Considine v Legal Aid Commission of NSW

Dispensing with a Hearing

1. Section 50 of the Civil and Administrative Tribunal Act 2013 (CAT Act) permits the Tribunal to make an order dispensing with a hearing, if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any documents or material provide to the Tribunal: s 50(2).
2. Prior to making such an order to dispense with a hearing, the Tribunal must first afford the parties an opportunity to make submissions about the proposed order and take such submissions into account: s 50(3).
3. Section 50 of the CAT Act requires the Tribunal to determine for itself whether issues for determination can be adequately determined in the absence of the parties once the Tribunal has provided an opportunity to the parties to make submissions about the proposed order and considered the parties' submissions.
4. On 21 October 2021, the Tribunal made an order that the summary dismissal hearing be listed for 25 January 200 and an order that: By 20 January 2022, all parties are to notify the registry as to wherever, in their respective views, the application for summary dismissal can be determined on the papers without an oral hearing.
5. On 10 January 2022, the Respondents wrote to the Registry requesting that the summary dismissal application be determined on the papers without the need for a hearing. On 17 January 2022, the Tribunal made orders that the summary dismissal application be determined on the papers without the need for a hearing.
6. I am not satisfied that the Order made on 17 January 2022 dispensing with a hearing was made pursuant to s 50 of the CAT Act if Mr Considine did not have an opportunity to make submissions about the proposed order.
7. On 18 January 2022, Mr Considine sent an email to the Registry that he was not agreeable to the summary dismissal application being determined on the papers as the most important aspect of his claim was that Ms Bennett was not acting in good faith within the meaning of s 26A(1) of the ADA.
8. Mr Considine in his submissions of 18 January 2022 submits that the application for summary dismissal should be rejected for the following reasons. As to s 126A, the word 'person' applies to Ms Bennett and that the exemption is not applicable because she was not acting 'in good faith'.
9. Mr Considine explains that the conduct was not done in good faith because it was a 'degrading rejection', a suggestion that he was the defendant and the suggestion that he wait in the men's toilets.
10. Mr Considine submits that Ms Bennett herself would be exempt if she acted in good faith and not the Respondents.
11. Mr Considine says that Ms Bennett's conduct was not done for the purposes of or in the course of the program as he was never part of the program and never received any services from Ms Bennett or Legal Aid or NRCLC. Nor did he ever seek any services from them.
12. Secondly, as to s 33, Mr Considine submits that he was not seeking a service from Ms Bennett but from Murwillumbah Local Court.
13. I am satisfied that Mr Considine has had an opportunity to make submissions and did in fact do so on 18 January 2022. I have taken these submissions in to account.
14. Having considered all of the evidence, materials and submissions Mr Considine has provided to the Tribunal, I am satisfied that I would not be assisted by a hearing as the matters raised by Mr Considine involve a statutory interpretation of the words 'person' and 'in good faith' in s 26A.
15. I am satisfied that this is an appropriate matter to be determined without the need for a hearing as the matters to be determined do not require the Tribunal to adjudicate on any conflicting evidence. For the purpose of this application, the Tribunal accepts Mr Considine's evidence as to Ms Bennett's conduct towards him on 24 September 2020.
16. There is substantial evidence before me as to the circumstances in which the access to the 'safe room' was refused. It is agreed between the parties that access to the 'safe room' was refused. It is also agreed that the access to the 'safe room' was refused because of Mr Considine's sex.
17. The critical issues to be determined involve an interpretation of s 126A as well as a determination whether any of the three respondents were persons who provided a service and if so whether DCJ refused to provide the service to Mr Considine.
18. I also take into consideration s 36(2) and (4) of the CAT Act and the guiding principle that the Tribunal must seek to give effect to facilitating the just, quick and cheap resolution of the real issues in the proceedings.
19. The Tribunal orders that the summary dismissal application is to be determined on the papers without the need for a hearing, pursuant to s 50 of the CAT Act.

The legislation

1. Section 33 of the ADA is in the following terms (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services.
2. Services is defined in s 4 of the ADA: "services" includes-- (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
3. Section 102 of the ADA is in the following terms: The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
4. Section 126A of the ADA is in the following terms: (1) Nothing in Parts 3-4C renders unlawful anything done by a person in good faith for the purposes of or in the course of any program or activity for which certification is in force under this section as a special needs program or activity. (2) The Minister may certify a program or activity to be a special needs program or activity if satisfied that its purpose or primary purpose is the promotion of access, for members of a group of persons affected by any form of unlawful discrimination to which this Act applies in an area of discrimination to which this Act applies, to facilities, services or opportunities to meet their special needs or the promotion of equal or improved access for them to facilities, services and opportunities. (4) Certification for a program or activity remains in force for the period specified in the certification or (if no period is specified) until the certification is withdrawn. (5) Certification may be withdrawn by the Minister at any time by giving notice in writing to the person who appears to the Minister to be the person who is in charge of the program or who has responsibility for the activity concerned. (6) A person who is in charge of a program or activity may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Minister under this section concerning the certification of the program or activity.

Applicant's Evidence and Submissions

1. The Tribunal has the President's summary of complaint of Mr Considine which contains the complaint and numerous pieces of correspondence between the parties including an unsigned statement by Ms Warren, a Lifeline Volunteer worker. I also have numerous emails from Mr Considine to the Registry.
2. Ms Warren in the statement dated 29 January 2021 explains that on 23 September 2020, she and Mr Considine visited Murwillumbah Local Court to see 'how it all worked and learn how to avoid running into the defendant.' Mr Considine had an application against his ex-partner for an ADVO. Ms Warren was Mr Considine's support person.
3. Sgt Moroney, the Police Domestic Violence Liaison Officer showed Mr Considine where the 'safety room' was located and where he would sit during the hearing 'so that he would feel more at ease.'
4. On 24 September 2021, the Sheriff knew of Mr Considine's matter and told him to go to the 'safety room'. Mr Considine was not permitted into the room. Mr Considine in his application to ADNSW wrote that when he attempted to enter the 'safety room', Ms Bennett said to him: 1. You can not come in here … are you the defendant? 2. This is the women's safety room only 3. I do not know what you can do but you can't come in here 4. Maybe go down the back near the men's toilets
5. Mr Considine's and Ms Warren's evidence is that Ms Bennett was dismissive of Mr Considine and he was greatly stressed that he could not wait in the 'safety room' as he understood he was entitled to.
6. Ms Warren describes Ms Bennett as having zero care factor, rude, dismissive, looking at him in a strange manner and speaking to him in an 'accusatory manner'.
7. Mr Considine claims that this conduct gives rise to direct discrimination by Ms Bennett and indirect discrimination by DCJ by 'denying equal opportunity to a person who is a male and who finds themselves looking for the same protection within the courthouse that is provided to females'. (email to the Tribunal 10 January 2022).
8. Mr Considine relies on two emails from Ms Mallon, Registrar Tweed Local Court dated 20 October 2021 and 6 November 2021. The email dated 20 October 2021 is in the following terms (relevantly): (Trish, Sheriff) may not be aware that the safe room is for the exclusive use of the domestic violence court advocacy service on this days. The room can be used by any person seeking a safe place on other days and this is where I'm sure the miscommunication has occurred with her. The support staff in the safe room are not my staff, they are from the women's domestic violence court advocacy programme in this more. I will contact the manager and I ask that she speak to her staff and remind them of the need to speak to everyone with respect, regardless of why they're appearing at court.
9. The email dated 6 November 2021 is in the following terms (relevantly): I spoke just Sarah (Bennett) and she was open and receptive to discussing the matters you raised in your email. Sarah acknowledges that you could have felt that you were not believed that you are the victim in the matter. She did notice that you appeared to be stressed by your attendance at court. She did feel that she had given you all the information she could at the time, for example, refer you back to the sheriff so that you could give a description of Ms Jonas to them. Also, that she would speak with Sen Con Moroney when she arrived to ask her as to whether you could enter the room. At the time she felt that she could not leave the safe room to find Sen Con Moroney or the sheriff on your behalf as she was attending to another client. Sarah does know the safe room is used by other people on other days, but did not admit you to the room as on a list day the room is for women who are at court for domestic violence matters. I raised that we are bound by the Code of Conduct and provided her with other options she can refer clients to on a busy list day, for example to the court registry staff.
10. Mr Considine disputes the truth of Ms Bennett's evidence as conveyed to Ms Mallon and says that when he entered the safe room it was empty but that later a woman and child entered.
11. Mr Considine accepts that as Ms Bennett was employed or an agent of NRCLC or Legal Aid that the employer is liable for her conduct: s 53 ADA.
12. Mr Considine submits that the exemption granted by the NSW Attorney General is not limited to women but applies to all victims of domestic violence.
13. Mr Considine submits in the email to the Tribunal 10 January 2022 that DCJ cannot rely on the exemption as they were not providing a service of legal assistance or were his advocates but were the supplier of the 'safe room': (DCJ) are responsible for the day-to-day running of the court process and the the [sic] actual placement of myself during the time I was there that day meant that I was completely in their hands with my movements around the courthouse that day. They had before due to my concern for my safety during the next days time at court, had shown me where I would be sitting in the courtroom and also they showed me how the safe room was also another option that I can use for the safety or be taken to. There was never a mention that the room was for females only. The DCJ did not have a sign on the door of the safe room stating it was for females only so I felt it was safe to believe that the DCJ and all involved in keeping me safe were in error to have taken me to the room that day.
14. Mr Considine submits that the reference to the 'person' in s 126A(1) is to Ms Bennett and not Legal Aid and he did not seek any services from Ms Bennett, however goes on to say that he did expect some service and safe haven as he was led to expect that he would receive on the day in court by DCJ and the Police Liaison Officer.
15. Mr Considine submits that Ms Bennett was acting in bad faith because she labelled him a 'defendant'.
16. Mr Considine experienced a feeling of distress, severe anxiety and PTSD. He feels very aggrieved at the encounter with Ms Bennett which he considers to be a degrading dressing down for being a male seeking safety. He submits that males that need safety in court are being denied the assistance which could be fatal or at least detrimental to the mental health of that male.
17. Mr Considine referred to the decision in Chapman v Women's Legal Resources Ltd [2005] NSWADT 276 (Chapman) and submitted that it was correctly decided but distinguishable from this matter because he never sought any service from NRCLC and that Ms Bennett was not acting in good faith by refusing him entry into the safe room and suggesting that he wait in the men's toilet.
18. Mr Considine also submits that the Exemption Certificate does not say that it is for women only and as such doesn't have the operation as asserted by the Respondents.

Respondents' Evidence

1. Ms Stiles is the Manager of the Women's Domestic Violence Court Advocacy Service Unit (Unit) employed by Legal Aid. In her statement she explains that the Unit administers 27 Services across the state of NSW. At [3] Ms Stiles says: WDVCASs provide information, advocacy, safety planning and referrals to assist women and their children who are or have been experiencing domestic and family violence, with their legal, social and welfare needs. WDVCASs also assist women to obtain effective legal protection through applications for ADVO.
2. On 18 April 1996, The Hon JW Shaw, NSW Attorney General said in the NSW Legislative Council (Parliamentary Debates (Hansard)) included as an annexure A to Ms Stiles' statement): The Government recognises that women need effective access to the court system if they are to use apprehended violence orders to provide them with protection from violence or the fear of violence in the home….The Government, apart from introducing measures to bolster legislative protection of victims of domestic violence, has also moved to enhance women's access to the court system in domestic violence matters. An amount of $1.5 million has been allocated to fund a statewide scheme, the Domestic Violence Court Assistance Program. The Legal Aid Commission administers this program and has called for applications from organisations to apply for funding under the scheme.
3. Legal Aid applied to the NSW Attorney General for a s 126A exemption of the ADA and it was granted in 1997 as a 'special needs program' (Exemption Certificate). The exemption is in the following terms (relevantly): …I have approved the application… that the Domestic Violence Court Assistance Program, including the Court Assistance Schemes be certified as a special needs program for an indefinite period (under s126A of the ADA).
4. The name of the program was changed from Domestic Violence Court Assistance Program to the Program in 2007 and since 1997 has always only provided services to women.
5. Legal Aid entered into an agreement with NRCLC to provide services. One of the services that NRCLC is contracted to deliver is to assist women involved in Apprehended Violence Order (AVO) applications and related domestic violence charge matters in courts including the Murwillumbah Local Court. It is a benchmark that NRCLC is to attend every Apprehended Domestic Violence Order list day at Murwillumbah Local Court.
6. The agreement required NRCLC to only employ appropriately qualified and experienced women to provide the services 'in accordance with the exemption under section 126A of the Anti-Discrimination Act 1977 (NSW) granted to the Program on 10 March 1997 as per the Notified Policy under clause 5.2(c) of the Schedule.'
7. The agreement for funding of services, in evidence as attachment E to Ms Stiles' statement sets out the obligations on the provision of services in clause 5 as including; to any Target Group, in a proper, timely and efficient manner and to a high ethical and professional standards, with the aim of meeting objectives.
8. The Target group is 'women aged 16 or older who are experiencing, or have experienced, domestic and family violence and their children'. The objectives include: Provide a best practise, specialist, trauma informed model of service delivery for women affected by domestic and family violence. Provide women experiencing domestic and family violence with information, advocacy, referrals and support throughout the court process, particularly in regard to apprehended violence orders.
9. Incorporated into the agreement to provide the Service is the Program Manual (attachment F to Ms Stiles' statement). Ms Stiles explains in her statement that the Manual includes guidance about the use of the Local Court safe rooms, in particular at clause 20: 20 Use of NSW Local Court safe rooms WDVCASs often used dedicated spaces within a courthouse, known as 'safe rooms', to meet with clients, primarily on an AVO list days. These rooms allow women who have experienced domestic and family violence to speak with WDVCAS workers and/or wait for their matter away from defendants. These spaces remain the property of DCJ, and WDVCASs must work in partnership with Local Court staff in relation to their use. WDVCASs must ensure that defendants are not granted entry to safe rooms, unless they are female defendants who are existing WDVCAS clients and/or considered the primary victim in a matter. If a male support person accompanies a client, WDVCASs can allow them into the safe room where appropriate, unless their presence will cause distress to other clients in the room. If a man attends a court as an applicant in an AVO or criminal charge matter and asks to use the safe room, the WDVCAS should arrange with Local Court staff to accommodate the man in another appropriate space within the court precinct so as not to cause distress to clients in the room. Safe rooms may also be used by other victims of crime with matters on AVO list day, unless their presence will cause distress to WDVCAS clients in the room. These situations should be dealt with on a case by case basis by the workout responsible for managing use of the room on the da
10. Ms Bennett's affidavit evidence is that she is employed as a Family and Domestic Violence Specialist worker. Part of her role involves attending the Murwillumbah Local Court when the ADVO matters are listed (list days). On list days, Murwillumbah Local Court provide a room so that Ms Bennett can provide Services. The Services include answering questions, providing information, offering other support and communicating with the Domestic Violence Liaison Officer in relation to her clients' cases.
11. Ms Bennett agrees that she did not permit Mr Considine to enter the safe room and explains that she did so because the Service she provides is limited to women who are victims of domestic violence and their children.
12. Ms Bennett's given account of the conversation with Mr Considine is in different terms to his. She denies that she raised her voice or called him a defendant.
13. Ms Waters' affidavit evidence is that she is the manager of the NRWDVCAS, which provides face-to-face services in 7 courts including Murwillumbah Local Court, which occurs once a month. Ms Waters' evidence is that NRWDVCAS has always and only ever provided services to women.

Power to dismiss a complaint

1. Power to summarily dismiss a complaint is exercised with extreme caution, particularly prior to the applicant having an opportunity to adduce and test evidence such as in this case. Karekar v TAFE Commission of NSW [2000] NSWADT 187 at [36].
2. This being a summary dismissal application, the Tribunal takes the facts alleged by Mr Considine at their highest, that is, it accepts Mr Considine's evidence and rejects any evidence led by the Respondents to the extent of any inconsistency. Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27].
3. The Respondents claim that the whole complaint should be dismissed on the ground that it is frivolous, vexatious or otherwise misconceived or lacking in substance.

Whether access to a room in a courthouse is a service

1. Mr Considine's complaint is that he was denied access to the 'safe room', which is a room inside the Murwillumbah Local Court on 24 September 2020 on the basis of his sex.
2. Section 4 of the ADA defines services as including: (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
3. As explained by Dawson and Gaudron JJ in IW v City of Perth (1997) 191 CLR 1, 'services' should be read as having its ordinary and broad meaning. Section 4 of the ADA defines services by indicating what is included, not what is excluded. Section 4 of the ADA give an indication of the type of services that are included but do not necessarily exclude other types of services.
4. In Walker v New South Wales [2003] NSWADT 13, the Tribunal at [29] found that access to the Parramatta Court complex was a 'service'. Ultimately whether or not access to facilities constitutes a service is a question of fact. Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 361.
5. DCJ submits that the 'safe room' is not a service as the allocation of rooms within the NSW court network is a necessary governmental function, used to meet its statutory functions of a court house. The purpose of allocating the rooms, it is submitted, is for the everyday working of the court system, so that matters and list days can run smoothly. The allocation of the rooms are not made based on the needs of consumers and rooms cannot be 'booked' by members of the public.
6. DCJ makes reference to State of New South Wales v Whiteoak [2014] NSWCATAP 99, but this case was in regard to whether the activities involved in the classification of male inmates was a 'service'. Secondly, DCJ's submission is that it allocated the room to be the safety room for females only on ADVO list days to WDVCAS. However DCJ has led no evidence that it made this decision based on a 'governmental function' or 'statutory duty': Whiteoak [217]
7. While it can be readily accepted that the public do not have any ability to decide how rooms in the Court are allocated and which services are provided in each room, it does not displace the fact that once those decisions are made by the Court, the public or a section of the public are entitled to enter these rooms, such as the 'safe room'.
8. Despite rooms not being able to be 'booked' by the public, the 'safety room' was a room that the public or a section of the public were entitled to enter. On 24 September 2021 a particular section of the public were allowed to enter. This particular section of the public were women who were subject to domestic violence and had matters, in which they were involved in, listed on that day.
9. The safe room is a place that the public or a section of the public is entitled or allowed to enter or use. The Tribunal finds that access to the 'safe room', which is a room inside the Murwillumbah Local Court is a service within the meaning of s 33 of the ADA.

Was the refusal to enter the safe room conduct under the Exemption Certificate/Certified Program.

1. Mr Considine submits that the certification does not operate in the circumstances to exempt the conduct from the ADA, as Ms Bennett was not acting in good faith.
2. Mr Considine submits that his exclusion from the safe room was not done for the purpose of or in the course of the program as he was not seeking advice or assistance but was simply seeking to sit in the safe room prior to his matter being heard.
3. DCJ submits that the Service, including NRWDVCAS at the Murwillumbah Local Court is a special needs program to proceed as a women's only service subject to the s 126A certificate provided to Legal Aid.
4. DCJ stresses that s 126A applies to 'persons' and is not limited in its application to the person to whom the exemption was provided but applies to the relevant program conducted in good faith. Its conduct of providing the room to so that the Service could be provided was done in good faith for the purposes of or in the course of the program.
5. Legal Aid submits that it is the administrator of the Program and that the Program is covered by the Exemption Certificate. The Program is delivered by NRCLC and that it is not liable under s53 of the ADA.
6. NRCLC relies on the Exemption Certificate granted to Legal Aid and submits that the program or activity on 24 September 2020 was carried out in good faith by Ms Bennett as part of her role of providing NRWDVCAS. It submits that on this ADVO list day, NRWDVCAS had exclusive use of the 'safe room' for the delivery of the program/activity.
7. As the history of the certification of the program demonstrates, the Program permits measures to be taken for the purpose of overcoming disadvantage experienced by women because of their gender and attributes shared by women. The Program includes activities to assist women to alleviate the disadvantage.
8. The purpose of the Program is to provide a range of additional services to support and protect women who are victims of domestic violence. One way in which this service supports and protects women who are victims of domestic violence is by supporting women in court as they seek the legal protection of an ADVO. The support in court is provided in a 'safe room'.
9. The evidence as to the scope of the Program is comprehensively explained by Ms Stiles by reference to relevant documents including: 1. Legislative Council Hansard - 18 April 1996, explaining the amendments to the domestic violence legislative and administrative scheme, including specifically the domestic violence court assistance program; 2. Certification of the Domestic Violence Court Assistance Program, including the Court Assistance Schemes as a 'special needs program' under s 126A of the ADA - undated letter; 3. Northern Rivers Women's Domestic Violence Court Advocacy Service - funding agreement 31 March 2017; and 4. Agreement for funding of services.
10. The evidence before the Tribunal is equivocal that on 24 September 2020, Ms Bennett was attending the Murwillumbah Local Court, as it was an ADVO list day for the purpose of providing services (NRWDVCAS) to women in the safe room pursuant to the funding agreement for between Legal Aid and NRCLC.
11. In Chapman, Mr Chapman telephoned the Domestic Violence Advocacy Service in Sydney carried out by Women's Legal Resources Ltd (WLR) and was informed that he could not be assisted as this was a women's service.
12. At the hearing WLR relied on an exemption for special needs programs and activities within the meaning of s 126A of the ADA.
13. Mr Considine relies on paragraphs [8]-[10] of the Chapman decision which states that: 8 Although headed 'Exemption for special needs programs and activities', s126A does not operate to exempt special needs programs and activities. Rather, it exempts a person's conduct in certain circumstances. 9 Section 126A(2) permits certification of a program or activity as a "special needs program or activity". Section 126A(1) exempts anything done by a person, in good faith, for the purposes of or in the course of such a certified (ie, special needs) program or activity. There is, therefore no general exemption under s126A, only certification. The confusion may arise from the misleading heading to s126A, and from the preceding provision, s126, which does empower the Minister to grant exemptions, by order published in the Gazette. 10 Although it is common and convenient shorthand to refer say, as Ms Chapman did, "We have an exemption", it is strictly correct for WLR to say instead "We have a certificate as a special needs program or activity". Certification may or may not lead to conduct being exempt in the circumstances. An exemption arises only when something is done "for the purposes of or in the course of" the certified program or activity, and is done in good faith.
14. I accept Mr Considine's submission that it is insufficient for the Respondents to simply rely on the Exemption Certificate. It must also be demonstrated that Ms Bennett acted in good faith, for the purposes of or in the course of the program.
15. I am satisfied, based on the undisputed evidence and materials before the Tribunal that the WDVCAP is a program that is certified in the Exemption Certificate. NRWDVCAS is part of the program. The next question is whether the conduct of excluding Mr Considine from the safe room was done for the purpose of or in the course of the program.
16. The conduct will be exempt if it is done for the purposes of or in the course of the program. It is clear from the evidence from all of the Respondents that the safe room was exclusively used for the purposes of or in the course of the Program.
17. Ms Bennett's evidence was that she refused Mr Considine entry into the safety room as the Service she was carrying out was only for women. The Service was being delivered in the safety room. Mr Considine's evidence was that shortly after he was denied entry a woman and her child entered the safety room.
18. I am satisfied that Mr Considine was refused entry into the safety room as the room was used exclusively to provide the Service to which the Exemption Certificate applied.
19. Having established that the conduct complained of was done for the purposes of or in the course of the program, I turn to consider whether the conduct was done in good faith.

Done by a Person in Good Faith

1. Section 126A(1) has the effect that certain unlawful conduct within the meaning of the ADA is rendered lawful if it is done by a person in good faith for the purposes of or in the course of any program or activity for which certification is in force as a special needs program or activity.
2. A reference to a person includes a natural or legal person. An act done by Ms Bennett is taken to be an act done by her and by her employer pursuant to s 53 of the ADA. No suggestion is made that Ms Bennett's conduct was unauthorised by the employer.
3. The term 'good faith' is not defined in the ADA. NRCLC submits the Tribunal should be guided by the general principles of contract law and suggests that acting in good faith means acting consistent with community standards of honesty, reasonableness and fairness but does not include an obligation to act in the interests of another party.
4. The last proposition is surely correct. In Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50; (2015) 236 FCR 199, Allsop CJ, Besanko and Middleton JJ observed that the usual content of the obligations of contractual duty of good faith include an obligation to act honestly, reasonably and with a fidelity to a bargain but that: None of these obligations requires the interests of a contracting party to be subordinated to those of the other. [289]
5. However, there is no contractual relationship between the Respondents and Mr Considine and the Tribunal does not consider it apt to interpret words in a statute based on the content of contractual duties.
6. When interpreting provisions in an Act, regard must be had to the purposes or objects of the Act; s 33 Interpretation Act 1987 (NSW); Thiess v Collector of Customs (2014) 250 CLR 664, 671-2 [22]-[23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
7. Section 126A of the ADA was introduced in 1994. Introducing the amending Bill (New South Wales, Parliamentary Debates (Hansard) Legislative Council, 4 May 1994 at 1832), the then Attorney General said: This procedure [of certifying the exemption] recognises that positive actions aimed at meeting the special needs of persons protected by the ADA should not be regarded as unlawful discrimination, and provides the safeguard of ministerial approval to ensure that only appropriate programs and activities are exempted
8. As to s 126A(2), the Minister may certify a program or activity only if: its purpose or primary purpose is the promotion of access, for members of a group of persons affected by any form of unlawful discrimination to which this Act applies in an area of discrimination to which this Act applies, to facilities, services or opportunities to meet their special needs or the promotion of equal or improved access for them to facilities, services and opportunities.
9. In Rees N, Rice S and Allen D, Australian anti-discrimination law 2nd ed (The Federation Press, 2014) 534 it is suggested that 'special measures' like s 126A exist so that steps can be taken 'for the benefit of people with a protected attribute in order to overcome disadvantage which has been experienced by people because of their shared attribute….As a general rule the conduct which is permitted in order to alleviate disadvantage experienced by people with a particular protected attribute is referred to as a special measure.'
10. Ms Bennett's conduct on 24 September 2020 was carried out consistently with the objects and purpose of the Program and pursuant to the funding agreement and the Manual, which forms part of the agreement. She correctly understood that the Program operated to assist women. I find that she was providing Services pursuant to the Program in good faith.
11. It may well have been that Ms Bennett was insensitive and dismissive of Mr Considine's concerns and that is regrettable, but these matters do not mean that she was not carrying out her role in providing the Program in 'good faith'. It is also evident from Mr Considine's materials that he was very aggrieved to be denied entry into the safety room because he was previously told by court staff that he could enter the safety room and he had a reasonable expectation that he could do so. However, there is no suggestion that Ms Bennett had any role to play in regard to the incorrect advice.
12. I find that the Exemption Certificate applies to the special needs program or activity carried out in the safe room in Murwillumbah Local Court. Ms Bennett's conduct of refusing Mr Considine entry into the safe room was conduct which is exempt from being found to be unlawful pursuant to s 126A, as it was done 'for the purposes of or in the course of' the certified program or activity and was done in good faith.
13. The Exemption Certificate applies to the special needs program or activity and is not limited to the person to whom the Exemption Certificate was granted. There is no requirement for the Exemption Certificate to explicitly state that the special needs program or activity applies to women only as the purpose of the Exemption Certificate is to make positive actions aimed at meeting special needs not be regarded as unlawful discrimination.

Conclusion

1. Having found that Mr Considine's whole claim cannot be regarded as unlawful discrimination because of the application of s 126A and the findings made above, there is no utility in the complaint continuing further.
2. Pursuant to s 102 of the ADA the whole complaint is dismissed on the basis that even if the conduct alleged or part of the conduct alleged if proven, it would not disclose a contravention of s 33 of the Act because of the exemption in s 126A of the Act.

Orders

1. The Tribunal makes the following orders: 1. The summary dismissal application is to be determined on the papers without the need for a hearing, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The whole complaint is dismissed pursuant to s 102 of the Anti-Discrimination Act 1977.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2022