www.adc.nt.gov.auWomen are a Special Measures Group– Decision by the NT Court of Appeal October 2006The Court of Appeal recently dismissed the appeal by Mr Robert Kennedy in the matter of Kennedy & Ors v Anti-Discrimination Commission, NT Government Office of Ethnic Affairs & Top End Women’s Legal Service [2006] NTCA 9.Mr Kennedy’s appeal against a decision by the Anti-Discrimination Commissioner to discontinue a complaint of sex
discrimination made by Mr Kennedy on behalf of the Lone Father’s Association was dismissed by the Court.
The complaint concerned a legal advice clinic held by Top End Women’s Legal Service (TEWLS) in November 2001 and funded in part by
Ethnic Affairs. The event was a free family law workshop aimed at migrant and refugee women. Mr Kennedy and other men who attempted
to attend were refused admission on the basis that the workshop was for women only. The men then complained of sex discrimination to
the Anti-Discrimination Commission. In August 2002 this complaint was discontinued by the Commission on the ground that the ‘special
measures’ exemption set out in section 57 of the Anti-Discrimination Act (’the Act’) applied because the reason for the discrimination was
to promote equality of opportunity for women, who are a disadvantaged group.
Mr Kennedy appealed against this decision. In March 2003 his appeal to the Local Court was allowed by Mr Gillies SM and the matter
returned to the Anti-Discrimination Commission for further investigation on the issue of whether or not women are a disadvantaged special
measures group within the meaning of the Act.
The further investigation was conducted by the Anti-Discrimination Commissioner, Mr Tony Fitzgerald, and in June 2004 he ordered
the discontinuation of the complaint on two grounds. The fi rst was that, because TEWLS was a non-profi t association established for a
community service or other similar purpose, it was exempted from the operation of the Act. The second reason given by the Commissioner
for discontinuing the complaint was that:
The project delivered by TEWLS and “promoted” by Ethnic Affairs is a “program, plan or arrangement designed to promote
equality of opportunity” for a disadvantaged group, namely women. This means that, by virtue of the operation of section 57 of
the Act, the conduct…is not unlawful discrimination.
In making this fi nding he said that:
It is clear that the “special measures” contemplated by the Act are designed to benefi t a disadvantaged group as a whole.
This means that justifi cation for the continued application of special measures does not cease until the disadvantaged group as
a whole has achieved equality of opportunity.
The Commissioner went on to say that, although the situation may need review from time to time to determine whether
women have managed to achieve equality, at present women continue to constitute a disadvantaged group.
Mr Kennedy appealed to the Local Court against the Commissioner’s decision. This time, in February 2005, his appeal was dismissed by
Mr Cavanagh SM, who agreed with the Commissioner’s fi ndings that both the exemption for non-profi t community service associations, and
the special measures exemptions applied. In commenting on the special measures issues, Mr Cavanagh SM said:
It apparently troubled another Magistrate dealing with another, previous appeal by the present appellants ….in relation to the
same matters… whether or not there was a general exemption, that magistrate wondering whether women generally and some
groups of women were in today’s age – could be described as disadvantaged.
I have no trouble at all in agreeing with Mr Tony Fitzgerald that migrant and refugee women especially are disadvantaged such
that measures such as a Family Law workshop targeting migrant and refugee women ought to be exempted under the Anti-
Discrimination Act despite there being some discrimination in excluding the male complainants.
Mr Kennedy then appealed the Local Court decision to the Supreme Court. In September 2005 his appeal was dismissed by Chief Justice
Martin on the basis that the Commissioner had made no error in law.
Following this dismissal, Mr Kennedy appealed to the Full Court of Appeal. The Appellant successfully argued that, due to wording in the
Act, the exemption applying to persons performing services on behalf of a non-profi t association established for a community service purpose,
did not apply to the association itself. This meant that, despite being a non-profi t association, TEWLS could be found liable for discriminatory
conduct. [Note: The Anti-Discrimination Commission intends to seek legislative amendment to clear up the apparent inconsistency which
exempts persons carrying out the work of non-profi t 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 fi nding 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 fi nding 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 Anti-Discrimination Commission when decisions
regarding the general application of the special measures exemption need to be made.
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