Victorian Civil and Administrative Tribunal|2012-05-25

The applicant ("Mr Parr") has not satisfied me that, in respect of incidents occurring after 2005 and set out in my findings, the Equal Opportunity Act 2010 (the "2010 Act") and the Equal Opportunity Act 1995 (the "1995 Act") have been breached. In respect of the incidents complained of to the Commission in the complaint made by Mr Parr in 2005, I find that he is not permitted to apply under s 194 of the 2010 Act. On this basis, I have dismissed that part of his application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998. Among other things, that permits the striking out of all or a part of a proceeding if the proceeding is misconceived. In this case, the Tribunal lacks jurisdiction to entertain that part of the application.

Reading his application broadly and in the light of his evidence, Mr Parr claims victimisation. At the hearing, he also suggested that he had been discriminated against and sexually assaulted (or sexually harassed). I do not here set out the law concerning discrimination, and only deal with the law in relation to sexual harassment insofar as it concerns victimisation.
It is my view that Mr Parr's application solely concerns his victimisation claim. Although he mentioned other matters at hearing, he has not amended his application to include them.
Because the conduct allegedly constituting the claim occurred before 1 August 2011 (the commencement day of the transitional provisions in the 2010 Act and the day on which the 1995 Act was repealed), it is necessary for me to consider those transitional provisions. Those provisions are also relevant because, in respect of some of the conduct mentioned in his application, Mr Parr has lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission (the "Commission") in 2005. That complaint was lodged under the 1995 Act.

Section 193 of the 2010 Act applies to a complaint lodged under the 1995 Act before 1 August 2011. It only applies to such a complaint that has not been "finally dealt with" before 1 August 2011. As my later findings show, Mr Parr lodged a complaint with the Commission in 2005 but that complaint was finally dealt with before 1 August 2011. Section 193 therefore has no application to this case.
Section 194(2) of the 2010 Act provides:

(2) A person may make an application to the Tribunal under Division 2 of Part 8 about an alleged contravention of a provision of Part 3, 5 or 6 of the old Act that occurred before the commencement day if -

(a) the person did not lodge a complaint under section 105 of the old Act about the alleged contravention before the commencement day; and

(b) the alleged contravention, if proven, would have also been a contravention of a provision of Part 4, 6 or 7 of this Act, if this Act had been in force when the alleged contravention occurred.

The explanatory memorandum for the Bill which eventually became the Equal Opportunity Act 2010 has this to say about s 194 -

"A person may either bring a dispute to the Commissioner or make a direct application to the Tribunal about an alleged contravention of the old Act that occurred before the commencement day if a complaint had not been lodged under the old Act and the alleged contravention would also be a contravention of the Bill. It is intended to avoid a retrospective application of the Bill but to ensure the disputes can be brought about a pre-commencement contravention of a re-enacted provision. It will not allow a dispute to be brought about a contravention of a provision that was not re-enacted or about a matter that was previously dealt with as a complaint."

In the above quotation, "old Act" means the 1995 Act and "commencement date" means 1 August 2011.
Section 196 of the 2010 Act permits VCAT, whether by application or on its own initiative, to make orders it considers appropriate to resolve any difficulty arising because of the operation of the transitional provisions.

Section 103 of the 2010 Act prohibits victimisation. Section 104 defines victimisation. Under s 104, victimisation occurs (relevantly) where one person subjects or threatens to subject another person to a detriment because, or because the first person believes that, the other person, or that other person's associate, has done or intends to do a number of listed things. Relevantly here, the list includes making a complaint against any person under the 1995 Act, or alleging that a person has breached a provision of Part 5 of the 1995 Act, unless that allegation is false and not made in good faith.[1] The allegation must state the conduct constituting the breach, but need not state that the 2010 Act or a particular provision of it is breached. The matters listed in s 104(1) need not be the sole or dominant reason for the victimiser's conduct, but must be a substantial reason for it.
Sections 96 and 97 of the 1995 Act are (relevantly) to the same effect. In s 97(1)(g), there is a reference (among other things) to Part 5 of the 1995 Act. That prohibits sexual harassment in various areas of activity.

Mr Parr's claim is that Steamrail victimised him. The effect of the transitional provisions in the 2010 Act is that such a claim can only be made (if the conduct to which it relates occurred before 1 August 2011) if certain conditions apply. Such a claim can only be made if the conduct breaches the 1995 Act and would also breach the 2010 Act, if it had been in operation at the time.
Mr Parr's claim is that Steamrail banned him from its organisation indefinitely, after it became aware that Mr Parr had gone to the Police with three teenage boys who alleged to the Police that a member of Steamrail had sexually assaulted them. In my view, such a claim is capable of being characterised as Steamrail subjecting Mr Parr to a detriment because, through him, teenagers alleged to the Police that a member of Steamrail had conducted himself in a way which was not only capable of constituting sexual assault, but was also capable of constituting sexual harassment. In this way, the provisions about sexual harassment in the 1995 Act and the 2010 Act become relevant.
Both of those Acts prohibit sexual harassment of an employee by another employee or by an employer of both the employees. But the definitions of employment, employer and employee in each are different. The sexual harassment provisions of the 1995 Act do not cover people who work in unpaid or voluntary capacities. But the sexual harassment provisions in the 2010 Act do.[2]
Both Acts contain the same provisions about sexual harassment of a member of a club by another member. But each define "club" differently. Under s 4(1) of the 1995 Act, club is defined as follows -

club, except in section 78, means a social, recreational, sporting or community service club, or a community service organisation -

(b) that directly or indirectly receives any financial assistance from the State or a municipal council;

Under s 4(1) of the 2010 Act "club" is defined in this way -

club means an association of more than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that -

(a) has a licence (other than a temporary limited licence or a major event licence) to supply liquor under the Liquor Control Reform Act 1998; and

(b) operates its facilities wholly or partly from its own funds;[3]

Both Acts contain similar provision about sexual harassment in the course of the provision of services.[4] These would apply to the extent that it can be said Steamrail provides services to its members.

As appears from my findings, Mr Parr complained to the Commission in 2005 under the 1995 Act. The Commission declined to entertain the complaint. Mr Parr did not request its referral to VCAT within time, and the Commission dismissed the complaint. I say something about this process.
Under s 108 of the 1995 Act (as in force in 2005), the Commission may decline to entertain a complaint on various grounds. One of these is that the complaint lacks substance. Under s 108(2), a complainant may, within 60 days after receiving notice of the Commission's decision to decline the complaint, require the Commission to refer the complaint to VCAT for hearing. That requirement must be made by written notice. Under s 108(3), the Commission is obliged to comply with such a requirement.
Under s 108(4), if a complainant does not make such a requirement (that is, within time), the Commission may dismiss the complaint and the complainant "may take no further action under this Act in relation to the subject matter of the complaint". Section 108(5) requires the Commission to give notice to the parties of the dismissal of the complaint under that provision.

I have already said what evidence is before me. Before the commencement of the hearing, there was handed up a statement by a friend of Mr Parr. The statement set out what evidence would be given if the friend were called to give evidence. He was not called to give evidence. In my view, it was unnecessary to do so because the statement related primarily to the circumstances of the friend's expulsion from Steamrail - circumstances quite different from those of Mr Parr. Apart from this, the statement set out what had been told to the friend by Mr Parr - and I have direct evidence from Mr Parr on these matters.
I found Mr Parr to be a truthful and reliable witness. There was one respect in which I found his evidence to understate matters. His evidence was that, unless provoked, he was not verbally aggressive to other Steamrail members. At the hearing, he was often volatile, becoming angry and shouting at times. In my view, he minimises the extent of his aggressive behaviour. Subject to this, I accept his evidence.
For Steamrail, Mr Wolverson (the current Chairman of the Board of Steamrail) and Mr Harrison (another member of its Board) gave evidence. I found Mr Wolverson to be a truthful and reliable witness and accept his evidence. However, because his involvement with Steamrail commenced only seven years ago, he had no knowledge and could not give direct evidence of the earlier history of Mr Parr and Steamrail.
Apart from a period from 1999 to 2003, Mr Harrison has been a member of the Steamrail Board throughout the period to which Mr Parr's claims relate. Indeed, he has been a founding member of Steamrail. I found Mr Harrison's evidence at times vague, and particularly confused about dates and times. Where that evidence conflicts with Mr Parr's evidence or with Mr Wolverson's evidence, I find that they have the clearer recollection and accept their evidence.

Steamrail is an incorporated association. It restores vintage trains and runs train trips for the public. Many children come to these events, and many teenagers have become members of Steamrail and help with its restoration work. Steamrail is managed by a Board. It has a depot at Newport.

Mr Parr joined Steamrail in the late 1980s or early 1990s. He was then 14 years old. Steamrail and its restoration work were his main hobby and his most valued hobby, both when he was a teenager and afterwards. He visited Steamrail regularly and often, undertaking many hours of restoration work.

On about 6 August 2004, three teenage members of Steamrail and Mr Parr were at the club's depot in Newport. The teenagers confided to Mr Parr that another member of Steamrail had sexually assaulted them. Mr Parr told them to go to the then Chairman of the Board, Mr Dunning, and tell him what had happened to them. They said that they had done so four months before, but that nothing had been done to help them.
Mr Parr then went with the boys to the police. He made a short statement, and the boys were questioned by the Police. Later, the member of Steamrail whom the boys had named was charged, convicted and sentenced for sexual offences in relation to the boys.
I accept Mr Parr's evidence that he did not tell any member of the Steamrail Board about the boys' allegations, or that he had gone with them to the police. I accept his evidence that he believed this might prejudice the police investigation, and also believed that nothing would be done if he went to the Board, because the member was a close friend of other Board members. He believed that any complaint would be useless.
Mr Harrison's evidence was that the then Chairman of the Board, Mr Dunning, after being informed by Mr Harrison of the boys' allegations, approached the police about the matter. I do not accept this evidence and prefer Mr Parr's evidence, for the reasons given earlier. Mr Parr's evidence was given without hesitation and without confusion.
Although it is not clear from the evidence how this happened, I find that, very shortly after Mr Parr went with the boys to the police, the Steamrail Board and membership came to know about the visit to the police and the allegations.
About a week after Mr Parr went to the police with the three boys, he was at Steamrail's premises. The Chairman of the Steamrail Board, Mr Dunning, walked up to him and said "I think you'd better go". Mr Parr understood this to mean that he was permanently banned from the club. I find that his understanding was correct.
Mr Harrison's evidence was that the reason for the ban was only Mr Parr's abusive and aggressive behaviour towards Steamrail members. Mr Dunning did not give evidence. Mr Parr's evidence was that the ban was because he helped the boys go to the police and report to the police their allegations. There is no direct evidence as to why the ban was imposed. The reason for it must be a matter of inference. Because of the view I have taken of the relevant law, it is unnecessary for me to make further findings about this matter.
On 9 November 2004, Mr Dunning wrote to Mr Parr's then solicitor suggesting that a meeting might be arranged at which an amicable resolution might be reached. I accept Mr Parr's evidence that he considered the letter as an invitation to make a deal for him to "keep quiet" about these matters and did not reply to it or attend any such meeting at that time.

My findings on this subject are based on Mr Parr's evidence. A copy of the complaint and the Commission's correspondence were not in evidence. However, I am satisfied that Mr Parr had a good memory of these events and what happened.
In early 2005, Mr Parr lodged a complaint with the Commission. The complaint claimed that, by banning him, Steamrail had victimised and discriminated against him in breach of the 1995 Act. It set out the 2004 incidents.
The Commission declined to entertain the complaint for lack of substance. Mr Parr did not require the Commission to refer the complaint to VCAT within the 60 day time limit allowed in s 108. The Commission then dismissed the complaint under s 108(4), in mid-2005.

Since what I have found to be the ban imposed by Steamrail on Mr Parr in 2004, Mr Parr has not made any formal written application to renew or resume his membership of Steamrail.
I accept Mr Wolverson's evidence that, shortly after he became Chairman of Steamrail's Board and in July 2010, he met with Mr Parr for about one hour to hear Mr Parr's side of the story and to try to find a way forward. Mr Parr said that this meeting occurred in October 2010, but I consider that Mr Wolverson gave clearer evidence on this matter and accept his evidence in preference to Mr Parr's.
It was clear from Mr Wolverson's evidence that he considered that Mr Parr had been a good worker for Steamrail, was disturbed by Mr Parr's story and, although he believed he did not have the power to reinstate Mr Parr, wanted some resolution and had considerable sympathy for Mr Parr's situation. Indeed, Mr Parr's own evidence was far less critical of Mr Wolverson than of other Steamrail members.
The only continuing member of the Steamrail Board from the time of the 2004 incident was Mr Harrison.
The matter was discussed at Board level and it was resolved that the issue of Mr Parr's reinstatement should be put to a vote at a general meeting of Steamrail members. That general meeting was then called and, according to Mr Wolverson, 43 members attended. Mr Harrison suggests that 60 members attended, but (for the reasons given earlier) I prefer Mr Wolverson's evidence on this point.
The meeting resolved unanimously that Mr Parr would not be reinstated. The date of the meeting is unclear, but it would appear that it followed relatively soon after the July meeting between Mr Wolverson and Mr Parr.
I accept Mr Wolverson's evidence that members present at the meeting told him that they had voted the way they did because of Mr Parr's abusive and aggressive behaviour toward them. I also accept Mr Wolverson's evidence that many members told him that, if Mr Parr's membership were reinstated, they would leave the Steamrail organisation. I also accept the evidence of Mr Harrison and Mr Wolverson that Mr Parr had never been aggressive or abusive to them. I find that the meeting's decision was not communicated to Mr Parr until he went to the club in early 2011.
In September 2010, two articles appeared in the Herald Sun newspaper. These articles were critical of Steamrail, alleging that it had allowed some of its members to sexually abuse minors, had been "soft" on predators, and mentioning Mr Parr's claims of sexual assault dating from 1994 and being banned from the club for advising minors to go to the police about the sexual assault which had occurred. There is no evidence upon which I can make findings about whether the meeting and the vote occurred before or after the publication of this material. At the most, it can be said that it is likely (although not necessarily probable) that the meeting occurred very shortly after July 2010.
I accept Mr Parr's evidence about how he discovered the ban. In early 2011, he went to Steamrail's depot to see what the club's attitude to him might be. He was approached by a man he did not know. The man asked his name. When Mr Parr told him, the man said "Fuck off" several times and then "You're not meant to be here. You know you're banned. You know you're not allowed in". Mr Parr then told the man to "Fuck off" and a loud altercation between the two followed. The police were called and attended the depot. I do not accept Mr Parr's evidence that the altercation was not particularly abusive and lasted only two minutes. I find that it was heated and abusive on both sides and lasted longer. Mr Parr left the depot and has not since returned.

Allegations about these incidents were included in a complaint lodged by Mr Parr with the Commission in 2005. The Commission declined to entertain the complaint. Mr Parr did not require its referral to VCAT. The Commission then dismissed the complaint. Section 108(4) prevents Mr Parr from taking any further action under the 1995 Act in relation to the subject matter of the complaint.
There is no provision in the 2010 Act that permits fresh complaints to be lodged under the 1995 Act, after the repeal of that Act on 1 August 2011. Section 193 of the 2010 Act deals with complaints lodged under the 1995 Act but before its repeal. But that section only applies to complaints not finally dealt with by 1 August 2011. I find that this complaint was finally dealt with before that date. Section 193 does not apply.
Section 194 of the 2010 Act might otherwise permit Mr Parr to apply under the 2010 Act in respect of the 2004 incidents. But the section does not apply where a complaint under the 1995 Act has been lodged.
While I accept that the Tribunal can make orders under s 196 of the 2010 Act to resolve difficulties arising because of the operation of the transitional provisions (which include s 194), I do not propose to exercise that discretion in Mr Parr's favour for two reasons. First, the operation of s 194 is, in my view, clear in this case and causes no difficulty requiring resolution. Second, the purpose of s 194 is to stop "double dipping". That is, where a complaint has been lodged under the 1995 Act, one cannot re-litigate or re-visit the matter under the 2010 Act. To allow these matters to be re-visited in a fresh application under the 2010 Act where a complaint was already lodged and finally dealt with some seven years ago, would be contrary to that purpose.
Since ss 193 and 194 do not permit the inclusion in this application of material included in the 2005 complaint, this application must be dismissed to that extent. I have done so under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). That permits the Tribunal to dismiss all or any part of a proceeding that it considers misconceived. I have done so on that basis.

This matter is not covered in the 2005 complaint. Section 194(2) applies to it. This is because the incidents in 2010 and 2011 occurred before 1 August 2011. But an application under s 194(2) can only be made about an alleged breach of Part 6 of the 1995 Act (the prohibition of victimisation) if that alleged breach would, if proved, be a breach of Part 7 of the 2010 Act (the prohibition of victimisation) assuming that the 2010 Act was operative when the incidents allegedly occurred.
On its proper interpretation, Mr Parr's claim is that Steamrail continued his ban, not because of his 2005 complaint, but because he helped the teenage boys make their allegations of sexual assault to the police in 2004.
The victimisation provisions in both the 1995 Act and the 2010 Act appear in a separate part of the Act. They are separated from the parts dealing with the prohibition of sexual harassment, or the prohibition on discrimination. Those parts are limited to specify areas of activity (for example, employment, clubs and goods and services). The victimisation provisions are written in terms of "person" and do not refer to specified areas of activity.
Section 104(1)(g) of the 2010 Act covers allegations of breach, not just of that Act, but of the 1995 Act. There are three elements in the formulation of victimisation. The first is detriment. The second is the nature of the allegation made. The third is that one of the reasons listed in the provision defining victimisation (here, the making of the allegations) must be a substantial reason why the victimiser imposed the detriment. As far as the allegation is concerned, even though a relevant provision of the Act or even the Act itself need not be mentioned, the allegation must in some way be linked or be capable of being linked with the Act.
I first deal with the element of detriment. I am satisfied that Steamrail imposed a detriment on Mr Parr when it continued his ban from the organisation. In my view, it was not necessary that Mr Parr apply for membership, because the ban indicated that any application made by him would not be accepted.
The second element is the nature of the allegation. I am satisfied that the teenagers were persons associated with Mr Parr. This is because he helped them to go to the police. I am satisfied that the allegation made by the teenagers is capable of being characterised, not only as a criminal offence, but a sexual harassment in breach of the 1995 Act and the 2010 Act.
There are three possible provisions under which such an allegation might fall. The first is clubs. I am not satisfied that Steamrail is a club within the meaning of either the 1995 Act or the 2010 Act. While under the 1995 Act Steamrail might be a social, recreation or community service organisation, there is no evidence that it occupies Crown land or that it receives direct or indirect assistance from the State or a Municipal Council. Under the 2010 Act, while Steamrail may be an association for a social or other lawful purpose, there is no evidence that its membership exceeds 30, that it has a licence to supply liquor (other than a temporary or major events licence) or that it operates its own facilities wholly or partly from its own funds.
The second possible category is employment. While "employee", "employer" and "employment" under the 2010 Act includes work done in an unpaid or voluntary capacity in connection with the prohibition on sexual harassment in that Act, there is no similar provision in the 1995 Act. To the extent that s 194 requires a re-enactment of a provision in the 1995 Act by the 2010 Act, there may be no such re-enactment in relation to the prohibition of sexual harassment in employment. I note that, while the explanatory memorandum says that this is what s 194 requires, the section itself does not specifically say this and appears to me to be broader. However, given my conclusion, it is unnecessary for me to express a definite view on this.
The third possibility is sexual harassment in the provision of goods and services. In this respect, both the 1995 Act and the 2010 Act contain similar prohibitions. I am satisfied that the allegation is capable of being characterised as sexual harassment occurring in the course of the provision of services by the club to these young members. The services would be the club's services of providing a forum in which to socialise and perform work on vintage trains.
The third element of victimisation is that the allegation must have been a substantial reason for the victimiser's decision. It need not be the dominant or sole reason. I am not satisfied that the third element has been made out. I am not satisfied that the allegation was a substantial reason for the decision made at the meeting of members to continue Mr Parr's ban. The only evidence about the reasoning of the members is general and is that Mr Parr's abusive behaviour was a factor in the decision. There is no evidence about how many of the members voting at that meeting had that reason in mind. There is no evidence at all that they had in mind any other reason, such as the allegation made. It would need to be a matter of inference. I am not prepared to draw that inference because there is insufficient evidence to do so. Moreover, it would need to be established that a majority of the members voting at the meeting had that reason as a substantial reason for voting in a particular way. There is no evidence on which I could base such a finding.[5]
I conclude that the claim of prohibited victimisation is not proven. It is not proven either under the 1995 Act or the 2010 Act. The claim is dismissed.

[1] See 2010 Act s 104(1)(b) & (g), (2) & (3)

[2] See 1995 Act ss 4 and 86; 2010 Act ss 4 and 93.

[3] For the prohibition of sexual harassment by members of clubs, see the 1995 Act s 94; and the

[4] 1995 Act ss 4 and 92; 2010 Act ss 4 and 99.

[5] As to this see City of Perth v DL (1996) EOC 92-796; the decision of the Full Court of the Western Australian Supreme Court was not, in this respect, altered by the High Court's subsequent decision on Appeal.

Control Reform Act 1998

Parr v Steamrail Victoria (Anti-Discrimination) [2012] VCAT 678 (25 May 2012)

Parr v Steamrail Victoria

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Parr v Steamrail Victoria (Anti-Discrimination) [2012] VCAT 678 (25 May 2012)