Shew v Domestic Violence Resource Centre Inc [1996] HREOCA 1 (5 February 1996)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No: H95/109

Between :

Keith Shew

Complainant

And

Domestic Violence Resource Centre Inc.

Respondent

REASONS FOR DECISION

OF

THE HON WILLIAM CARTER QC

Hearing Location: Administrative Appeals Tribunal, Brisbane, Queensland

Hearing Date: 5 February 1996

Date of Decision: 5 February 1996

Appearances: Mr Keith Shew in person

Ms Elizabeth Taylor, Chairperson, and Ms Meeta Iyer, Director, for the Domestic Violence Resource Centre

1. Introduction

Mr Keith Shew lodged a complaint on 18 July 1995 with the Queensland office of the Human Rights & Equal Opportunity Commission alleging that he had been discriminated against because of his sex.

Mr Shew has alleged that on Tuesday, 18 July 1995, because he was allegedly the victim of domestic violence, he approached personnel associated with the Domestic Violence Assistance Program which is located in the Magistrates Court in Brisbane. His complaint is that he was denied assistance by those persons on the assumption that the services provided were services which were restricted to women.

As a consequence of this, he made a complaint alleging that he had been unlawfully discriminated against, and consequently sought to have the Human Rights and Equal Opportunity Commission investigate his complaint pursuant to s.22 of the Sex Discrimination Act 1984 (Cth), ("the SDA"). The Sex Discrimination Commissioner has referred the matter for inquiry by the Commission under s.52(4)(a) of the SDA.

A preliminary issue has arisen as to the jurisdiction of the Commission to entertain the complaint and to inquire into it. Mr Shew and Mrs Price, who assisted him in the presentation of his complaint, in substance rely upon s.9(7) of the Act as the source of power for this Commission to lawfully undertake the inquiry into the complaint.

This decision relates solely to whether the Commission has the jurisdiction to hear the complaint of Mr Shew.

2. Relevant Provisions of the Act

The relevant provisions of the Act are set out as follows:

9. (1) In this section:

"Australia" includes the external Territories;

"prescribed provisions of Division 3 of Part II" means the provisions of

Division 3 of Part II other than sections 28D and 28L;

"prescribed provisions of Part II" means the provisions of Divisions 1 and 2 of Part II other than sections 19, 26 and 27.

(2) Subject to this section, this Act applies throughout Australia.

(3) This Act has effect in relation to acts done within a Territory.

(4) The prescribed provisions of Part II, and the provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.

(7) The prescribed provisions of Part II have effect in relation to acts done, by or on behalf of:

(a) the Commonwealth or the Administration of a Territory; or

(b) a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;

in the exercise of a power conferred by a law of the Commonwealth or a law of a

Territory.

(10) If the Convention is in force in relation to Australia, the prescribed

provisions of Part II, and the prescribed provisions of Division 3 of Part II,

have effect in relation to discrimination against women, to the extent that the

provisions give effect to the Convention.

(11) The prescribed provisions of Part II have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of

the person's duties or purported duties as an officer or employee of such a corporation.

(13) Without prejudice to the effect of subsection (11), the prescribed provisions of Part II have effect in relation to discrimination by a trading or financial corporation formed within the limits of the Commonwealth, or by a person in the course of the person's duties or purported duties as an officer or employee of such a corporation, to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the

financial activities of the financial corporation, as the case may be.

22. (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status or

pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State.

52. (1) Where:

(a) a complaint relating to an alleged unlawful act is made to the Commission under section 50; or

(b) it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II;

the Commission shall notify the Commissioner accordingly and the Commissioner shall, subject to subsection (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.

(2) The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:

(a) the Commissioner is satisfied that the act is not unlawful by reason of a provision of Part II;

(b) the Commissioner is of the opinion that the person aggrieved by the act does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;

(c) in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or

(d) in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.

(3) Where the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner shall give notice in writing to the complainant or each of the complainants of that decision, of the reasons for that decision and of the rights of the complainant or each of the complainants under subsection (4).

(4) Where the Commissioner has given a complainant a notice under subsection (3) relating to a decision, the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner:

(a) if paragraph (2) (a) applies - require the Commissioner to refer the complaint to the Commission; or

(b) in any other case - require the Commissioner to refer the decision to the President.

(5) On receipt of a notice under paragraph (4) (a), the Commissioner shall refer the complaint to the Commission together with a report relating to any inquiries made by the Commissioner into the complaint.

3. Facts

Prior to the hearing on 5 February 1996, both Mr Shew and the Domestic Violence Resource Centre have been in frequent and regular contact with Ms Horvath, an officer in the LegalSection in the Office of the Human Rights and Equal Opportunity Commission in Sydney. As a result of that contact and as a result of a preliminary telephone conference which I had with the parties recently, documentation in the possession of the respondent was made available to the complainant.

It was then, and remains, apparent that the case for the complainant is that the Commission has the jurisdiction to hear and entertain this complaint because the respondent is a body which comes within the provisions of s.9(7) of the SDA, and that is because of matters referable to the funding of the respondent and the programs and services which it provides.

Because of a concern that the funding issue may be relevant, and the earlier decision of the Commission in K -v- Domestic Violence Crisis Service Inc,(Unreported, decision of Commissioner Michael Dodson of 14 December 1995), which suggests that it may, the Commission arranged to subpoena a Miss Casey from the Domestic Violence Policy Unit from the Department of Family Services and Aboriginal & Islander Affairs for the purpose of being properly and authentically informed about the situation. She is a quite independent person and I issued a summons requiring her attendance. It was obviously desirable, if the funding issue was a relevant issue, for the Commission to be properly informed in relation to the facts of the matter.

It seems that prior to 1 October 1991 the respondent was the beneficiary of joint Commonwealth and State funding arrangements. The respondent itself is an incorporated body. It is incorporated under the Associations Incorporation Act and became incorporated in about November 1989. The referral report contains the rules and constitution of the respondent. It seems to have been established as a voluntary association which obtained incorporation. It was essentially, in its original form, a community-based organisation which ultimately became the recipient of both Commonwealth and State funding.

Miss Casey's evidence is quite explicit that since 1 October 1991, altered arrangements between the Commonwealth and the State led to the State Government assuming funding responsibilities in relation to the respondent pursuant to the Family Services Act (Qld) 1987. At that time, and subsequently the respondent was in substance an information and resource centre only, assisting in raising community awareness in relation to domestic violence issues.

In about February 1994, the State government extended its funding to the Domestic Violence Resource Centre to ensure the provision of counselling services. The type of counselling services which are referred to in the original compliant as the domestic violence assistance program and which is made available at the Magistrates Court in Brisbane, is presumably such a service and the counsellors who are employed by the respondent for the purpose of delivering that service are, according to the evidence, funded by the State Government as part of the Domestic Violence Initiatives Program ("DVIP").

There is not in existence a service agreement between the State Government and the respondent, but there are funding guidelines which are contained in the referral report and it is in accordance with those guidelines that the funding is made available by the State Government and in accordance with which the respondent remains accountable to the State government in relation to the disbursement of those funds and the services which are provided.

I return then to the provisions of s.9(7) of the Act. Section 9(7) provides, and I quote:

"The prescribed provision of Part II have effect in relation to acts done by or on behalf of: (a) the Commonwealth or the administration of a territory or (b) a body or authority established for a public purpose by a law of the Commonwealth or a law of the territory in the exercise of a power conferred by a law of the Commonwealth or a law of a territory".

The argument for the complainant is that this Commission has jurisdiction in the circumstances of this case because the acts which were done by the respondent and which were allegedly discriminatory were acts done by or on behalf of the Commonwealth of Australia or alternatively a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory.

Clearly, the Domestic Violence Resource Centre Inc is not a body or authority established for a public purpose by a law of the Commonwealth. As I indicated earlier, it is a community-based body which is incorporated under State legislation and received funding from the State government.

It is submitted that because at some time in the past the Domestic Violence Resource Centre was the recipient of joint Commonwealth and State funding arrangements, it acts on behalf of the Commonwealth of Australia. I reject that submission. Clearly, at the relevant time - that is at the time of the acts complained of, namely July 1995 - I am satisfied that the respondent was a body, for all practical purposes, funded only from State Government revenue.

There is no identifiable reason for identifying the respondent at the time of the complainant as a body which acted on behalf of the Commonwealth of Australia. That being so, it is clear in my view that the respondent is not a body comprehended by s.9(7) of the SDA.

I am therefore of the view that this Commission has no jurisdiction to entertain the complaint or to inquire into the substance of it. Therefore, in accordance with s.79 of the SDA, I dismiss the complaint.

Reasons for decision delivered on 5 February 1996 at Brisbane.

Signed this 5th day of May 1996 in Brisbane

........................................

The Hon. W.J Carter

Hearing Commissioner