Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44 (28 October 1997)

Last Updated: 22 September 2003

ANTI-DISCRIMINATION TRIBUNAL

MELBOURNE

No. 124 of 1997

Nevil Abolish Child Support and Family Court

COMPLAINANT

and

Telstra Corporation Limited

RESPONDENT

REASONS FOR DECISION ON AN APPLICATION UNDER SECTION 109 OF THE EQUAL OPPORTUNITY ACT 1995

28 October 1997

Ms Cate McKenzie

President

Ms Joy Murphy

Member

Ms Elizabeth McCallum

Member

1. The Proceeding

On 24 December 1996 the Complainant lodged with the Equal Opportunity Commission ("The Commission") a complaint under the Equal Opportunity Act 1995 ("The 1995 Act"). By letter dated 19 June 1997, received by the Tribunal on 30 June 1997, the Commission referred this complaint to the Tribunal. The Chief Conciliator of the Commission had considered that the complaint could not be successfully conciliated under s117(1)(b) of the Act. In response to a requirement by the Complainant under s117, the complaint has been referred to this Tribunal.

A Preliminary Conference was listed for 1 August 1997. That conference did not take place because, on 31 July 1997, the Respondent applied to the Tribunal to have the complaint dismissed for lack of jurisdiction and to strike out the complaint under s109 of the Act.

The Tribunal commenced to hear both applications on 1 August 1997. It gave directions to give the parties an opportunity to make written submissions to it. Those written submissions were subsequently filed and served.

On 30 September 1997 the Tribunal gave the parties an opportunity to make oral submissions. At that hearing the Complainant appeared in person. The Tribunal gave leave to Ms O'Brien of counsel to appear for the Respondent. Application for that leave was opposed by the Complainant. The Tribunal granted leave on the basis that the application involved issues of some legal complexity on which the Tribunal would be assisted by argument from counsel, and that any perceived disadvantage that might be suffered by the Complainant because he was unrepresented could be redressed by appropriate questioning from the Tribunal.

At the end of that hearing, the Tribunal permitted the parties to make further written submissions to it on the characterisation of the services provided by the Respondent. Those written submissions were subsequently filed and served.

In brief, this complaint claims that the Respondent has discriminated against the Complainant on the grounds of his political belief or activity by refusing to list his name in the Respondent's white pages telephone directory. We first set out the provisions of the Act and the legal principles that apply in determining these applications. We then summarise the material before us. Finally, we consider the submissions made by the parties.

2. The Law

1. The Legislation

Set out below are the provisions of the Act relevant to this case.

4. Definitions

In this Act-

"attribute" means an attribute in Section 6;

"discrimination" has the meaning given in Part 2;

"political belief or activity" means-

a. holding or not holding a lawful political belief or view; b. engaging in, not engaging in or refusing to engage in a lawful political activity;

"services" includes-

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking, the provision of loans or finance, credit guarantees and insurance;

(c) entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business;

a. services provided by a public authority or local government authority, State owned enterprise or municipal council-

but does not include education or training in an educational institution;

6. Attributes

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3-

...

(g) political belief or activity;

...

7. Meaning of discrimination

(1) Discrimination means direct or indirect discrimination on the basis of an attribute.

(2) Discrimination on the basis of an attribute includes discrimination on the basis-

(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it at any time.

8. Direct discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favorably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant-

(a) whether or not that person is aware of the discrimination or considers the treatment less favorable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

9. Indirect discrimination

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice-

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(c) that is not reasonable.

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including-

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

10. Motive is irrelevant to discrimination

In determining whether or not a person discriminates, the person's motive is irrelevant.

42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person-

(a) by refusing to provide goods and services to the other person;

(b) in the term on which goods and services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods and services to him or her.

(2) Sub-section (1) applies whether or not the goods and services are provided for payment.

109. Respondent may apply to Tribunal to strike out complaint

1. A respondent may apply in writing to the Tribunal to have a complaint struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance.

2.2 Applications under Section 109

In De Vos v City of Kingston (ADT of Vic, 3 January 1997, at pp 9-11), the Tribunal set out the principles to be applied in determining applications under s109 of the Act -

"Section 109 of the Equal Opportunity Act 1995 and Section 44C of the Equal Opportunity Act 1984 permit a Respondent to apply to have a complaint struck out on certain grounds. A Respondent cannot apply to have a complaint struck out after the hearing of the complaint has commenced or when the complaint is in the process of being conciliated. The grounds on which the application may be made are that the complaint is frivolous, vexatious, misconceived or lacking in substance. The hearing of an application to strike out a complaint must commence within a time specified in the Act. Under s44C of the 1984 Act, the hearing must commence within 7 days of the making of the application. Under s109 of the 1995 Act, the hearing must commence within 14 days after the making of the application. An application to strike out a complaint made under either of these Acts must be heard expeditiously. On an application under either of these Acts to strike out a complaint, the Tribunal must give the parties an opportunity to make written and oral submissions, but otherwise its procedure is in its discretion. Some of the rules governing the final hearing of complaints do not apply to the hearing of an application to strike out a complaint (compare s44C(3) of the 1984 Act and s109(4) of the 1995 Act). For example, the provisions relating to the hearing of complaints and governing the joinder of parties and the entitlement to give oral evidence do not apply to strike out applications (1984 Act ss52-55; 1995 Act ss144, 145 and 147). Section 109 of the 1995 Act makes it clear that certain provisions of the Act apply equally to hearings of complaints and hearings of applications to strike out complaints. For example, on both kinds of proceedings, the Tribunal is required to act fairly (s141), is not bound by rules of evidence (s142), may make a technical amendment to a complaint (s146), may receive oral evidence (s148), and may retain documents (s149).

Section 44C of the 1984 Act has been discussed extensively by the Court of Appeal of the Victorian Supreme Court in State Electricity Commission of Victoria v Rabel (18 December 1996, Tadgell, Ormiston and Phillips JJA). The judgements in that case make it clear that Their Honours regarded the propositions they set out as applying equally to s109 of the 1995 Act and s44C of the 1984 Act. We summarise those propositions as follows-

1. Section 44C and s109 permit the making of an interlocutory application at a preliminary stage. The procedure to be adopted in determining such an application is in the Tribunal's discretion. In determining the procedure to be adopted, the Tribunal must bear in mind that the proceeding is not the full hearing of the complaint, and that the Act requires the proceeding to be determined expeditiously. At the Tribunal's discretion, the proceeding may be determined on the pleadings and submissions alone, or also by allowing the parties to put forward affidavit material, or to give oral evidence. The procedure that the Tribunal adopts is in its discretion and will depend on the circumstances of the particular case. 2. If on a strike out application a Complainant indicates to the Tribunal that the whole of the Complainant's case is contained in the material then put before the Tribunal by the Complainant, the Tribunal is entitled to determine the application by asking whether, on all the material before it, there is a question of real substance to go to a full hearing. 3. However, if a Complainant indicates that there is other evidence he or she can call to support his claim and the Tribunal on the application does not permit that evidence to be called, the Tribunal cannot determine the application on the basis that the Complainant's material contains the whole of his or her case ( Rabel's case , judgement of Phillips JA at pp17-20; with which Tadgell and Ormiston JJA agreed). 4. An application to strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal of those proceedings (see for example Rules of Supreme Court Order 23.01 and Williams, Civil Procedure in Victoria, Volume 1, pp 3415-29). Both are applications designed to prevent abuses of process. However, it is a serious matter for the Tribunal, on an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have his or her complaint heard in the ordinary course ( Rabel's case , judgement of Tadgell JA pages 1 and 2). 5. The Respondent bears the onus of showing that the Complainant's case ought not be allowed to proceed. 6. To succeed on the application, the Respondent must show the Complainant's case is obviously hopeless or could on no reasonable view justify relief. The Tribunal's power to strike out a complaint should be exercised consistently with the objectives of the Act. 7. In dealing with an application to strike out a complaint, a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be struck out as lacking in substance because it does not in itself contain the evidence that supports the claims it makes ( Rabel's case judgement of Tadgell JA at page 3). 8. The test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance under s109 and s44C is different from that applied in other Anti-Discrimination jurisdictions, where similar words are used but in a different legislative context. It is similar to that applied by the Supreme Court in civil proceedings in determining whether proceedings are frivolous, vexatious or an abuse of process under Order 23.01 of the Supreme Court Rules. A complaint can be struck out under s109 or s44C if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the Respondent can show a good defense sufficient to warrant the summary termination of the complaint ( Rabel's case , judgement of Ormiston JA pages



5-9). 9. The Tribunal must be cautious before striking out a complaint. The Tribunal must be satisfied that the claim is obviously untenable, undoubtedly hopeless, before it can be struck out ( Rabel's case , judgement of Ormiston JA pp9-10). 10. The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a Complainant wishes to advance ( Rabel's case , judgment of Tadgell JA at p3)."

The Respondent has applied to have this complaint struck out on all the grounds mentioned in s109(1). In addition to the Tribunal's comments in the De Vos case , I would make some further comments. First, if the material before the Tribunal merely shows that the parties are in dispute as to a fact in issue and that material does not assist the Tribunal to resolve the dispute, it is hard to say that the Respondent has satisfied the Tribunal that the complaint should be struck out for lack of substance. Rather, it should proceed to a full hearing where evidence as to the fact in issue can be called and tested by cross-examination.

Second, if a complaint can be said to be frivolous, vexatious, misconceived or lacking in substance in respect of any element necessary for the Complainant to prove to substantiate the complaint at a full hearing, the Respondent will have satisfied the Tribunal that the complaint should be struck out.

What must the Complainant prove?

This complaint claims discrimination in the provision of services on the ground of political belief or activity. We deal separately with the meaning of political belief or activity under heading 2.4. Political belief or activity is an attribute on the basis of which the Act prohibits discrimination in certain areas (s6). The area relevant to this case is the provision of services.

"Services" is defined in s4 of the Act. That definition is inclusive and not exhaustive. "Services" specifically includes services provided by business and services provided by public authorities. In IW v City of Perth ([1997] [1997] HCA 30; 146 ALR 696), the High Court considered a similar definition of "services" in the West Australian Equal Opportunity Act 1984. It considered that apart from the express statutory inclusions in the definition, "services" had its ordinary meaning when used in the Act. That ordinary meaning was an activity that benefited an individual. The High Court held, by majority, that the exercise by the council of the City of Perth of a statutory discretion to refuse planning permission for a particular use of land did not constitute the refusal of a service to grant that permission. Of the majority, Brennan CJ and McHugh J held that the exercise of a legislative discretion could not constitute a service. Dawson and Gaudron JJ held that the refusal to grant planning approval (the service identified in the complaint) was an incorrect way of characterising the service provided by the Council. That service was the consideration and disposition of applications for planning approval. While it could have been argued that decisions made in that process constituted the terms of the provision of that service, that was not the way in which the Complainant had argued the case. Gummow J (in the majority) and Toohey J (in the minority) adopted a similar approach to that of Dawson and Gaudron JJ.

Section 42 of the Act prohibits discrimination in the provision of services by doing any of the following -

• Refusing to provide a service; • In the terms on which the service is provided; • By subjecting a person to a detriment in connection with the provision of a service to that person.

Discrimination includes direct or indirect discrimination (s7). A person discriminates on the basis of an attribute (in this case political belief or activity) if he or she discriminates on the basis of that attribute, or on the basis of a characteristic generally appertaining or generally presumed to appertain to a person with that attribute.

Direct discrimination occurs if one person treats another with an attribute less favorably than the first person would treat someone else without that attribute or with a different attribute, in the same or similar circumstances (s8). The attribute need not be the sole or dominant reason for the treatment, but must be a substantial reason for it. In the context of this case, the Respondent will directly discriminate against the Complainant if, in an area covered by s42, it treats the Complainant less favorably than it would treat other people who have applied to have their given names and surnames listed in the white pages telephone directory.

Indirect discrimination occurs if one person imposes a requirement, condition or practice -

• That someone with an attribute does not or cannot comply with; and • That a higher proportion of people without that attribute or with a different attribute do or can comply with; and • That is not reasonable (s9).

In determining the reasonableness of a requirement condition or practice, there must be taken into account the consequences of failure to comply with it, the cost of alternatives, and the financial circumstances of the person imposing it (s9(2)).

The motive or awareness of the alleged discriminator is irrelevant in determining where the discrimination has occurred (ss8(2) 9 (3) and 10).

2.3 The Tribunal's jurisdiction

The principles to be applied in applications that challenge the Tribunal's jurisdiction to hear a complaint are different to those to be applied to an application under s109 of the Act. Those principles have been discussed in Nestle Australia Ltd v Equal Opportunity Board ([1990] VR 805) and CPS Management v Equal Opportunity Board ([1991] 2 VR 107). They have been discussed again and modified in the decisions of the Court of Appeal in State Electricity Commission v Rabel ([1997] EOC 92- 875) and Schwerin v City of Sale ([1997] 2 VR 219). The following propositions can be drawn from the cases we have cited -

1. The Tribunal may hold a Preliminary Hearing to determine a challenge to its jurisdiction to hear a complaint. A question of jurisdiction may also be raised at the full hearing of the complaint. 2. On a jurisdiction hearing, the Tribunal can only determine whether a valid complaint is before it or whether a complaint has been properly referred to it. If a valid complaint is before it and that complaint has been properly referred to it, or the Tribunal has determined under s124 of the Act to hear it without conciliation, the Tribunal "may" hear the complaint - that is, it has jurisdiction to hear it (s134). 3. A complaint must allege that another person has contravened part 3, 5 or 6 of the Act in relation to the Complainant or to the person on whose behalf the Complainant is acting pursuant to s104 of the Act. The complaint must contain details of the alleged contravention (s105). These are the only prerequisites for a valid complaint. 4. A complaint must not be construed in too formal or technical a way, or with the rigor of a document of pleading. It need not refer to specific sections of the Act, or set out its claims in terms used in the Act. However, the Complainant must make allegations that can be characterised as allegations of contravention of Parts 3, 5, or 6. 5. In determining whether a complaint makes an allegation of contravention of part 3, 5 or 6 of the Act, the Tribunal should interpret words used in the Act to have been used in their ordinary meanings. However, there may be cases where evidence on a jurisdictional fact is required. An example is where expert medical evidence might be required as to whether a particular condition or disorder amounts to an impairment as defined in the Act.

Where a question such as this arises the Tribunal should not substitute its own opinion for expert or technical evidence.

6. it is impermissible for the Tribunal to determine the question of jurisdiction by assessing the strength or weakness of the Complainant's case. 7. The Tribunal must be careful to determine whether a submission to it is challenging its jurisdiction or is simply claiming that the complaint has not been made out. If the submission claims the latter, it is not a submission as to the Tribunal's jurisdiction, and it should be dealt with at the full hearing of the complaint. If a submission, properly characterised , claims that the complaint has not been made out and relates to an issue which, if determined unfavorably to the Complainant, will cause the complaint to fail, the Tribunal may at a full hearing of the complaint deal with that issue before it deals with the other issues involved in the complaint.

2.4 Political belief or activity

The expression "political belief or activity" is defined in s4 of the Act. We have set out that definition under heading 2.1. Religious or political belief or activity were subsumed in the definition of "private life" in the Equal Opportunity Act 1984. Paragraph (a) of that definition covered the holding or not holding of any lawful political or religious belief or view. Paragraph (b) of that definition covered engaging in, or refusing or failing to engage in, any lawful religious or political activities. There are some important differences between the definition of "private life" in the 1984 Act and "political belief or activity" in the Equal Opportunity Act 1995. For the purpose of this comparison, we do not examine religious belief or activity, because it is not relevant to the present case. The first difference is a single definition that, although it is divided into two paragraphs, the definition of "political belief or activity" in the 1995 Act is single definition. In other words, a reference to "political belief or activity" will cover the whole definition - that is, it will cover both political belief and political activity. The second difference is that paragraph (b) of the definition refers to "activity" and not "activities". It is clear from this definition that it comprises both a single activity and a series of activities (see Interpretation of Legislation Act s37, which provides that the singular of a term includes the plural). In other respects the words used in both definitions are similar.

The part of the definition of "private life" in the Equal Opportunity Act 1984 that relates to political belief or activity has been the subject of a number of decisions of the Equal Opportunity Board and the Victorian Supreme Court. In our view, these decisions apply with equal force to the definition of "political belief or activity" in the 1995 Act. In other Anti-Discrimination jurisdictions, there have also been a number of decisions on the subject of political belief or activity. In considering these decisions, it must be borne in mind that not all jurisdictions refer to political belief or activity. For example, the West Australian Equal Opportunity Act 1984 refers to "political conviction", and the Commonwealth Human Rights and Equal Opportunity Commission Act 1986 refers to "political opinion". Care must be taken in applying in the Victorian jurisdiction decisions that were made in other Anti-Discrimination jurisdictions in the context of different legislation.

Some of the cases in the Victorian jurisdiction seem at first sight difficult to reconcile. A number of the cases have arisen because of union activity. Under the Equal Opportunity Act 1984, industrial activity (including union activity and union membership) was not a separate ground of discrimination. Trade unionists who believed that they had been the victims of discrimination were forced to bring their complaints under the provisions of the Act that related to discrimination on the grounds of political belief or activity. Some of the apparently conflicting decisions of the Equal Opportunity Board in this area can be explained by the difficulty of applying to trade union activity the concepts of political belief or activity - concepts which are not easily applicable to that situation. Nevertheless, the decisions concerning trade union activity and membership throw light on the meaning of political belief or activity in the 1984 Act and, by analogy, in the 1995 Act.

The starting point for an examination of the meaning of these terms is the ordinary meaning of political belief or activity (see the Nestle case and the CPS Management case , cited above). We use the Macquarie dictionary for these definitions. We now set out the relevant parts of those definitions.

"Belief -

1. that which is believed; an accepted opinion.

2. conviction of the truth or reality of a thing, based on grounds insufficient to afford positive knowledge...

3. confidence; faith; trust;...

Activity -

1. the state of action; doing.

2. the quality of acting promptly; energy.

3. a specific deed or action; sphere of action;...

4. an exercise of energy or force; an active movement or operation...

Political -

1. pertaining to or dealing with the science or art of politics.

2. pertaining to or concerned with a political party or its principles, aims, objectives, etc;...

3. exercising or seeking power in the governmental or public affairs of a State, municipality or the like...

4. of or pertaining to the State or its government...

5. affecting or involving the state of government...

6. engaged in or connected with civil administration...

7. having a definite policy or system of government...

8. of or pertaining to citizens...

View...

7. mental contemplation or examination; a mental survey.

8. contemplation or consideration of a matter with reference to action;...

9. aim, intention or purpose.

10. prospect or expectation...

12. a particular way of regarding something.

13. a conception, notion or idea of a thing; an opinion or theory. ...

24. to contemplate mentally; consider.

25. to regard in a particular light or as specified."

"Political belief or activity", then, covers a continuum beginning with the mental state of belief, including the expression of that belief (the holding of a view), and the forming of an intention to act, and also embracing action itself. The word "political" describes "belief" and also "activity". It has been held that, for a belief or activity to be political, it must bear on government - on the role, structure, feature, purpose, obligations, duties, or on some other aspect of government ( Nestle case and CPS Management case, cited above; Laroche v Equal Opportunity Board, Supreme Court of Vic, Gobbo J, 18 March 1991; for a similar view, see Ralph M Lee v Fort [1991] EOC 92 - 332). In our view, a belief or activity will also bear on government if it concerns the relationship between government and the governed - that is, the citizens of the society in question. The Supreme Court decisions in this jurisdiction do not go as far as have Anti-Discrimination Tribunals in other jurisdictions. They do not define "political' as including the distribution or utilisation of economic social or cultural powers in the society (for an example of this view see Croatian Brotherhood Union of West Australia v Yugoslav Clubs and Associations of West Australia [1987] EOC 92-190; for a contrary view, see O'Dea v Transportation Australia Corporation [1997] EOC 92-719).

What is political must be determined objectively, taking into account the nature of the activity or belief. In most cases , the perceptions of the parties will be irrelevant ( Duggan v South Yarra Constructions Pty Ltd [1987] EOC 92-220). A belief is not political because a person says or thinks it is. However, there may be cases where a person considers that a belief is political because the society in general, and all other people who hold that belief, also consider it so. This may well be evidence that the belief is in fact political.

Again, an activity is not political merely because it is motivated by a political belief. A person's political beliefs may lead him or her to do things which are not, by their nature and when objectively viewed, political. It is the activity itself which, when objectively viewed, must by its nature or purpose be political. However, there may be cases where the nature or purpose of an activity will be political because it so intrinsically involves the political beliefs of the people carrying on the activity that it takes its character from the expression of those beliefs. An example is a public meeting, the sole purpose of which is to express protest about a clearly political issue (see for example Williams v Council of Shire of Exmouth [1990] EOC 92-296). Some activities will be clearly political in their nature. Membership of or affiliation with a political party is one of these ( Evershed v City of Geraldton [1995] EOC 92-745). But there are many cases in which the line of demarcation between political and non-political activities will be difficult to draw and will depend on the facts of the particular case.

What is regarded as a political activity or belief must to some extent depend on the mores and attitudes and state of the particular society at the particular time (see the Nestle and CPS Management cases cited above; Jolley v Director General of Corrections [1985] EOC 92-124). At a given time, one society might regard certain activity as a criticism of government or a threat to its framework, while another may not. In the Nestle case and the CPS Management case , the Victorian Supreme Court commented that activities concerned with the existence of the right of freedom of association of employees may well be charaterised as political, whereas activities in Victoria concerning the exercise of that right (where the existence of that right was established and was not in question) may not necessarily be political.

These comments lead us to mention briefly the distinction between political and industrial activity. As we have said, the distinction has arisen in the context of union activity or membership, or a refusal to become a member of a trade union. As we have said, the need to decide whether these activities were political has arisen under the Equal Opportunity Act 1984, because that Act made discrimination on the ground of political activity unlawful, but did not deal with discrimination on the ground of industrial activity. The Equal Opportunity Act 1995 prohibits discrimination on the ground of both kinds of activity, and the distinction is therefore now of less significance. The cases on the distinction between political and industrial activity set out clear principles, but their decisions on their particular facts seem often difficult to reconcile. However, the principles are clear. The act of joining or refusing to join a trade union will not necessarily be political activity, but may constitute political activity if a major aspect of the union's activities is political rather that industrial and if the joining of the union can be said to be commitment to the union's involvement in that political activity.( Hein v Jaques Ltd [1986] EOC 92-188; Duse v State of Victoria [1987] EOC 92-208; Duggan's case cited above; Kannar v Pritchard [1989] EOC 92-267). It should also be borne in mind that there is a fine line of demarcation between whether a trade union's industrial activity relates only to internal working conditions or is directed to change the framework of government.

Care must be taken not to confuse the questions of whether a belief or activity is political and whether the belief or activity formed the basis of discrimination. In determining whether a political belief forms the basis (or underlying cause) of the discrimination, the alleged discriminator's knowledge of the belief or any of its manifestations may be relevant ( Duse's case and Duggan's case , cited above). Again, if a person refuses or fails to engage in a political activity, the person's reasons for doing so need not be political. It is the activity which must be political.

Before leaving this subject, we refer briefly and by way of illustration to some of the decisions concerning alleged political beliefs and activities. Submissions to parliamentary and other inquiries concerning the administrative reform of the Ambulance service have been held by the Victorian Supreme Court not to be political activities, because they occurred within and not outside the framework of government ( Laroche's case , cited above). The advocating of changes in the law in relation to age of consent to sexual intercourse and in relation to affirmative action have been held by the Victorian Equal Opportunity Board to be political activities ( Thorne v R [1986] EOC 92-182; Oldham v Womens Information and Referral Exchange [1986] EOC 92-158). A belief that the administration of public money should be ethically managed has been held by the Victorian Supreme Court not to be a political belief, because it relates to a belief that a society should be based on honesty rather than bearing on government ( CPS Management case , cited above). Criticism of the premises and staff of a particular prison made by the newly married wife of a prisoner has been held by the Victorian Equal Opportunity Board to be a personal rather than a political belief ( Jolley's case , cited above).

In the light of these principles we now consider the material before us.

3. The material before the Tribunal

The Tribunal has before it-

• The complaint; • The written and oral submissions made by the parties in relation to these applications.

The material before the Tribunal is essentially not in dispute. Where a dispute exists, we indicate this in our summary.

In early 1996, the Complainant changed his name to Nevil Abolish Child Support and Family Court. The Respondent (a telecommunications carrier licensed under Commonwealth legislation) provides a service to its customers of listing their telephone numbers in its White Pages directory. He asserts that he applied to have this name listed in the white pages telephone directory prepared by the Respondent. It appears from the material before us that the Complainant's name was listed for a short time in one of the regional directories but it was than removed from that directory. There is some dispute in the material before us about the number of times when the Complainant has applied to the Respondent to have his name listed in the white pages directory. However, there is no dispute that the Respondent has refused to list his name. In his material, the Complainant states that the Respondent stated that it refused to list his name on the basis that, under its listing policy, it was entitled to refuse to list names where listing was not in the best interests of the directory or directory users or might offend the public or a section of the public or directory users. The Complainant asserts that this refusal was because of his political belief or activity. He asserts that managers of the Respondent to whom he spoke, told him that they would list his name if he changed it to another name.

In October 1996, the Complainant requested the Respondent to list the name of a lobby group known as Abolish Child Support and Family Court in its white pages directory. There is no dispute that the Respondent also refused to list this name.

The Complainant disputes that his name might offend the public or directory users. He asserts that the Respondent has already published in its white pages directory a number of names that are clearly offensive. He claims (and the Respondent does not deny) that his change of name was according to law. He asserts that he has sent a number of documents to the Respondent as evidence of this.

In his written submissions, the Complainant also asserts that, in May 1997, after the Abolish Child Support and Family Court party had become registered and after he had submitted evidence to the Respondent of its registration, the Respondent again refused to list the name of that party in its white pages telephone directory. This claim is not part of the complaint. The complaint relates to matters alleged to have occurred in 1996. We do not treat this assertion as part of the complaint for the purpose of this proceeding.

The Complainant claims that the non listing of his name in the directory has made it difficult for people to contact him, and in particular those people who support his lobby group or political party.

4. The Submissions

The Respondent first submitted that we should characterise the listing service it provided by reference to IW's case . We agree. There is nothing in the material before us to indicate that the Respondent, in establishing its listing service, did so under broad statutory discretionary provisions similar to those relating to planning approvals in the IW case . The Respondent's listing policy is not before us. On the material before us, it would be open for us to characterise the service as a service of listing the names and telephone numbers of people and organisations that apply for listing. Refusal of that service would therefore fall under s42(1) of the Act. Alternatively, if the service operates under a similar discretion to that in the IW case , the service could be characterised as that of the consideration and disposition of applications for listing in the White Pages telephone directory. On that basis, the refusal to list the applicant's name or his party's name would not be a refusal to provide the service, but would constitute part of the terms on which the service was provided within the meaning of s42(1)(b), or a detriment in connection with the provision of that service within the terms of s42 (1)(c). It cannot be said that the Complainant's claim falls outside s42 of the Act.

The Respondent did not submit that the Complainant's claim of discrimination was misconceived - that is, that what the Respondent did could not fall within the terms of ss8 or 9 of the Act. Accordingly, it is unnecessary for us to consider these matters.

The Respondent's main submission was that the surname Abolish Child Support and Family Court was not capable of constituting a political belief or activity of the Complainant. It was submitted that a surname could only identify the individual who possessed it and could not tell us anything about the beliefs of that individual. It was submitted that, if the surname of a person also was the name of an occupation or object (such as cook or rollerdoor), it could not be implied from that surname that the person carried on that occupation or was that object. The Complainant rejected this submission and argued that his surname was a statement of his political belief or activity.

We accept the Complainant's submission. No doubt, most surnames will be nothing more than the identifier of the individual who possesses them. However, if a person changes his or her surname to a phrase which constitutes a statement having a clear meaning, and that statement advocates particular action, it is in our view open for the Tribunal to infer that this is an action advocated by that person with that surname. This is the situation with this Complainant's surname. It is a statement advocating action. It is open to the Tribunal to infer that the statement describes action which he advocates and is evidence or a manifestation of his belief in the action advocated. This surname is capable of constituting evidence or a manifestation of a belief, and the attempt to publicise it and what it advocates constitutes an activity.

In our view, the belief or activity represented by this surname is capable of being characterised as a political belief or activity. The statement "abolish child support and family court" advocates the abolition of a major arm of the judiciary and the judiciary, together with the legislative and executive arms of the Government, are part of our system of government. It also advocates the abolition of a major initiative of government policy. Both suggestions for abolition involve major legislative change or, if this abolition is not to be achieved by legislative change, some more violent action for change. In our opinion, the views represented by this statement bear on government and go beyond mere suggestions for administrative reform that fall within its framework. They are political beliefs or activities. We also note that suggestions for legislative change must in their implementation involve a political process.

It was also submitted for the Respondent that application for listing in a telephone directory is incapable of constituting a political activity. It is true that, if the application were motivated by a political belief which was not apparent from the application, it would be difficult to say that application for listing was capable of amounting to a political activity. However, this is not the case here. The Complainant's surname was an indication or manifestation of his political belief. The purpose of making the application was to enable him to be contacted by others with beliefs similar to his and to gain support and notoriety for his political party. In these circumstances, we are not satisfied that it can be said that this conduct is incapable of constituting a political activity.

We conclude that the allegations in this complaint are not incapable of amounting to allegations of contravention of part 3 of the Act. The application challenging the Tribunal's jurisdiction must fail.

We also conclude that the Respondent has not satisfied the Tribunal that the complaint should be struck out under s109. On the basis suggested by the Respondent, the complaint cannot be said to be frivolous, vexatious, misconceived or lacking in substance.

5. Conclusion

We conclude that both these applications should be refused.

No order for costs was sought.

The complaint will be placed in the Tribunal's list of Preliminary Conferences.

ORDER

On an application by the Respondent challenging the Tribunal's jurisdiction to hear this complaint and on an application by the Respondent under Section 109 of the Equal Opportunity Act 1995 and on reading the complaint and the material filed by the parties in relation to these applications, and on hearing the Complainant in person and Ms F O'Brien of Counsel for the Respondent, THIS TRIBUNAL DOES ORDER-

1. That both these applications are refused 2. That there is no order as to costs. 3. That this complaint is to be placed in the Tribunal's list of Preliminary Conferences according to its usual practice.

Dated this 28th day of October 1997.

Ms Cate McKenzie

President

Ms Joy Murphy

Member

Ms Elizabeth McCallum