On 18 February 2020 the President of the Anti-Discrimination Board received complaints of discrimination from Mr Derek Storey and Mrs Dongyu Storey against Blacktown City Council. Mr Storey lodged the complaints on his and Mrs Storey's behalf. Both were complaints of disability discrimination in the area of goods and services under the Anti-Discrimination Act 1977 (ADA).
The President accepted for investigation the conduct from 1 November 2019 to 18 February 2020.On 16 September 2020 the President's delegate declined the complaints under s 92(1)(a)(i) as lacking in substance. Mr Storey requested that the complaints be referred to this Tribunal under s93A of the ADA
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Legislative context
Section 92 of the ADA provides:
"92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the ADA the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).
Sections 49A and 49B of the ADA provide:
"49A Disability includes past, future and presumed disability
A reference in this Part to a person's disability is a reference to a disability -
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
49B What constitutes discrimination on the ground of disability
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator -
(a) on the ground of the aggrieved person's disability or the disability 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 does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
…"
Section 49M provides:
"49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -
(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) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."
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The applicant's case
Mr Storey complained that the Council refused to provide a service and/or provided them with a service on less favourable terms on the grounds of their disabilities, which were psychological.
The complainants made a complaint to the Council on 25 November 2018 about noise, smells and dust which they said was interfering with their enjoyment of their property. The noise was allegedly caused by large numbers of birds kept for commercial purposes by their neighbour at the rear.
A Council officer arranged to inspect the property. Mr Storey allegedly told the officer that the birds were affecting his and his wife's mental health.
He stated that a Council officer made derogatory and discriminatory comments to him including saying "You may be the problem" to Mr Storey, and after being told that Mr Storey had a disability, allegedly saying "If you weren't at home due to your disability, you wouldn't have an issue."
He alleged that the Council and/or its officers:
1. did not follow EPA Guidelines in assessing the noise levels,
2. were initially unwilling to install noise meters and claimed they did not have any when in fact they did,
3. gave the neighbours advance notice of inspections, which meant the neighbours moved some birds to comply with the rules,
4. claimed that the birds were quiet when they were not,
5. allowed the birds to remain, knowing that this was against the law, against recommendations and would cause them disadvantage and mental stress,
6. ignored the risks to health after being provided with medical evidence, and
7. accused him of lying.
Mr Storey provided additional material relating to the noise allegedly created by the birds which he claimed showed that the noise was above statutory limits between 22 and 26 November 2019, yet the Council had failed to act to order the nuisance be abated.
He submitted that the functions of inspecting and assessing the nuisance was a service provided by the Council and was described as such on the Council website.
He also provided medical reports regarding his and his wife's medical conditions and the effect the noise was having on their health. He claims that the noise from their neighbours is ongoing and has increased due to installation of a hot water heater. He also claimed that the Council was victimising them contrary to s 50 of the ADA by not releasing a December 2020 noise assessment to them and worsening treatment.
He suggested as a comparator, residents without a disability who complained the Council about noise from air conditioning units.
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Respondent's case
The Council stated that Mr Storey had made a complaint to the Australian Human Rights Commission (AHRC) on 29 March 2019 about the same issue. It was conciliated and terminated on 14 August 2019. Mr Storey did not elect to continue the complaint in the Federal court jurisdiction. The Council had received over 24 items of correspondence and numerous telephone calls from Mr Storey about the alleged nuisance since 24 November 2018, responded to these in writing, visited the property on 11 occasions and visited Mr Storey on 4 occasions. The interactions continued up to 18 February 2020.
The Council said its actions included requiring an aviary to be repositioned further from Mr and Mrs Storey's fence, requiring the neighbour to reduce the number of birds and installing noise meters to conduct a noise assessment over six days.
The Council disputed Mr Storey's account of what the Council officer allegedly said to him and said its notes of the conversation recorded that the officer said "If you are having lapses of mental health issues you best see your GP as this is out of my control."
The Council submitted that leave should not be granted because firstly the same subject matter had already been dealt with by the AHRC and this was a ground under which the complaint could be declined under s 92(1)(a)(v). Although the complaint to the Anti-Discrimination Board related to events after 14 August 2019 as well as prior to that date, the subject matter was the same.
The Council also submitted that the complaint lacked substance because the nature of the service had not been identified, there was no identified refusal to provide services, and the applicants had not identified how direct or indirect discrimination occurred in the provision of the services.
The Council did not dispute that it provided services within the meaning of the ADA but said that Council's role in abatement of nuisances was a regulatory function under s 125 of the Local Government Act 1993 and hence not a service.
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Consideration
For the purposes of this application I accept that Mr and Mrs Storey each have disabilities, as there is medical evidence supporting this and it is not disputed by the Council.
I am unable to consider the claims regarding conduct past 18 February 2020 and alleged victimisation, as the complaint was not amended to include these issues while it was before the Anti-Discrimination Board. Once a complaint is the subject of proceedings before the Tribunal, amendment may occur pursuant to s 103 of the ADA. A declined complaint is not the subject of proceedings until leave is granted, however (Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34). Accordingly, I have no power under s.103 to amend the complaint at this stage and can only consider the complaint as referred by the President.
The area of unlawful discrimination in which the complaint is based is the provision of goods and services. Should leave be granted, to establish such his complaint the applicants would need to establish that the respondent provides services and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either:
1. refusing to provide the services, or
2. in the terms on which the services are provided.
The applicants claim that the Council discriminated against them, firstly by refusing to provide a service and secondly in the terms on which they provided a service. In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:
"In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides."
The services in this case are the investigation, assessment and abatement of the nuisance and the regulation of keeping birds and animals under the Local Government Act and Regulations. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that "services" to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person's bail application did not involve the provision of "services".
Chapter 6 of the Local Government Act deals with the "service functions" of councils. Section provides:
"A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law."
The services described by the applicants are not listed in Chapter 6. Chapter 7 deals with the regulatory functions of councils. Section 125 is within Chapter 7.
In IW, it was claimed that granting or refusing planning approval by the Council was a service. The High Court disagreed. It recognised, nevertheless, that there may be ancillary services associated with a statutory function such as disseminating information to ratepayers about its function. The ancillary services in this case would be answering queries and providing information about the Council's functions concerning noise and nuisances.
Not all the identified services were refused in this case. The Council did investigate and conduct a noise assessment although the applicants complain that the assessment was delayed. The applicants claim that the Council refused to make the order that they believed should be made. The making of an order cannot be construed as a service in my view.
The second part of the complaint is that the applicants were treated less favourably in the terms on which services were provided to them. This complaint must be limited however to the terms on which the Council answered and dealt with requests from the applicants about the noise and nuisance. The applicants claim that they were treated less favourably on the ground of their disability than a person without that disability would have been in the same or similar circumstances. The basis for making this claim is the comments allegedly made by the Council officer that if they were not at home with a disability it would not be a problem.
Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance (Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.
The available evidence, taken at its highest, does not indicate that the services were subject to any terms imposed by the Council. The alleged discriminatory comment made by the Council officer is part of the manner in which the service was provided, not part of the terms of the service. Other alleged differential treatment such as failing to follow regulatory guidelines, providing notice of inspections and delaying installation of noise meters relate to the manner in which the service was provided.
Accordingly, because of the limited operation of s 49M as discussed above, I am not satisfied that the applicants have any prospect of establishing their complaint under s 49B and s 49M. It follows that the complaint lacks substance.
It would not be fair and just to allow a complaint which lacks substance to proceed and accordingly leave must be refused.
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Orders
1. Leave to proceed with the complaint is refused under s 96(1) of the Anti-Discrimination Act 1977.
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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
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Decision last updated: 19 March 2021