Civil and Administrative Tribunal
New South Wales

Case Name:

Cairns v ANZ Banking Group Ltd

Medium Neutral Citation:

[2016] NSWCATAD 165

Hearing Date(s):

14 June 2016

Date of Orders:

25 July 2016

Decision Date:

25 July 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Scahill, Senior Member

Decision:

(1) Leave is granted for complaint of race discrimination
in the provision of services to proceed against both
Respondents
(2) Leave is granted for the complaint of aiding and
abetting to proceed against the First Respondent.

Catchwords:

ANTI-DISCRIMINATON – whether leave should be
granted for declined complaints of race discrimination
and aiding and abetting to proceed – whether fair and
just in all the circumstances

Legislation Cited:

Anti-Discrimination Act 1977 (NSW) s, 88B, 92, 96,
Civil and Administrative Tribunal Act 2013 (NSW) s 45

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142
Burns v Sunol [2015] NSWCATAD 178
Ekermawi v Administrative Decisions Tribunal of New
South Wales & Ors [2009] NSWSC 143
Jones & Anor v Ekermawi [2009] NSWCA 388
Razaghi v Director-General, NSW Department of
Health & Anor [2002] NSWADT 4
Stanborough v Woolworths Ltd [2005] NSWADT 203

Category:

Procedural and other rulings

 Parties:

Charles Cairns and Judith Cairns (Applicants)
ANZ Banking Group Limited (First Respondent)
OnePath Life Limited ANZ (Second Respondent)

Representation:

Counsel:
D Chin (First and Second Respondents)
Solicitors:
D Faulkner (Agent for the Applicants)

File Number(s):

1610291

REASONS FOR DECISION
Introduction
1

On 16 September 2015 Mr Charles Cairns and Mrs Judith Cairns lodged a
complaint of race discrimination in the provision of services – insurance –
against ANZ Banking Group Limited (ANZ Group) and OnePath Life Limited
ANZ (OnePath) with the President of the Anti-Discrimination Board. In January
2016 the Applicants further alleged that ANZ Group had aided and abetted
OnePath in the complaint of race discrimination. On 16 April 2016 the acting
President of the Anti-Discrimination Board declined the complaint because it
was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a).
When that happens, the complainant must apply to the Tribunal for permission
or ‘leave’ before the complaint can go ahead: Anti-Discrimination Act, s 96.

2

I have granted leave in this case. If these complaints were to proceed to a
hearing, it is possible that Mr and Mrs Cairns would be able to prove that the
alleged conduct constitutes a breach of the Anti-Discrimination Act.

Principles for granting leave – whether “fair and just”
3

The Supreme Court set out the principles to be applied when determining
whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New
South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:
(1) emphasised that a cautious approach should be adopted because a refusal
of leave will “finally determine the rights of the parties under this legislative
scheme, which is dealing with important human rights”;
(2) found that the Tribunal’s discretion is unfettered and is not confined to the
grounds on which the President of the Anti-Discrimination Board may decline a
complaint;

 (3) concluded that leave must be granted or refused “depending on what (is)
fair and just in the particular circumstances, with an onus falling on the plaintiff
to establish that the leave should be granted; and
(4) noted that where it is apparent that the complaint lacks substance leave
may be refused, if that is what justice dictates.

4

The issue to be determined is whether it is fair and just in all the circumstances
for the complaint to proceed.

Race Discrimination Complaint
5

Mr and Mrs Cairns complaint is set out as follows.

6

Mr and Mrs Cairns are New Zealand citizens residing permanently in Australia
since 2004. They entered Australia under the Trans-Tasman Travel
Arrangement – the TTTA. They were granted a Special Category Visa – SCV.
The SCV is unique to New Zealand citizens and allows them to remain in
Australia indefinitely with no work limitation or other conditions attached.

7

In September 2005 Mr Cairns was sent an ANZ Bank (first Respondent) direct
marketing letter offering him a life insurance product called Easy Cover Life
underwritten by ING Life, now OnePath Life Limited - the policy.

8

The letter stated, amongst other matters:

9

“As an ANZ customer who is a Permanent Australian Resident and aged
between 21 and 59, your acceptance is guaranteed.”

10

The product disclosure statement (PDS) dated 1 August 2005 set out that the
offer was to permanent residents of Australia aged 21 to 59. A definition of
‘Permanent Australian Resident’ was not provided. In 2005 Mr Cairns took up
the policy for both himself and his wife.

11

In March 2015 the Cairns’ financial adviser raised concern regarding the
wording of their policy. They obtained a copy of the PDS for their policy dated
November 2006. In this latter version of November 2006, the wording had
changed to define Permanent Resident of Australia as:
‘Permanent resident of Australia: an Australian citizen or a person in
possession of a Permanent Resident’s visa’.

12

The Cairns’ financial adviser wrote to OnePath on 28 March 2015 to clarify the
matter. On 9 April 2015 the Cairns received a response from OnePath stating

 that the Cairns “would not be covered from commencement of the policy as
they are not citizens or permanent residents of Australia.” They were advised
that the only option available to them was to cancel the policy from inception
and all premiums would be refunded.
13

The Cairns complained of race discrimination in the provision of services
against both ANZ and OnePath to the ADB in September 2015.

Responses of Respondents to President of ADB
14

One Path’s response to the complaint of 14 December 2015 to the President of
the ADB stated that it denied discriminating against the Cairns either directly or
indirectly. The letter offering the policy did not say that Mr Cairns had met all
the eligibility criteria. Only Mr and Mrs Cairns would have knowledge of their
permanent residency status or otherwise. The term “permanent resident of
Australia” was not defined in the August 2005 version but was defined in the
November 2006 PDS. The policy document dated June 2005 included the
following definition of “permanent resident of Australia”:
“permanent resident of Australia means an Australian citizen or person in
possession of a permanent residents visa”.

15

OnePath stated that it was clear that the SCVs held by the Cairns were
temporary visas not permanent visas. Further the Cairns had the option of
becoming permanent residents of Australia and had they done so they would
have fulfilled the eligibility criteria for the policy regardless of their New Zealand
citizenship. The Cairns had declared in their application that they had received
and understood their application. The policy was issued based on the
declarations that the Cairns had made in that application.

16

It was the Cairns who had realised that they were not eligible for the policy as
they did not hold permanent visas. Even though OnePath denied discriminating
on the grounds of race, OnePath refunded all premiums paid for the Easy
Cover Life policy which is now closed to new business. OnePath offered to
replace the Easy Cover life policy with a Secure Life Plan policy which has
additional benefits. As Mr Cairns finds it difficult to obtain new cover due to a
stroke that he had suffered since taking out the Easy Cover life policy in 2005,
OnePath also stated that it was prepared to waive the five-year pre-existing

 condition exclusion on the Secure Life Plan Policy for the Cairns, to offset this
issue. Mr and Mrs Cairns did not accept this offer.
17

Since 2009 cover has been made available to New Zealand citizens by
OnePath regardless of whether or not they are permanent residents of
Australia, as long as they received the PDS in Australia. OnePath also says it
is in the process of changing its business rules to retrospectively apply the
current eligibility criteria to the older policies.

Complaint of Aiding and Abetting against First Respondent ANZ
18

Mr and Mrs Cairns had also made a complaint of aiding and abetting against
ANZ Banking Group Ltd on 4 January 2016.

19

The first Respondent ANZ denied that they had aided and abetted race
discrimination in that there had been no race discrimination by OnePath. While
ANZ Bank may have sent a direct marketing letter to Mr Cairns, the sending of
the letter had nothing to do with setting the exclusions in the policy, which if
there was any unlawful discrimination, was the only unlawful act.

Acting President’s Reasons for Declining the Complaints
20

In her letter of 16 April 2016, the Acting President of the Anti-Discrimination
Board summarised the reasons she had determined to decline the complaint in
the following way:

21

The parties had agreed that:
 In 2005 the Cairns were offered and took out an Easy Cover life insurance
policy;
 In 2015 the Applicants became aware that they might not have been covered
by the policy due to one of the eligibility conditions and what was understood at
the time to be the definition of permanent Australian resident;
 In response to the Applicants’ enquiries regarding this issue, OnePath Life
Limited subsequently confirmed that the Cairns would not have been covered
from commencement of the policy as they were not citizens or permanent
Australian residents.
 OnePath advised the Applicants that their only option was to cancel the policy
from inception. All premiums paid by the Cairns were refunded.

 Acting President’s reasoning
22

At the time the Cairns applied for the policy they were not refused the service
(insurance). Whether or not the Applicants would have been refused insurance
had they identified at the time as New Zealand nationals residing in Australia
under a special category Visa SCV, it cannot be considered as it did not occur.

23

Irrespective of any matters arising from the duty of disclosure in a signed
declaration, the terms of service were not afforded on a different basis as the
Complainants were not identified as failing to meet the particular requirement.

24

The Applicants have not identified suffering a detriment between 2005 and
2015. Whilst there was “a potential” for detrimental consequences in the event
that they had to make a claim on the policy, this did not occur.

25

The Applicants say they were left in the position of being uninsurable as Mr
Cairns had a stroke during the period in which he held the subject policy.
However it would appear the Respondent then attempted to take appropriate
steps to remedy or redress this part of the conduct (discriminatory or
otherwise) complained of, when it offered a comparable policy and waiving the
five-year pre-existing condition waiting period. This was in addition to having
refunded all premiums paid by the Cairns at the time the policy was cancelled.

26

Another factor of note is that the Applicants have resided in Western Australia
since 2008. If it is the complainant’s argument that the complaint is broader
than the selling of the policy in 2005, it is arguable that any events post-2008
may not be covered by the NSW ADA.

27

Given that Mr and Mrs Cairns have failed to demonstrate that they were
unlawfully discriminated against by either Respondent, it follows the complaint
of aiding and abetting by ANZ Banking Group Limited fails.

Relevant legislation
28

If leave were granted for the complaint of race discrimination to proceed, the
burden of proof would be on the applicant to prove his case on the balance of
probabilities. The applicant would have to establish that the Respondents
breached s 19 of the Act. That section provides:
19 Provision of goods and services

 It is unlawful for a person who provides (whether or not for payment) goods or
services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or
services.

29

Race discrimination is defined in s 7 of the Act:
7 What constitutes discrimination on the ground of race
(1) A person (“the perpetrator”) discriminates against another person ("the
aggrieved person”) on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person’s race or the race 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 of a different race or
who has such a relative or associate of a different race, or
(b) on the ground of the aggrieved person’s race or the race of a relative or
associate of the aggrieved person, segregates the aggrieved person from
persons of a different race or from persons who have such a relative or
associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition
with which a substantially higher proportion of persons not of that race, or who
have a relative or associate not of that race, 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.

Direct Race discrimination section 7(1) (a) and (b)
30

In order to substantiate a complaint of direct race discrimination, the applicants
would need to prove:

31

(1)

that the applicants were treated less favourably than a hypothetical or
actual persons who were of a different race to the applicants (the
comparator);

(2)

that the less favourable treatment was on the ground of the applicants’
race (causation); and

(3)

that the Respondents’ conduct falls into one or more paragraphs in s 19.

That is, the Applicants would have to prove that they were refused a service or
they were treated less favourably in the terms on which they were provided
with the service.

32

When considering causation, s 4A of the Act is to be borne in mind. That
section provides:
4A Act done because of unlawful discrimination and for other reasons

 If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act
against a person (whether or not it is the dominant or a substantial reason for
doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.

Complaint of Aiding and Abetting against ANZ Banking Group Limited
33

Section 52 of the Act makes it unlawful to aid or abet another in the doing of an
act that is unlawful.
52 Aiding and abetting etc.
It is unlawful for a person to cause, instruct, induce, aid or permit another
person to do an act that is unlawful by reason of a provision of this Act.

34

The Tribunal accepts that a cautious approach should be adopted to a refusal
of leave, bearing “in mind that refusal of such leave will finally determine the
rights of the parties under this legislative scheme, which is dealing with
important human rights”: Ekermawi v Administrative Decisions Tribunal of New
South Wales [2009] NSWSC 143 at [32].

The Applicants’ submissions
35

The Applicants made both written and oral submissions. The Tribunal
summarises them as follows.

36

The Acting President of the ADB had been incorrect in stating that the
applicants had not been refused a service. The applicants had been issued
with a policy which did not cover them and the respondent OnePath had
confirmed that the applicants were never covered by the policy. The applicant
asserted the fact that they had never sought to claim and had not been refused
was not relevant.

37

Effectively the applicants had never received the service for which they had
paid for the period 2005 to 2015. This service was to be covered by the policy
of insurance.

38

The Acting President had noted that some parts of the complaint had occurred
after the Applicants had moved to Western Australia in 2008. The applicants
should be permitted to argue whether or not they remained covered by the
New South Wales ADA after this time. This was not a basis on which the

 Acting President should have declined the complaint as it was an arguable
issue.
39

ANZ’s argument that it did not provide any services in relation to the insurance
policy was flawed. The definition of services in section 4 of the Act specifically
refers to services relating to insurance. ANZ had provided a direct marketing
service to link customers with the provision of life insurance. In this respect
they were providing a service relating to life insurance.

40

The policy document had not been sent to the Cairns after until after the
decision to purchase the life insurance policy. They were not advised of
conditions and exclusions until after their purchase. Further, as customers of
ANZ they had provided ANZ with all their details when opening bank accounts
The ANZ would have been aware of the Cairns’ visa status.

41

The Respondents’ motive in excluding New Zealand applicants from coverage
was irrelevant. The fact that the Cairns had been offered a replacement policy
did not change the fact that they were not covered by the original policy that
they had wanted to be covered by. That still remained discriminatory.

42

The applicants argued that however one looked at the issue, the problem at all
times came back to the Cairns’ New Zealand citizenship - whether OnePath
was motivated by a discriminatory attitude towards New Zealanders or not.

The Respondents’ submissions
43

The Respondents made written and oral submissions at the hearing. The
Tribunal summarises these as follows.

44

The Respondents contended that it would not be fair and just for the
Complainants to be given leave to proceed.

45

OnePath had provided the Complainants with the policy on the basis of their
representation that they were Permanent Australian Residents. Once the error
was discovered on the Complainants’ application, the policy was cancelled. An
apology was issued and the premia were refunded. The Complainants were
offered a new policy with more favourable terms which also waived the fiveyear waiting period for a pre-existing condition. The Complainants had
unreasonably rejected this offer. On this basis leave should be refused.

 46

The Respondents denied that the Complainants had been refused insurance
services. The Complainants had rejected a settlement offer because of their
concern for other New Zealand citizens. They sought various amendments to
the 2005 policy for other New Zealanders. This remedy was futile as any such
problems had already been resolved.

Lack of Merit
47

The Respondents contended that the complaint lacks merit. A lack of merit is a
relevant consideration as to whether or not it is fair and just for leave to be
granted for the complaint to proceed.

48

The 2005 policy was not concerned with the nationality of the holder – it was
concerned with visa status. There had been no differential treatment under
section 7 of the Act (the prohibition against race discrimination). The
Complainants had not been refused coverage of a policy and they were never
refused any benefits. The complaint could not succeed as a characteristics
complaint, as the lack of a permanent residency visa was not a characteristic of
New Zealand citizenship.

49

The complaint could not be formulated as an indirect race discrimination
complaint. The Complainants could have complied with any requirement to
have a permanent residency visa - they had elected not to. The requirement or
condition to have a permanent residency visa was reasonable because
OnePath did not issue financial products outside Australia and life insurance
policies are likely to last for long periods of time.

50

In relation to the complaint of aiding and abetting against ANZ, the only action
ANZ had taken was to issue a letter. They were not a party to a contract
between the Complainants and the insurer. Further, aiding and abetting
requires knowledge and intention on the part of the alleged aider and abetter
and there was no such knowledge and intention demonstrated in the ANZ. For
these reasons, leave should be declined for the complaint to proceed.

Consideration
51

In order to substantiate a complaint of direct race discrimination under sections
7(1) (a) and (b) an 19, the Applicants would have to prove that;

 (1)

they are members of a particular race;

(2)

the Respondents treated them less favourably by refusing to provide
them with services, or less favourably in the terms on which they were
provided with those services.

(3)

in doing so, the Respondents treated them less favourably than they
treated or would have treated persons of a different race; (differential
treatment)

(4)

at least one of the reasons for that treatment was the Applicants’ race
(causation).

Race
52

"Race" is defined in s 4 of the Anti-Discrimination Act to include: “colour,
nationality, descent and ethnic, ethno-religious or national origin.” It is not in
dispute that Mr and Mrs Cairns’ national origin is New Zealander.

53

The two elements which must be proved to substantiate a complaint of direct
discrimination are “differential treatment” and “causation”: Commissioner of
Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to
the Complainants must be compared to the treatment that was or would have
been afforded to a real or hypothetical person of a different race in the same
circumstances or in circumstances which are not materially different.

54

In addition, race must be at least one of the reasons for the treatment: AntiDiscrimination Act, s 4A. The question a Tribunal should ask when addressing
the causation element of direct discrimination is whether the person’s race is at
least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment: Purvis v
State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ
at 102, McHugh and Kirby JJ at 144. Depending on the circumstances, the
motive and purpose of the alleged discriminator, as well as the effect on the
aggrieved person, may all be relevant. As with the vast majority of complaints
of discrimination, a causal link between the Applicants’ race and the alleged
treatment would have to be established by inference from primary facts:
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The
following principles identified in Dutt v Central Coast Area Health Service
[2002] NSWADT 133 at [70] are relevant:
“...
(b) an inference must be reasonably drawn on the basis of the primary facts;

 (c) an inference can be drawn from a combination of facts, none of which
viewed alone would support that inference;
(d) a fact relied on as the basis of an inference need not be proved to the
requisite standard of proof; it is not enough that the inference is a mere
possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent
explanations are available on the evidence.”

Merits of the complaint of race discrimination
Differential treatment
55

There is no reference in the President’s Report to a person who could serve as
an actual comparator. The Tribunal would have to imagine a hypothetical
person who was not of New Zealand national origin, and identify the
circumstances to be taken into account when comparing how the Respondents
treated the Applicants and how it would have treated such a hypothetical
person.

56

The Tribunal considers that it is arguable that the Cairns’ situation as a holder
of an SCV was that they effectively had the same right to remain in Australia
(as permanent residents) as a holder of a formal Permanent Resident visa had.
Their circumstances were not materially different from those of the holder of a
formal Permanent Residents visa. However the Cairns’ SCV, unique to a New
Zealander, was treated differently to a Permanent Resident visa. The Tribunal
considers that this presents an arguable case that the causation for the less
favourable treatment was the Cairns’ New Zealand citizenship.

Was a service refused?
57

In declining the complaint the Acting President of the Anti-Discrimination Board
stated that the applicants had not been refused a service as they had not
sought to claim against the policy. The Tribunal respectfully disagrees with the
Acting President’s view. The second respondent had conceded that the
Complainants were never covered by the policy from the beginning – even
though their application for the policy and their premium payments were
accepted. An insurance service includes the capacity to claim against a policy
as necessary. The Complainants never had this capacity. The Tribunal
considers that there is an arguable case that the Applicants were refused

 service in that they were told they would not have been able to claim against
their policy.
Detriment?
58

The Tribunal would have to consider whether the consequential conduct
amounts to a ‘detriment.’

59

The Tribunal is satisfied the Applicants entered into a policy understanding that
should an event occur, that they would have the capacity to claim in relation to
the event. The Tribunal’s understanding is that despite being issued with a
policy and paying the requisite premia, the applicants would never have been
able to claim against the insurance policy. This again is arguably a detriment to
the applicants.

Causation?
60

The Applicants stressed that the letter from ANZ said:
“As an ANZ customer who is a permanent Australian resident and aged
between 21 and 59, your acceptance is guaranteed.”

61

It is arguable in the Tribunal’s view that these words could have meant “as a
person who is entitled to reside in Australia permanently” and not “as a holder
of a formal Permanent Resident Visa.”

62

The Tribunal accepts that it is not necessary to show that the Respondents
intended to discriminate against New Zealand applicants from coverage.

63

The Applicants argued that however one looked at the issue, the problem at all
times came back to the Cairns’ New Zealand citizenship - whether OnePath
was motivated by a discriminatory attitude towards New Zealanders or not. The
Cairns’ SCV, unique to a New Zealander, was treated differently to a
Permanent Resident visa. The Tribunal considers that this presents an
arguable case that the causation for the less favourable treatment was the
Cairns’ New Zealand citizenship.

Argument for an indirect race discrimination complaint
64

To establish a complaint of indirect race discrimination the Applicants would
need to establish that the Respondents:
 required the Applicants to comply with a requirement or condition;

  with which a substantially higher proportion of persons not of the New Zealand
race, 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.
65

The Tribunal considers that it is arguable that OnePath Life Limited required
the Applicants to comply with a requirement that they have a formal permanent
resident status visa while living in Australia in order to be able to claim upon
their insurance policy.

66

No proportions of complying population were provided to the Tribunal. However
it would be a matter for evidence to show that is substantially higher proportion
of non-New Zealanders who are residing permanently in Australia have a
formal permanent resident status.

67

It is arguable that the requirement for a formal permanent resident designation
as opposed to an SCV would be considered unreasonable in the
circumstances. Both statuses allow the person concerned to reside
permanently in Australia. It is clear that the Applicants do not comply with the
requirement that they have a formal permanent resident status. The
Respondents argued that the Applicants could have applied for this, in addition
to their SCV. The Tribunal notes however that the Second Respondent
contended that the Applicants were never covered by the policy from the
beginning. It would appear that the lack of a permanent resident status visa
could not be repaired once the policy was taken out in 2005.

Merits of Complaint of Aiding and Abetting against ANZ Banking Group
Limited
68

The Tribunal is satisfied that there is an arguable case that ANZ aided
OnePath in their interactions with the Cairns. These interactions were arguably
discriminatory. The letter from ANZ to the Cairns undertakes that the Cairns’
Australian residency meets criteria for the policy. Without the ANZ’s
identification of the Cairns’ residency status, in circumstances where the ANZ
would arguably have been aware of the Cairns’ New Zealand citizenship, the
balance of the “res gestae” would not have proceeded. The ANZ stated in their
letter that the Cairns’ acceptance was guaranteed.

 69

The ANZ was closely associated with the offer and acceptance of the policy.
Applicant’s rejection of settlement offer

70

The Tribunal has considered the Acting President’s declination of the complaint
because the Applicants had not accepted an offer of settlement.

71

The remedies upon a finding of discrimination are set out in section 108 of the
Act:

Section 108 (2)
If the Tribunal finds the complaint substantiated in whole or in part, it may do
any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2),
order the respondent to pay the complainant damages not exceeding
$100,000 by way of compensation for any loss or damage suffered by reason
of the respondent’s conduct,
(c) except in respect of a representative complaint or a matter referred to the
Tribunal under section 95 (2), order the respondent to perform any reasonable
act or course of conduct to redress any loss or damage suffered by the
complainant,
(d) order the respondent to publish an apology or a retraction (or both) in
respect of the matter the subject of the complaint and, as part of the order,
give directions concerning the time, form, extent and manner of publication of
the apology or retraction (or both),
(e) in respect of a vilification complaint, order the respondent to develop and
implement a program or policy aimed at eliminating unlawful discrimination,
(f) make an order declaring void in whole or in part and either ab initio or from
such time as is specified in the order any contract or agreement made in
contravention of 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.
(4) The power of the Tribunal to award damages to a complainant is taken, in
the case of a complaint lodged by a representative body, to be a power to
award damages to the person or persons on behalf of whom the complaint is
made and not to include a power to award damages to the representative
body.
(5) In making an order for damages concerning a complaint made on behalf of
a person or persons, the Tribunal may make such order as it thinks fit as to the
application of those damages for the benefit of the person or persons.
(6) ………..

 72

It is clear that there are a range of potential outcomes for a successful
complaint foreseen under the Act.

73

The Tribunal respectfully disagrees with the Acting President of the ADB that
the fact of a settlement offer has been made to the Applicants renders it unfair
or unjust for leave for the complaint to proceed. The Applicants may, if their
complaint is successful at hearing, seek remedies other than those offered in
settlement. Further the fact that a complaint may or could be settled does not
detract from any inherent merit the complaint may have.

Is it fair and just for the complaints to proceed?
74

The issue to be determined is whether it is fair and just in all the circumstances
for the complaints to proceed. See Ekermawi v Administrative Decisions
Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]

75

As set out, the Tribunal needs to approach the decision of whether or not to
grant leave cautiously as it is dealing with important human rights. The Tribunal
considers that there is at least an arguable case of race discrimination in the
area of services on the grounds of the Cairns’ nationality.

76

Similarly the Tribunal considers there is an arguable case that the First
respondent has aided and abetted that discrimination by assisting in the offer
of insurance services.

77

It is by no means certain that the Applicants will succeed in substantiating their
complaints. However it cannot be said that the complaints lack substance. In
the Tribunal’s view, it is fair and just in all the circumstances for the complaints
to proceed.

Orders
78

Leave is granted for the Applicants’ complaints to proceed.

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.