97] The change in public officer on 8 January 2018 was therefore entirely reasonably to be regarded as correcting an identified irregularity.[98] Similarly, the decision of 24 May 2019 related to the complainant's wish to have Access Canberra reconsider the decision of 26 March 2018 to register the annual return submitted by Mr Ilic. In my view, it was objectively reasonable that that submission would be rejected, given that more than a year had elapsed since the decision was taken.
The decision of 26 March 2018 to accept Mr Ilic's documentation is a different matter. Access Canberra had been alerted to the existence of strong differences of view between the two groups in the association, first by the complainant's email of 5 December 2017[99] and subsequently, in February 2018, by telephone exchanges between Ms Kellie and the complainant. No records of the latter are in evidence, but I have no doubt that the complainant is telling the truth, and Ms Cubin's letter of 24 May 2019 acknowledges those calls.[100] Access Canberra is therefore fixed at that time with the knowledge that the association was divided, and that there was a risk that the documents submitted by Mr Ilic might not be complete and in order. Ms Cubin's letter states that "there was not enough information available to satisfy the Registrar-General that he should exercise his discretion and refuse to register the documents". That, I think, represents a rationalisation after the event of the action taken. There was enough information to give an administrator pause. The critical issue for Access Canberra, as administrators of the AI Act, was to avoid taking sides in a dispute within the association; the association should have been required to sort out its affairs before any irrevocable decision was taken. The decision of 26 March 2018 falls within the narrower understanding of unfavourable treatment; that is, it was in my view objectively reasonable for the complainant to expect a better outcome than in fact occurred.
The rejection of the complainant's change of committee particulars and associated documentation in the decision of 1 April 2019 was not in my view unfavourable treatment under the narrower understanding, although the way Access Canberra dealt with the matter was not what one should expect from an arm of government. Quite apart from the delay, when the decision did arrive it dealt with the Change of Committee Particulars form only, and not with the annual return documentation more broadly. The stated reasons for the decision of 1 April 2019 rely on the changes in the committee having occurred other than at an AGM: because they are taken to have occurred between AGMs, there must be acceptance or agreement by the outgoing committee members if procedural fairness requirements are to be met. Quite apart from the somewhat tenuous nature of that reasoning, the complainant notes that the Change in Committee Particulars was merely an attachment to the annual return. In the course of the hearing, the respondent's witnesses could not recall the detail of the documentation submitted by the complainant on 5 September 2018, although Ms Blanch and Ms Harrison confirmed the complainant's assertion that a complete annual return had been submitted. Mr Oram contended that the documents were essentially the same, but one clear difference between a change of committee particulars form and an annual return form is that the former requires the signatures of outgoing committee members and the latter does not. The email of 9 January from Ms Kellie seeking supporting information about the extraordinary general meeting held a year earlier points clearly to Access Canberra having been very aware of the issue; but the point escapes mention in the stated reasons for the 1 April decision. In essence, the documentation from the complainant was not dissimilar to that accepted for registration a year earlier from the president's group.
That said, those dealing with the issue in Access Canberra were well aware of dissension within the association, to the point where any further action benefiting or favouring either group was surely inappropriate. With that information at hand an administrative body would be prompted to ask questions. Furthermore, the documentation submitted on 5 September 2018 was clearly deficient in various ways. One question was whether there was certainty regarding the existence of a quorum at the extraordinary AGM; the complainant's arrival at a number to show there was a quorum involved excluding certain financial members whom she judged lived too far away from Canberra - an interpretation of the constitution that surely required examination. In a similar way it could be expected that some check would be made on whether the requirement in the constitution that a third of members sign a request for an extraordinary general meeting had been met in respect of the meeting on 14 January 2018. The annual return form, as submitted, was in any case an invitation to cautious decision-making, as it is full of contradictory information (the AGM is said to have occurred on 18 February 2018, but an annotation notes an extraordinary general meeting on 14 January) and some information is crossed out and replaced. This is not a document easily accepted on its face. It is my view that an objectively reasonable expectation was that the submitted documents would not be accepted for registration.
Thus even on the narrower understanding, the decision of 26 March 2018 and the sustained failure to take a decision up to 1 April 2019 constitute unfavourable treatment.

[114]

In what follows the causes of all five impugned actions are examined. In the Discrimination Act, as in other legislative schemes dealing with discrimination, a key issue for decision-makers is how to address the causation question - whether in a given instance the relevant action occurred because of the complainant's protected attribute or attributes. In Purvis v State of NSW[101] the High Court provided an analysis of the causation issue in discrimination legislation, there the Disability Discrimination Act 1992 (Cth), although the same or very similar issues arise under other legislative schemes, including the ACT's Discrimination Act. Their Honours generally discouraged a "but for" test (would the discrimination have occurred "but for" the protected attribute or attributes). Gleeson CJ noted that the relevant provisions in the Commonwealth Act were concerned with the lawfulness of the actions taken, and with "the true basis of the decision".[102] McHugh and Kirby JJ, whose dissent on the ultimate issue does not affect their reasoning on this point, reached a similar conclusion that the decision-maker must identify "the real reason" for the purportedly discriminatory action.[103] Gummow, Hayne and Haydon JJ noted debates in relevant cases about the motive of the discriminator, the purpose of the conduct, and its effect, concluding that the question will always be "why was the aggrieved person treated as he or she was" [emphasis in original], with motive, purpose and effect relevant to but not substitutes for the statutory test of causation.[104]
The causation that the complainant needs to establish, then, is that one (or more) of the complainant's protected attributes is a real, genuine and not insubstantial reason[105] for the unfavourable treatment. It is recognised in the case law that it is not common to find direct evidence of discrimination; where a court or tribunal finds discrimination, it is usually through inferences, and especially through the cumulative effect of the inferences that may be drawn from all of the circumstances taken together.[106] But the inferences must reflect real probabilities, not simply possibilities, or mere supposition.[107]
It is at this stage that the complainant's case comes up against its greatest challenge. None of the evidence advanced by the complainant, with one possible exception that I turn to in more detail below, comes anywhere near meeting the test imposed by paragraph 53CA(2)(b) of the HRC Act. There is nothing in any of the letters and emails between her and Access Canberra in which any kind of adverse or discriminatory comment or reflection is made by that organisation against the complainant because she is Serbian, or the members of her group are Serbian, or because she and the members of her group attend the Serbian Orthodox Church and adhere to the Serbian Orthodox religion or because the association is a church association. There is no evidence from any of those materials, or in the accounts given by witnesses of their telephone conversations, again with the one exception considered below, that suggests that such considerations had any causal role to play in the unfavourable decisions. There is simply no evidence on which the complainant can hang her case.
The same is true with respect to the complainant's calling as an advocate. The dealings of Access Canberra with those who seek to have decisions taken in one direction or another will usually be met with mixed results, depending on the merits of the representations made. In some areas of Access Canberra's work, every member of the public or representative of a group with whom the organisation works will be an advocate; decisions will be made, and often routinely made, that do not meet with the expectations or wishes of those dealing with the organisation. That does not allow any conclusion to be drawn that the negative outcomes were arrived at because the member of the public or representative was an advocate for one cause or another, no matter how dogged, enthusiastic, unyielding or persistent they may be. I can see nothing in the exchanges before me that I would describe as unfavourable to the complainant because she was acting as an advocate for her group. Once again, I am unable to discern any causal link between the complainant's role or calling as an advocate, and Access Canberra's adverse decisions and unfavourable actions.
The possible exception referred to earlier relates to the conversation the complainant reports from October 2018 with a person at Access Canberra named "Richard", identified as a member of the Fair Trading - Investigations, Compliance and Enforcement Team. The complainant reports that Richard said that he had been unable to source a Serbian translator who was not tied to either the complainant's or the president's group, and further stated that the situation was impossible for his organisation because whatever decision was made one side or the other would be disappointed and upset.
I have no doubt that the complainant is reporting the substance of her conversation with "Richard" with reasonable accuracy. The complainant was long-winded and discursive, but the bald facts she has reported, where confirmation is available, have been corroborated, and no-one has suggested that she is fabricating or exaggerating her evidence (the interpretation she puts on that evidence is a different matter, of course). As far as the facts of the matter are concerned, I regard her as a witness of truth. Only one "Richard" from Access Canberra features in the record of events, and that is Mr Binks, who was in Access Canberra during the period when the telephone conversation took place (although not in the team the complainant identifies). Further, he reported on a conversation with the complainant in terms that align closely with the complainant's account, with regard to the translation and the risk to Access Canberra from the decision that had to be taken. The complainant did not, in cross-examination, challenge Mr Binks to identify himself as "Richard", but I do not need to make a finding on the point, as nothing rests on the identity of the particular Access Canberra staff member with whom the complainant spoke. I accept that the conversation took place.
Might the unnecessary complications in translating the letter, have been real, genuine and not insubstantial causes of the delay in taking a decision? Naturally any document in a foreign language will require some period of time for translation, but it would be absurd if every such requirement gave rise to a possible claim of discrimination as a result. If the time taken in this instance was more than it should have been, on what basis can the complainant's Serbian ethnicity, or Serbian Orthodox religious affiliation, or representation of a church association, or calling as an advocate, be said to be the cause? Hypotheses along those lines require speculation about motive and intention; and if Access Canberra, or "Richard" as an agent of Access Canberra, intended or wished to cause a detriment to the complainant, delaying a decision or generally adding complication to the decision-making process rather than immediately taking an adverse decision seems an odd and illogical way of going about it.
My willingness to reach that conclusion is reinforced by the existence of plausible alternative explanations for the delay. One such explanation is bureaucratic inefficiency, which is always unwelcome and indeed may be unacceptable, but is nevertheless common.
Another plausible explanation is that on 26 March 2018, either disregarding or unaware of Ms Kellie's warning that no action was to be taken without consultation, Access Canberra's staff accepted and registered the documents submitted by Mr Ilic. (I note too that there are details apparent in the documentation submitted for registration that might invite speculation: the Change of Committee Particulars is dated 25 February 2018 but the Annual Return is dated 25 March 2018, the day before registration of the documents on 26 March 2018.) The preferable course in March 2018 would have been to ensure that the association resolved its internal differences - differences of which, as noted earlier, Access Canberra was aware - and that any documentation that subsequently came forward reflected that resolution.
It is my hypothesis that Access Canberra, having made a rash or careless decision, then had to find a way of dealing with the complainant, who was upset and extremely persevering. After she submitted her own documents in September 2018 it may well be that Access Canberra was happy to postpone the day when a decision that would be unpopular with one group or the other would have to be made. Mr Binks noted at the hearing the risk that any decision would be deeply unpopular with one faction or the other, and the complainant reported the same sentiment having been expressed in her conversation with "Richard".
The sense of being discriminated against is one that is highly subjective: people may develop a strong sensitivity to discriminatory treatment, and another person not sharing that person's background, circumstances and attributes cannot expect to appreciate fully that sensitivity. But the Discrimination and HRC Acts set an objective test: not only the person discriminated against but also the Tribunal must be persuaded that on the balance of probabilities the unfavourable treatment is caused by the person's particular protected attributes. Even taking into account the cumulative effect of any and all inferences that may reasonably be drawn (and they in this instance are few), the complainant in the present matter has failed to make out her case.

[116]

The complainant made a number of references to a foundation case in administrative law, Anisminic v Foreign Compensation Commission,[108] (Anisminic) although it was not clear to me how she proposed that the case casts light on the present matter. The case sets out some of the fundamental considerations relating to two areas of administrative law, namely the distinction, in decisions of courts and tribunals, between jurisdictional error and error within jurisdiction; and the extent to which privative clauses exclude the judicial review jurisdiction of courts. After careful examination of the case, I cannot see any relevance of the judgments in Anisminic to the present matter, which is a discrimination action before a tribunal, and not judicial review by a court.
The complainant also drew to my attention Schedule 1 of the Competition and Consumer Act 2010 (Cth) (the CCA). The Schedule deals with cartel conduct, reproducing most of the provisions of Part IV of the CCA. The complainant did not explain the application of the Schedule, but in her closing submissions suggested that the CCA was relevant because of its provisions dealing with unconscionability. Schedule 1 to the CCA does not deal with unconscionable conduct, but that concept is included in Schedule 2, which is the Australian Consumer Law and is given effect by Parts XI and XIA of the CCA. It largely applies to corporations. Schedule 2 includes at Part 2-2 provisions that prohibit unconscionable conduct in the sale and acquisition of goods and services. 'Unconscionable conduct', as acknowledged in Part 2-2, is a concept recognised in equity; contracts may, for example, be set aside because they are vitiated by unconscionable conduct. But the ambit of the CCA is confined to commercial activity (to activities of a "business", including business activities by government). The administrative oversight of the AI Act by Access Canberra is not a business or a commercial activity. In any case, whether or not Access Canberra has engaged in unconscionable conduct is largely irrelevant in the context of a discrimination action under the Discrimination and HRC Acts: what the complainant must meet is the causation test in those Acts, and that she has failed to do.
During the course of the hearing the complainant made a number of comments relating to the land held by the Free Serbian Church in Canberra, and the papers include caveats and other materials relating to those holdings. One of the benefits of incorporation under the AI Act is that an incorporated association may hold title to land. The Free Serbian Church's Canberra land is held by the association. The complainant in her closing submission attempted to present the conduct of the president's group as a "land grab." The respondent objected, on the basis that the contention had not been raised earlier. That objection was well founded; in any case, I cannot see how the motivation and intention of the president's group with respect to the land influences the conclusions I might arrive at on the questions of discrimination and victimisation by Access Canberra that are at the heart of this case.

COMPLAINANT 201931 v AUSTRALIAN CAPITAL TERRITORY

At a glance

Court

Decision date

Before

Source

Judgment (171 paragraphs)

COMPLAINANT 201931 v AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY ACCESS CANBERRA) (Discrimination) [2021] ACAT 9 (8 February 2021)

Parties

Legislation Cited (6)

Cases Cited (1)