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[2023] ACAT 17
ACT Civil and Administrative Tribunal
2023-03-14
Member Robinson
Original judgment source is linked above.
COMPLAINANT 202012 v AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE (Discrimination) [2023] ACAT 17
Catchwords: DISCRIMINATION - where respondent denied the complainant kinship and carer status in respect of her grandchildren - direct discrimination alleged - discrimination alleged in provision of goods and services - where protected attribute is an irrelevant criminal record - whether assessing and making a decision on kinship carer status is provision of a service - whether the complainant had an irrelevant criminal record - whether the complainant was treated unfavourably - whether unfavourable treatment was because of complainant's irrelevant criminal record - whether rebuttable presumption of discrimination established by complainant - whether presumption rebutted by respondent - whether allegedly discriminatory action covered by exception for action necessarily done in compliance with a statutory requirement - possible remedies
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22B, 54
Anti-Discrimination Act 1977 (NSW) ss 47, 49M
Interpretation Act 1987 (NSW) s 33
Ombudsman Act 1974 (NSW) s 35A
Cases cited: AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140
Australian Capital Territory v Wang [2019] ACAT 65
Bickle v State of Victoria [2020] FCA 168
Butcher v The Key King Pty Ltd [2000] ACTDT 2
Director-General, Department of Community Services v MM [2003] NSWSC 1241
Hampson v Department of Education and Science [1990] UKHL 15; (1991) 1 AC 171
IW v City of Perth [1997] HCA 30
Mulholland v Australian Electoral Commission [2004] HCA 41
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Purvis v New South Wales [2003] HCA 62
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
The Ombudsman v Laughton [2005] NSWCA 339
Waters v Public Transport Corporation [1991] HCA 49
Texts/Papers cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014)
AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE)
Various pieces of legislation and international conventions
Email covering remade decisions by Ms Emma Selby (dated 1 February 2021) and Ms Jenna Schoer (dated 9 July 2021)
General complaint about dealings with CYPS and the ACT Government
General complaint about dealings with CYPS and the ACT Government
Statement alleging police abuse with criminal history
Draft witness statement including personal history and accusations against police and others
Extract from website dealing with the rule of law (apparently from the Rule of Law Education Centre)
Email detailing court orders and dealings with CYPS
Email attaching home schooling provisionary certificate for one of complainant's children; list of school activities for one child; recommendation by a doctor in 2004 for suitability of complainant for custody of children; record of dialogue dating from 2004 between one child and doctor regarding child's preference for parent
Draft statement identifying documents being pursued and possible witnesses
Email alleging false reports and attaching two police reports
Draft statement describing family behaviour and past events
Email regarding complainant's interest in rockabilly dance, with posters, photographs and drawings
Email alleging torture by police and forced adoption, attaching article from Canberra Times; drawings by grandchild allegedly indicating child's pain and suffering; apology to Stolen Generations by then Chief Minister
Email asking for various legislative provisions to be taken into account
(a) witness statements by the Delegate (the Delegate's witness statement) and Ms Vicki Anderson (the Anderson witness statement), the two Directorate officers who made the decisions in 2016 and 2017 denying the complainant the carer status she was seeking; > > (b) the T-documents, a numbered compilation of the Directorate's documents relating to this matter (the T-documents); and > > (c) a submission by the Directorate.
The Discrimination Act and the HRC Act
irrelevant criminal record_, in relation to a person, means a record relating to an offence, or an alleged offence, if - _
_(a) the person has been charged with the offence but - _
(i) a proceeding for the alleged offence is not finalised; or
(ii) the charge has lapsed, been withdrawn or discharged, or struck out; or
(b) the person has been acquitted of the alleged offence; or
(c) the person has had a conviction for the alleged offence quashed or set aside; or
(d) the person has been served with an infringement notice for the alleged offence; or
(e) the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which discrimination arises; or
(f) the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000, for the offence.
Note The Spent Convictions Act 2000 sets out which convictions can be spent (see that Act, s 11) and when a conviction is spent (see that Act, s 12).
20 Goods, services and facilities > > It is unlawful for a person (the provider_) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person - _
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
_(2) It is a rebuttable presumption that discrimination has occurred if the complainant - _
_(a) establishes that - _
(i) for a complaint about direct discrimination - the treatment or proposed treatment is unfavourable; and
(ii) for a complaint about indirect discrimination - the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
_(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation - _
(i) for a complaint about direct discrimination - that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii) for a complaint about indirect discrimination - that the effect of disadvantaging the other person is because of a protected attribute of the other person.
_(3) The presumption under subsection (2) is rebutted if the person complained about establishes that - _
(a) for a complaint about direct discrimination - the treatment is not because of a protected attribute of the other person; or
(b) for a complaint about indirect discrimination - the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
"protected attribute" means a protected attribute under the Discrimination Act 1991.
What are the consequences of a conviction becoming spent?
(a) the person is not required to disclose information about the spent conviction to anyone; and
(b) a question about the person's criminal history is taken not to refer to the spent conviction, but to refer only to any of the person's convictions that are not spent; and
_(c) in applying an Act to the person - _
(i) a reference to a conviction (however expressed) is taken not to refer to the spent conviction, but to refer only to any of the person's convictions that are not spent; and
(ii) a reference to the person's character (however expressed) does not allow or require anyone to take the spent conviction into account.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
_(b) to be appointed, employed or otherwise engaged (whether or not for financial reward) in any other capacity - _
(i) in relation to the care, instruction or supervision of children, older people or people with a disability; or
...
(d) to be permitted to provide care, instruction, supervision or any other services for children, older people or people with a disability; or
(e) for registration under the Working with Vulnerable People (Background Checking) Act 2011.
suitability information, about an entity, means information about the following:
_(a) any conviction of, or finding of guilt against, the entity for - _
(i) an offence relating to the provision of services for children or young people; or
(ii) an offence against a child or young person; or
(iii) an offence involving a child or young person; or
(iv) an offence involving violence; or
(v) a sex offence; or
(vi) an offence involving dishonesty or fraud; or
(vii) an offence involving possession of, or trafficking in, a drug of dependence or controlled drug; or
(viii) an offence against an animal;
(b) any proven noncompliance by the entity with a legal obligation in relation to providing services for children or young people;
Example
the entity is a licensed proprietor of a childcare service and the licence is suspended for safety reasons under s 763 or under a law of another jurisdiction that substantially corresponds to s 763
(c) any refusal of an application for a licence or other authority (however described) in relation to providing services for children or young people;
(d) the soundness of the entity's financial reputation and the stability of the entity's financial background;
(e) the entity's reputation for honesty and integrity;
(f) whether the entity has proven experience or demonstrated capacity in providing services for children and young people;
(g) whether a child concern report about the entity has been received by the director‑general and any action that has been taken in response to the report by the director‑general or a court or tribunal;
(h) for an entity in relation to suitability for the purpose of foster care - information in paragraphs (a) to (g) for each other adult member of the entity's household;
(i) any other consideration relevant to the entity's ability to provide high quality services for children or young people.
Example > > refusal in Queensland of an application for a licence in relation to providing services for children or young people
(a) whether the impugned decision constituted unlawful discrimination against the complainant; and > > (b) if so, what remedial orders should be made.
(a) whether decisions on kinship and carer responsibilities by CYPS, taken under the CYP Act, fall within the definition of the provision of goods, services and facilities in section 20 of the Discrimination Act; > > (b) whether the complainant had an irrelevant criminal record within the terms of the definition of that phrase in the Discrimination Act; > > (c) if so, whether the impugned decision was unfavourable to the complainant; > > (d) if so, whether the decision was unfavourable to the complainant because of the complainant's irrelevant criminal record; > > (e) whether the complainant has established a rebuttable presumption under section 53CA(2) of the HRC Act; > > (f) if so, whether the respondent has successfully rebutted that presumption; or > > (g) alternatively, whether the respondent has established that the matter is covered by an exception or exemption; > > (h) whether the Directorate unlawfully discriminated against the complainant; and > > (i) if so, what remedies should be ordered.
(a) Part 1 of the document is headed "Details". One question asks whether the applicant for kinship carer status has disclosed a criminal history; a check box is marked "yes".[27] > > (b) Part 4 of the document is headed "Formal suitability information considerations", assessing the information required under section 65 of the CYP Act. Sub-heading 4.1 is "National criminal history check" and under that heading is the following information:[28]
On the same day in 2014 [the complainant] telephoned 4 times and threatened to kill herself and the police attended the property to check her welfare
(c) At the end of section 4.4, headed "Summary of suitability information" there is a reference to "criminal history" with an exact repeat of the information from section 4.1.[29]
In relation to s65 of the Children and Young People Act 2008 I have not assessed [the complainant] as a suitable entity as a kinship carer as there is a history of a conviction in relation to drive motor vehicle with alcohol in blood, 2 times offensive behaviour in a public place and escape, break out of custody.
[The complainant] is not assessed as a suitable entity for the purpose of being a Kinship carer for [names of children redacted]. CYPS are not confident [the complainant] could carry out the daily and or long term responsibilities on a consistent basis in order to meet all the children's [names redacted] needs.
Statement of reasons > > This is a statement explaining the decision for non approval of a person to be a kinship carer. The decision considers information and evidence provided in the preliminary kinship carer assessment or the comprehensive kinship carer assessment.
The Preliminary Kinship carer assessment demonstrated [the complainant] is willing to be a Kinship carer for her grand children. However there are issues pertaining to her criminal history and the child protection history involving her children.
To start the process of lodging a complaint against child protection. > > I have attached the outcome of the kinship assessment. > > [Case Officer - name redacted] did not to [sic] a full preliminary assessment and she did not do a comprehensive assessment at all.
On the following day, 16 August 2019, the complainant sent a further message:
Child protection and legal aid often referred to the grandchildren as being aboriginal which we are not. There is another family with the name [redacted] and I am concerned that they are again confusing information. > > They made numerous mistakes like this with my own children and were referring to other families. Child protection and other departments don't read paperwork properly and sometimes not at all. This is disturbing.
On 20 August 2019, the complainant sent the following email:
I have attached a copy of a police check on myself that I applied for myself. > > As you will see there are no criminal convictions. > > One of the incidents occurred when I was 17 which was an illegal detention which I as a Forgotten Australian was apologised to by the Australian government. I am seeking compensation for this through redress, this and the sexual assault by a gaurd [sic] I suffered for the night when I was put in Quamby for the night. > > The second incident of low grade DUI, I was also not guilty but I believe that this was further institutional abuses by the courts. The judge still gave me a good behaviour bond. I was going to appeal through the supreme Court but due to not being able to afford it, nor having access to justice anyway (a human rights violation) I could not appeal this decision. I was given a good behaviour bond as it was also considered a first offence. > > These are not reason for not allowing me kinship nor reason for kidnapping my daughter which actually happened prior to the later incident anyway. > > I also have a current working with vulnerable people card,
On 2 September 2019, the complainant sent a further email:
I have attached my criminal check/ > > Which as you can see I have no criminal convictions. > > How do you justify this as being any reason for refusing me my grandchildren? Or reason to destroy my innocent family? > > One of these happened when I was 17 and I received an apology from both the forgotten Australian inquiry and Royal Commission and have a right to redress!! > > The other one I was innocent, it was institutional abuses and I couldn't afford to take to the supreme Court and due to institutional abuses and no access to justice there was no point. This another issue dealt with at the Royal Commission and since apologised to for as well. > > The Australian government and the ACT government both said we survivors/victims would be supported. And the government's institutions would be accountable and transparent. > > No-one in child protection has investigated and child protection involvement was purely nefarious. As to that of anyone who made reports about me to child protection.
The complainant's final message in this set of exchanges, dated 9 October 2019, was as follows:[32]
I am happy to go ahead with individual reports to start with. Starting with the complaint about my irrelevant criminal convictions. > > Could you please call me again?
On 16 October 2019, the Discrimination Commissioner at the HRC, Ms Karen Toohey, wrote to the Director-General of the Directorate conveying the essence of the complaint - taking account of an irrelevant criminal record in the provision of goods, services and facilities and seeking a response. Ms Toohey described the complaint in the following terms:
[name redacted]'s complaint is that her irrelevant criminal record was unlawfully taken into account in a decision of December 2016 where she was assessed as not suitable to be a kinship carer. [name redacted] also claims that the assessment of her application to be a kinship carer was inappropriately assessed as irrelevant information was taken into account in that assessment.
(a) the impugned decision of CYPS with regard to authorisation as a kinship carer falls within the provision of goods, services and facilities in section 20 of the Discrimination Act; > > (b) the decision by CYPS took the complainant's criminal record into account in a way that means that she has an irrelevant criminal record under the Discrimination Act; > > (c) the decision not to authorise her as a kinship carer was unfavourable treatment under section 8 of the Discrimination Act; > > (d) this unfavourable treatment was at least in part because of her irrelevant criminal record; and > > (e) in taking her irrelevant criminal record into account in her kinship carer assessment, CYPS discriminated against her.
Is a decision about carer status the provision of a service?
(a) services relating to banking, insurance or the provision of grants, loans, credit or finance; and
(b) services relating to entertainment, recreation or refreshment; and
(c) services relating to transport or travel; and
(d) services of any profession, trade or business; and
(e) services provided by a government, government authority, local government body or corporation in which a government has a controlling interest; and
(f) the provision of scholarships, prizes or awards.
Construed in context, the assessment of whether to approve a person as an approved carer involves:
People apply to become foster carers out of a strong desire to give and to receive. They want to receive the privilege of having a child they can treat more or less as their own. It seems to me that that privilege is a benefit and that to confer it or the chance of it is to provide a service within the meaning of ss47 and 49M(1) of the Anti-Discrimination Act. The privilege is also an advantage, as much to the foster carer as to the foster child, which the Department's activity tends to give. I think that in offering the respondents the chance of becoming foster carers the Department provided a service to them.
Did the kinship carer decision take into account an "irrelevant criminal conviction"?
The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.
The maxim ... that a general provision cannot derogate from a special or more specific provision is, as the Chief Justice recognises, sometimes difficult to apply. Where appropriate, it is preferable to apply the provisions of the Interpretation Act 1987 (NSW), being the statutorily prescribed approach to statutory interpretation. The well-established approach to the construction of protective provisions, such as s 35A of the Ombudsman Act 1974, accords with the requirement of s 33 of the Interpretation Act that a purposive approach be adopted in construing a provision of an Act, in preference to a construction that would not promote the purpose underlying the Act.
Was the decision unfavourable to the complainant?
Was the decision unfavourable to the complainant because of her irrelevant criminal record?
On the evidence presented, is it a rebuttable presumption that discrimination has occurred?
Has the respondent rebutted the presumption that discrimination has occurred?
(a) the taking of decisions regarding kinship carer status does not involve the provision of a service to prospective carers and does not fall within section 20 of the Discrimination Act; > > (b) the relevant provisions of the SC Act and the CYP Act, taken together, in the context of decisions about the care of children and young people, do not prevent a decision-maker from taking into account criminal history information that in other circumstances would be excluded by the SC Act; > > (c) the weight given to the complainant's criminal history in the impugned action was minimal, to the point that it does not have the required causal link to the unfavourable treatment that she suffered in being denied kinship carer status and therefore is not discrimination; and > > (d) the decision by the respondent is covered by the exclusion in section 30 of the Discrimination Act; that is, it escapes being unlawful because it was taken necessarily for the purposes of the CYP Act.
Is the impugned action covered by an exception or exemption?
(a) a Territory law; or > > (b) a determination or direction made under a Territory law; or > > (c) an order of a court; or > > (d) an order of the ACAT.
It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy. In Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation, a case concerning s 51 of the Income Tax Assessment Act 1936 (Cth), Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the word "necessarily", in the context of the allowability of deductions for expenditure necessarily incurred in carrying on a business, meant "clearly appropriate or adapted for", not "unavoidably". Under the Income Tax Assessment Act, it was not for the Commissioner to tell a taxpayer how to run its business. The primary judgment was left to the taxpayer, and the concept of "necessarily incurred" was intended to impose a limit, enforced by the courts, but allowing due regard for the consideration that it was for the taxpayer to make the business judgment in deciding what to spend. The Commissioner could not disallow a deduction on the ground that the expenditure was not unavoidable. (citations omitted)
The Equal Opportunity Tribunal of New South Wales held that, in order to fall within the exception in s.54, the Commissioner had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct. The Tribunal held that the requirement of the "other Act" must be mandatory and specific.
Did the Directorate discriminate unlawfully against the complainant?
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
_(3) In making an order under subsection (2) (c), the ACAT must consider - _
(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and
(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d) the nature of the discrimination; and
(e) any mitigating factors.
Examples - par (b) - impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example - par (c) - other human rights
freedom of expression
Examples - par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples - par (e)
a public apology, systemic changes to protect against further discrimination
(4) The commission may, with the ACAT's consent, intervene in a complaint to make submissions about an order under subsection (2) (c).
(5) In this section:
representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71.
(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and > > (b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and > > (c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and > > (d) the nature of the discrimination; and > > (e) any mitigating factors. > > Examples - par (b) - impact of discrimination > > distress, humiliation, loss of self-esteem, loss of enjoyment of life > > Example - par (c) - other human rights > > freedom of expression > > Examples - par (d) > > serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991 > > Examples - par (e) > > a public apology, systemic changes to protect against further discrimination
[25] Apparently received by CYPS on 11 August 2016, see T-documents, page 25
[30] The Delegate's statement at [15]
[31] The Delegate's statement at [16]
[34] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, page 23
[35] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, page 28-29 (Toohey J); page 41-45 (Gummow J); page 69‑75 (Kirby J)
[37] Bickle v State of Victoria [2020] FCA 168 at [15]- [22]
[38] [2012] FCA 770 at [180] (Yates J)
[44] D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014), 7.19-7.22
[48] Purvis v New South Wales [2003] HCA 62 at [236]
[49] Respondent's submission at [54]-[71]
[51] Mulholland v Australian Electoral Commission [2004] HCA 41 at [41]
[53] Pelechowski v Registrar, Court of Appeal [1999] HCA 19 at [51])
[56] Waters v Public Transport Corporation [1991] HCA 49 at [13]
[58] Waters v Public Transport Corporation [1991] HCA 49 at [38]
[59] Butcher v The Key King Pty Ltd [2000] ACTDT 2 at [32]
COMPLAINANT 202012
AUSTRALIAN CAPITAL TERRITORY
(1997) 191 CLR 1