Duggan v Belmont 16 Foot Sailing Club Ltd

NCAT Administrative and Equal Opportunity|2015-10-19

Solicitors: M Duggan (Applicant in person) Berryman Partners (Respondent) File Number(s): 1510137

Judgment

These proceedings involve a complaint of age discrimination by a member of a registered club against the club. The applicant, who is 51 years old, claims that the club has discriminated against him on the grounds of his age, by changing the rules of a particular competition to preclude members over the age of 25 from obtaining club championship points when competing in a particular class of race.
The club claims that it was entitled to introduce the new rule. It relies upon exemptions in the anti-discrimination legislation concerning the exclusion of people from participation in a sporting activity and special needs programs and activities.

RELEVANT LEGISLATION

Part 4G of the AD Act is entitled "Age Discrimination." Subsections 49ZYA(1)(a) and (2) of the AD Act, which are in that Part, provide: "49ZYA What constitutes discrimination on the ground of age (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator: (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or… (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group".
Subsections 49ZYP(2) and (3) of the AD Act provide: "49ZYP Registered clubs … (2) It is unlawful for a registered club to discriminate against a member of the registered club on the ground of age: (a) by denying or limiting access to any benefit provided by the club, or (b) by depriving the member of membership of the club or varying the terms of that membership, or (c) by subjecting the member to any other detriment. (3) Nothing in subsection (1) or (2) applies to or in respect of a registered club: (a) that has as its principal object the provision of benefits for persons who are of a particular age or age group, or (b) so as to prevent the retention by the club of different categories of membership for members of different ages or age groups".
Section 49ZYR of the AD Act, which is in Part 4G, provides: "49ZYR Special needs programs and activities Nothing in this Part applies to or in respect of anything done to afford persons who are of a particular age or age group access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities."
Section 49ZYW of the AD Act, which is also in Part 4G, provides: "49ZYW Sport (1) Nothing in this Part renders unlawful the exclusion of persons of particular ages from participation in any sporting activity. (2) Subsection (1) does not apply: (a) to the coaching of persons engaged in any sporting activity, or (b) to the administration of any sporting activity, or (c) to any sporting activity prescribed by the regulations for the purposes of this section."
No sporting activities are prescribed by the Anti-Discrimination Regulation 2014 (NSW), for the purposes of s 49ZYW. Nor were any sporting activities prescribed in the repealed Anti-Discrimination Regulation 2009 (NSW), which was in force until 28 August 2014.
Section 104 of the AD Act provides: "104 Proof of exceptions Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent."
Section 108 of the AD Act relevantly provides: "108 Order or other decision of Tribunal (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: … (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, … (g) decline to take any further action in the matter. (3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate."

DOES THE REGISTERED CLUBS PROVISION SECTION 49ZYP APPLY?

There is no dispute that the Sailing Club is a registered club or that Mr Duggan is a member of the Sailing Club within s 49ZYP of the AD Act.
Mr Duggan submits that, in issuing the 2014-2015 Sailing Instructions and Rules, the Sailing Club breached s 49ZYP of the AD Act. He says that the Club championship trophy and fastest time trophy are benefits of sailing with the Club and that his access to those benefits has been denied or limited by the imposition of the new rules, within s 49ZYP(2)(a) of the AD Act. Mr Duggan also relies upon s 49ZYP(2)(c) and submits that he has been subjected to a detriment by the imposition of the new rules.
At the hearing, Mr Duggan clarified that the benefit to which he claims he was denied access was the opportunity to compete for the club championship trophy and fastest time trophy. It is not his submission that, had he been given that opportunity, he would have won either trophy.
Mr Santone, counsel for the Sailing Club, submitted that any benefit to Mr Duggan was uncertain and therefore not substantive, as he had no guarantee of winning a trophy. Such a benefit, in Mr Santone's submission, was not a benefit at all within s 49ZYP(2)(a) of the AD Act. Similarly, Mr Santone contended, the rule restricting the capacity to score points towards the Club championship trophy and fastest time trophy to members under 25 did not subject members over that age to a "detriment" within s 49ZYP(2)(c).
The word "benefit" is to "be construed broadly as any advantage or opportunity generally": Gardiner v NSW WorkCover Authority [2003] NSWADT 184 at [45]. It covers "any advantage … as long as it is real and not illusory": Ellis v Mount Scopus Memorial College (1996) EOC 92-824, cited in Walker v Wakehurst Golf Club Ltd [2011] NSWADT 213 at [55].
We accept Mr Duggan's submission that the effect of r 3.7.2 is to deny or limit his access to a benefit within s 49ZYP(2)(a) of the AD Act. That benefit is the opportunity to gain points towards the championship trophy and the fastest time trophy, and to have a chance of winning either or both trophies. The Sailing Club's submission that this was not a "benefit" within s 49ZYP was undermined by another of its submissions, to the effect that the reason for introducing the rule was to encourage younger members to join the Cherub class so that they could then transition to the 16 foot Sailing Club events. The opportunity for under 25s to gain points towards winning trophies, without competition from people over 25, was clearly considered by the Sailing Club as a benefit which would encourage members under the age of 25 to participate in the Cherub class competitions. We consider that it is also a benefit for members over that age to be able to compete in those competitions and to have the opportunity of winning those trophies.
In these circumstances, it is not necessary to consider whether s 49ZYP(2)(c) of the AD Act applies.
The Sailing Club relied upon s 49ZYP(3)(b), which relevantly provides that nothing in s 49ZYP(2) applies to or in respect of a registered club "so as to prevent the retention by the club of different categories of membership for members of different ages or age groups."
Mr Santone accepted that the Sailing Club does not have a category of membership for persons under the age of 25. However, he submitted that the term "categories of membership" should be interpreted to mean categories of membership as recognised in the general community, and that youths, or persons under the age of 25, was one such category.
We are not satisfied that the term "categories of membership" has the meaning ascribed to it by Mr Santone. It is followed by the words "for members of different ages or age groups" and, read as a whole, this phrase conveys a definite, recognised subgroup of membership restricted to members of certain ages. In our view, the term has its plain, ordinary meaning, being categories of membership recognised by a club's constitution or in some other formal way by a club. Even if Mr Santone's construction of s 49ZYP(3)(b) were correct, there is no evidence that the community recognises a category of membership as being persons under 25 and it is not something of which we consider we are entitled to take judicial notice.
For these reasons, we are not persuaded that s 49ZYP(3)(b) applies in the circumstances of this case.

HAS THE CLUB DISCRIMINATED ON THE GROUND OF AGE WITHIN SECTION 49Z(1)(a)?

The next issue is whether the Sailing Club has discriminated against Mr Duggan on the ground of age (putting to one side, for the moment, the applicability of exceptions to Part 4G of the AD Act). Mr Duggan relies upon the direct discrimination provision, s 49ZYA(1)(a).
We are satisfied that, by the imposition of r 3.7.2, the Sailing Club has treated Mr Duggan less favourably than in the same circumstances, or in circumstances which are not materially different, the Sailing Club treats or would treat a person who is not of that age or age group (the relevant age group being people over the age of 25). It has done this by excluding him from eligibility to earn points towards the club championship trophy and the "most fastest time" trophy. We are also satisfied that it has done so on the ground of Mr Duggan's age (that is, on the ground that he is over 25 years old). So much is clear from the terms of r 3.7.2.

DOES THE SPECIAL NEEDS EXCEPTION APPLY?

At the hearing, Mr Santone sought to rely upon s 49ZYR of the AD Act (entitled "Special Needs Programs and Activities"). The Sailing Club had not referred to this provision in its written submissions filed with the Tribunal.
The Tribunal had some hesitation about allowing the respondent to rely upon this exception at this late stage of the proceedings, particularly in circumstances where it was legally represented and the applicant was not. However, it granted leave to the respondent to raise the exception, subject to giving the applicant an opportunity to reply in writing to the new submission, following the hearing. Ultimately the applicant decided not to avail himself of that opportunity. In fairness to the applicant, the Tribunal has confined itself to a consideration of the application of s 49ZYR strictly on the basis put forward by the respondent in oral submissions.
Mr Santone submitted that r 3.7.2 was introduced as part of a package of measures to encourage younger members to join the Cherub class so that they could later transition into the 16 foot Sailing Club events. Mr Santone referred to the Club's objects of promoting "sailing generally, and, in particular, the 16 ft skiff sailing class." When questioned by the Tribunal about what "facilities, services or opportunities" under 25s were given access to as a result of r 3.7.2, Mr Santone said that the facilities included the free use of the Sailing Club's boatshed and the opportunities included participation in the races in the Cherub class. He submitted that the Tribunal should approach the application of s 49ZYR by looking at the "global package" as to what was made available to members of that age group after the Board's meeting of 25 March 2014.
Mr Duggan submitted that s 49ZYR was irrelevant and did not apply in the circumstances of the case. He said that that provision was concerned with special provisions made for people, such as those which may need to be adopted to accommodate a person's disability.
The onus is on the respondent to establish that an exception, such as s 49ZYR, applies: AD Act, s 104.
Section 49ZYR has not been subject to any substantive consideration by tribunals or courts, as far as the Tribunal is aware. An equivalent provision, s 21 of the AD Act in Part 2 of that Act ("Racial Discrimination"), was the subject of consideration by the former Administrative Decisions Tribunal ("ADT") in Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 ("the SUPRA case"). In that case, the ADT commented, relevantly (at [89] and [93]-[94]): "89 The clear intent of s 21 is to permit what is often referred to as affirmative action in order to meet the special needs of people of a particular race, or to assist people of a particular race to overcome past and present disadvantage. Obvious examples of activities which would appear to fall within s 21 are special health and legal services for Indigenous Australians and programs of special entry to medical and law schools for Indigenous Australians. … 93 In order for the respondents in this case to successfully argue that their activities fell within s 21 there would need to be evidence of their state of mind in acting as they did and evidence of the special needs of people of the particular race, or evidence of the fact that people of the particular race did not enjoy equal access to the facilities, services or opportunities in question. By virtue of s 104 of the Act the respondents bear the burden of proving that their activities fall within the exception provided by s 21. 94 In this case we have found that the policy of denying "full fee paying overseas students" concessional travel on public transport discriminated against the applicants on the ground of their nationality because they were treated less favourably, on the ground of their nationality, than people of another nationality, namely Australians, in the same or similar circumstances. For s 21 to apply it would be necessary for the respondents to prove that this practice was followed to cater for the special needs of people of Australian nationality, or to assist people of Australian nationality to overcome past and present disadvantage. There was no evidence of any of these matters."
We do not accept Mr Duggan's submission that s 49ZYR is only concerned with meeting the special needs of people. Although it applies when measures are taken to meet the special needs of a particular age group, it also applies when measures are taken to promote equal or improved access for persons of that age group to facilities, services and opportunities.
The expression "anything done to afford persons" in s 49ZYR connotes purpose. Thus, it must be shown that the objective of the measure or measure taken by the registered club was, relevantly, to afford persons of a particular age or age group access to facilities, services or opportunities to promote equal or improved access for those persons to facilities, services and opportunities. As the ADT made clear in the SUPRA case, it is necessary for a respondent to adduce evidence of purpose.
There is little direct evidence as to the purpose of introducing the measures determined by the Board of the Sailing Club at the meeting held on 25 March 2014. Only an extract from the minutes of that meeting is in evidence, and that only records the motions which were passed. Mr Berryman's statement records that "…in response to submissions the Club agreed to the reintroduction of the Cherub Class on conditions to design to encourage the transition of members sailing in the Cherub Class to move to the 16ft Skiff class. The role of the Cherub Class within the club is to develop the skills of the younger sailors at the Club so that they are able to sail in the 16ft Skiff Class which requires the highest level of those skills. The conditions imposed on the reintroduction of the Cherub Class were integral to the Clubs [sic] decision to reintroduce the Class in the absence of those conditions the Clubs [sic] decision of June 2012 would not have been changed."
Mr Berryman's evidence was that, at least in 2012, "too many Cherub sailors were continuing to sail in the Cherub class and too few were progressing to the 16ft Skiff Class."
The submissions made to the Board, to which Mr Berryman referred in his statement, are in evidence. They advocate the benefits of the Cherub class for progressing sailors to the 16 foot Skiff class and recommend building up the ranks of 17-25 year old sailors as part of the "16ft skiff rebuilding program."
We accept Mr Berryman's evidence that the purpose of the "conditions" of the reintroduction of the Cherub class was to encourage the transition of Cherub class members to the 16 foot Skiff class. We also accept that the purpose of retaining the Cherub class was to develop the skills of younger sailors at the Sailing Club so that they could then be transitioned to the 16 foot Skiff class. This is not unambiguously a purpose of affording under 25s "access to facilities, services or opportunities … to promote equal or improved access for them to facilities, services and opportunities." The purpose appears to have been more concerned with promoting participation in the 16 foot Skiff class, which Mr Santone emphasized was the "premier" class at the Club, as reflected in the Club's name.
The Sailing Club's making of r 3.7.2 of the 2014-2015 Sailing Instructions and Rules did not afford members under the age of 25 access to the facilities or opportunities identified by Mr Santone. Prior to the introduction of the rule, such members could already participate in races in the Cherub class. The access to other benefits, such as free use of the boat shed for under 25s, was achieved in other ways (not through the rules). Further, the Sailing Club did not address the second limb of s 49ZYR by explaining how it claimed r 3.7.2 was designed "to promote equal or improved access for [under 25s] to facilities, services and opportunities."
For these reasons, we are not satisfied that the Sailing Club has made out its case that r 3.7.2 was introduced by the Board to afford members under the age of 25 access to facilities, services or opportunities to promote equal or improved access for them to facilities, services and opportunities, in the ways the Club submitted.
In the circumstances, the Club has not discharged the onus of demonstrating that s 49ZYR applies.

DOES THE EXCEPTION FOR SPORT IN SECTION 49ZYW APPLY?

The Sailing Club also submits that it has not contravened ss 49ZYA or 49ZYP of the AD Act, due to the operation of s 49ZYW of that Act. Section 49ZYW provides that nothing in Part 4G of the AD Act renders unlawful the exclusion of persons of particular ages from participation in any sporting activity. Again, the Sailing Club has the onus of proving that this exception applies.
Mr Santone accepted that r 3.7.2 did not exclude Mr Duggan from participation in the physical activity of the Cherub class racing. However, he said that, on a proper construction, s 49ZYW applied to the "sporting activity" characterised by particular competitions. He said that the competitions for the club championship trophy and "most fastest time" trophy were events within an event (the overarching event being the physical race), and exclusion from both of those activities enlivened s 49ZYW. He referred to the beneficial nature of the AD Act in support of this construction.
In response to the Sailing Club's reliance upon s 49ZYW of the AD Act, Mr Duggan submits that it does not apply. This is because he says he was not being excluded from participation in the club championship heats but was denied the benefits of being recorded as a club champion. He submitted that the intention of s 49ZYW was to allow the facilitation of organisation for competition on an age basis that allowed fairer competition. He said that this was not the reason for the new rule: the Sailing Club had stated that the purpose of the new rule was to promote the 16 foot Sailing class.
In our view, the circumstance that the AD Act is beneficial legislation points to adopting the opposite construction of s 49ZYW to that advocated for by Mr Santone, as that provision is an exclusion from the operation of the beneficial (anti-discrimination) provisions. However, as Magistrate Hennessy observed in Lawson v State of New South Wales (Housing NSW) [2012] NSWADT 127 at [19]: "not every provision is open to be construed beneficially as distinct from strictly. Provisions must be interpreted by analysing their language and purpose: Rose v Secretary, Department of Social Security (1990) 92 ALR 521 at 524."
Having regard to the language and purpose of s 49ZYW, it is our view that the words "exclusion of persons of particular ages from participation in any sporting activity" refer to excluding people of particular ages from physical participation in a sporting activity, and not to the way in which such participation is assessed or rewarded. That is the ordinary meaning of the words.
It follows that the respondent has not established that s 49ZYW applies in the circumstances of this case.

Outcome

For the above reasons, we find that Mr Duggan's complaint of age discrimination is substantiated.
In his complaint to the President of the Anti-Discrimination Board, the remedy Mr Duggan sought was the removal of certain rules in the 2014-2015 Sailing Instructions and Rules, including r 3.7.2. At the hearing, Mr Duggan withdrew his application for orders relating to rules other than r 3.7.2. He agreed, in response to a question from the Tribunal, that an appropriate order could be made under s 108(2)(b) of the AD Act, which permits the Tribunal to make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by the AD Act.
Mr Santone submitted that, if the Tribunal found the complaint to be substantiated, it should decline to take any further action in the matter, pursuant to s 108(2)(g) of the AD Act. He advocated what he described as a "de minimus" approach on the basis that any benefit of which Mr Duggan was deprived as a result of r 3.7.2 was uncertain and amorphous.
Mr Duggan submitted, in reply, that the Tribunal should not underestimate the impact of r 3.7.2 or the significance of the benefits conferred by the club championship trophy. The benefits of being able to compete for that trophy included, in his submission, promoting a healthy lifestyle and improving competitors' mental health. He also said in evidence that the benefits of winning the trophy included gaining the respect of others, an increase in self-esteem, being part of the history of the Club and having one's name, or the name of one's boat, appear on the Club noticeboard.
We agree with Mr Duggan's submission that the opportunity to compete for the club championship trophy is a real benefit to members. We also accept that the opportunity to compete for the "most fastest times" trophy confers a substantive benefit on members.
Accordingly, we have determined to make an order pursuant to s 108(2)(b), enjoining the Sailing Club from continuing or repeating the unlawful conduct constituted by the inclusion of r 3.7.2 in the 2014-2015 Sailing Instructions and Rules. Such an order may extend to conduct of the respondent that affects persons other than the complainant or complainants if, having regard to the circumstances of the case, the Tribunal considers that such an extension is appropriate (AD Act, s 108(3)). As the unlawful rule applies generally to members competing in the Cherub class, we consider that such an extension is appropriate in the circumstances of this case.
An order may be made enjoining the respondent from making a rule "to the same or similar effect" as the rule which caused the respondent to contravene the anti-discrimination legislation, and we consider that such an order is warranted in this case: Sunol v Burns [2015] NSWCATAP 207 at [39].
We therefore order that the respondent is enjoined from continuing or repeating the conduct of making and applying sailing competition rules in the Cherub class which preclude competitors over the age of 25, or the boat of competitors over the age of 25, from scoring points in the Club Championship series or the most fastest times trophy, and rules to the same or similar effect. 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: 28 October 2015

Anti-Discrimination Regulation 2014(NSW)

Anti-Discrimination Regulation 2009(NSW)

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