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Annual Report 2006-2007 Northern Territory Anti-Discrimination Commission



Annual Report 2006-2007 Northern Territory Anti-Discrimination Commission

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Tabled paper 1144


Tabled papers for 10th Assembly 2005 - 2008; Tabled Papers for 10th Assembly 2005 - 2008; Tabled papers; ParliamentNT; Tabled Papers






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Northern Territory Anti-Discrimination Commission 2006/2007 Annual Report 20 Appeals Pursuant to section 106 of the Act a complainant or respondent may appeal a decision of the Commissioner or his Delegate to the Local Court. This includes decisions to reject complaints, decisions to dismiss complaints at the prima facie decision-making stage, section 102 decisions to discontinue, or Commissioners Hearing decisions. A number of recent decisions of the Magistrates and Supreme Court make it apparent that appeals to the Court from decisions of the Anti-Discrimination Commissioner or a Delegate will generally be decided by way of a re-hearing on the written material that was before the Commission and not as a de novo (new) hearing. Appeals finalised during 2006/2007 Kennedy and Ors v. Anti-Discrimination Commission, Top End Womens Legal Service and Office of Ethnic Affairs [2006] NTCA 9 Appeal dismissed by the Court of Appeal This complaint of sex discrimination, relating to a women-only legal advice seminar, was dismissed by the Commissioner on the basis that it did not disclose any prohibited conduct because an exemption from the Act applied to non-profit groups carrying out a community service purpose. The Commissioner also found that such programs were also exempted from the Act because they were special measures, (a form of positive discrimination) designed to promote equality of opportunity for disadvantaged women. An appeal by the Complainant, Mr Kennedy, to the Local Court was dismissed by the Magistrate, as was the subsequent appeal to the Supreme Court. The further appeal to the Court of Appeal was heard in May 2006 and the decision handed down in October 2006. In the Court of Appeal Mr Kennedy successfully argued that, due to the specific wording in the Act, the exemption applying to persons performing services on behalf of a non-profit association established for a community service purpose did not apply to the association itself. This meant that, despite being a non-profit association, TEWLS could be found liable for discriminatory conduct. [Note: The Anti-Discrimination Act has since been amended to clear up the inconsistency which exempted persons carrying out the work of non-profit associations, but not the associations themselves.] However, despite the success of this argument, Mr Kennedy was unsuccessful in his overall appeal. In dismissing the appeal the Full Court unanimously agreed that the Commissioner was correct in finding that the special measures exemption applied, because the workshop delivered by TEWLS was a program designed to promote equality of opportunity for a disadvantaged group, namely women. The Court of Appeal ruling makes it clear that the Commissioner was correct in finding women to be a special measures group, and also includes useful discussion regarding the correct test to apply. As such it will be useful to the AntiDiscrimination Commission when decisions regarding the general application of the special measures exemption need to be made.