ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GORMAN v COMMISSIONER FOR SOCIAL HOUSING

(Discrimination) [2021] ACAT 94

DT 31/2018

Catchwords: DISCRIMINATION – application pursuant to section 55A of

the ACT Civil and Administrative Tribunal Act 2008 seeking to
give effect to a conciliation agreement – application for
compensation for respondent’s delay in implementing agreed
terms of conciliation agreement – whether the tribunal has the
power to make the order sought – section 55A must be exercised
in a way that ensures the terms of the conciliation agreement are
met

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 55A, 56, 74
Human Rights Commission Act 2005 ss 55, 62
Equal Opportunity Act 2010 (Vic) s 120
Anti-Discrimination Act 1977 (NSW) s 108

Cases cited: Leon Fink Holdings Pty Ltd v Australian Film Commission
(1979) 24 ALR 513
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986]
HCA 40

Tribunal: Presidential Member H Robinson

Date of Orders: 29 September 2021

Date of Reasons for Decision: 29 September 2021
 AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 31/2018

BETWEEN:

TRACEY GORMAN
Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING

Respondent

TRIBUNAL: Presidential Member H Robinson

DATE: 29 September 2021

ORDER

The Tribunal orders that:

1. The tribunal makes no order as to compensation.

………………………………..
Presidential Member H Robinson
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REASONS FOR DECISION

1. This is an application brought by the applicant pursuant to section 55A of the
ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) to “give effect
to” a conciliation agreement she entered with the respondent following a
conciliation process under the Human Rights Commission Act 2005 (HRC Act).
While much of this matter has been resolved by consent orders, there is an
outstanding issue as to whether the Tribunal may make an order for compensation
or damages when making orders pursuant to section 55A of the ACAT Act. This
decision deals with that issue.

Background
2. The applicant and her daughter are tenants of a property (the premises) owned
by the respondent.

3. On 29 May 2018 the applicant filed a discrimination complaint against the

respondent with the ACT Human Rights Commission (HRC), alleging
discrimination in the areas of the provision of goods, services and facilities and
accommodation.

4. The parties participated in conciliation. On 26 September 2019 the applicant

signed a conciliation agreement (the conciliation agreement) pursuant to section
62 of the HRC Act. A representative of the respondent signed the same agreement
on 5 October 2019.

5. The conciliation agreement is prefaced with the words “without any admission of
liability, the parties agree…” and is stated to be confidential. It contains five
operative clauses.

6. Clauses 1 and 2 deal with works that were agreed to be undertaken to the
premises. It is not in contest that the respondent met these obligations.

7. Clause 3 relates to sourcing and undertaking disability awareness training for staff
“within four to six months”. The parties agree that this has been completed. The
applicant was notified on this by way of a letter dated 22 December 2020.
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8. Clauses 4 to 6 provide that:

4. Within four to six months of signing this agreement Housing ACT will
complete a review of policies with a view to involving parents, carers
and guardians in decision making processes about modifications for
disability properties and make any necessary improvements to and
consolidation of these policies to ensure that this occurs;
5. Within four to six months of signing this agreement Housing ACT will
complete a review of their current Business Rule on Disabled
Modifications in relation to air-conditioning and make any necessary
improvements in consultation with relevant organisations;
6. Within two weeks of completing each of the actions outlined in
clauses 1 to 5 of this agreement, Housing ACT will advise the ACT
HRC that each action has been completed.

9. The respondent did not complete the actions agreed to in clauses 4-5 within the
agreed timeframes i.e. they were not completed by April 2019. They remained
uncompleted at the time the applicant filed this application, and at the time of the
hearing.

10. Throughout 2019-2021 the HRC and the applicant’s lawyers made numerous
enquiries as to ACT Housing’s progress in relation to those reviews. The
responses from the respondent, while polite and apologetic, were generally also
vague and non-committal as to timeframes for completing of the reviews.

11. On 8 April 2021 the applicant lodged this application with the tribunal.

12. At the first directions hearing on 20 July 2021 the respondent conceded that they
had not complied with clauses 4 to 6. The respondent’s representative requested
an adjournment to seek instructions about a timeframe.

13. At the next hearing on 10 September 2021, the respondent agreed to orders
pursuant to section 55A of the ACAT Act that the reviews provided for in clauses
4 and 5 of the conciliation agreement be completed by 30 September 2021. I
made orders accordingly.

14. The only question remaining is whether the applicant can and should seek $1,000
compensation to reflect the hurt, stress and inconvenience of having to pursue
enforcement of these clauses for over two years, including in the Tribunal.
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Legislative basis
15. Section 55(1) of the HRC Act provides that the HRC may, at any time, conciliate
a complaint, if satisfied the complaint is appropriate for conciliation.

16. Section 62(1) of the HRC Act provides that if a complaint is resolved by
conciliation, the commissioner may help the parties to make a written record (a
conciliation agreement) of the agreement the parties have reached.

17. Section 62(3)(b) of the HRC Act provides that if the complaint is, inter alia, a
discrimination complaint, the commission must give a copy of the complaint to
the tribunal.

18. Section 55A of the ACAT Act then provides for conciliation agreements made
under section 62(1) of the HRC Act to be enforced through the Tribunal:

55A Conciliated agreement orders

(1) This section applies if a conciliation agreement about a
complaint is given to the tribunal under the Human Rights
Commission Act 2005, section 62 (3) (b).
(2) The tribunal must keep a copy of the agreement.
(3) On application by a party, the tribunal may make any order it
considers appropriate to give effect to the agreement.
(4) A decision of the tribunal to refuse to make an order under this
section does not affect the validity of the conciliation
agreement.

19. Section 56(d) of the ACAT Act provides that, in addition to the range of powers
set out elsewhere, the Tribunal may:

(d) take any other action in relation to an application—

(i) that the tribunal considers appropriate; and
(ii) that is consistent with this Act or an authorising law.

20. The question before the Tribunal is whether any of these powers, whether under
section 55A or section 56(d), would authorise the Tribunal to make an order of
the kind sought by the applicant in relation to the payment of compensation.

The applicant’s submissions

21. The applicant filed and relied upon some two hundred pages of emails and other
communications between the applicant’s lawyer, the HRC and the respondent in
which attempts were made by the former two to follow up on the respondent’s
 5

implementation of the agreement. The applicant also filed a statement which

detailed the stress and frustration she has experienced trying to enforce the
conciliation agreement, the emotional toil it has taken on her, and her loss of faith
in the respondent. This evidence was unchallenged.

22. In essence, the applicant submitted that the Tribunal may make an order for a
penalty under section 55A of the ACAT Act, as this is a means to ‘give effect to’
the conciliation agreement. The applicant further submitted that the word ‘may’
gives the Tribunal a ‘very broad’ discretion under section 55A to ‘make any
order’, and that power should not be artificially constrained or read down. The
applicant submitted that:

Whilst there is no specific case law on the meaning of ‘give effect to’ in the
context of section 55A, in Australian Competition & Consumer Commission
v Visy Paper Pty Ltd, the Federal Court stated that in contract law: ‘give
effect to’, in relation to a provision of a contract, arrangement or
understanding, includes do an act or thing in pursuance of or in accordance
with or enforce or purport to enforce.

23. The applicant submitted that such an award would recognise that the delay has
imposed an emotional and psychological burden on the applicant. The implication
appears to be that, given the delays in implementing the promised reviews, simply
making orders allowing enforcement of the agreed terms would not be sufficient
to give effect to the agreement, and “that something more is required to ‘give
effect to’ the agreement and to ensure the Respondent’s compliance”.

24. Alternatively, the applicant submitted, such an order would “serve to accelerate
action on the part of the Respondent to fulfil its obligations in future cases and
reduce the need of vulnerable parties to resort to enforcement proceedings at
ACAT”.1

25. Moreover, the applicant submitted that regard should be had to the situation in
other jurisdictions, where compensation orders can be made by a tribunal in
similar circumstances. For example, in Victoria, conciliation agreements
produced with the assistance of the Victorian Human Rights Commission are
taken to be an order of the Victorian Civil and Administrative Tribunal (VCAT),

1
Paragraph 17 of the applicant’s submission
 6

once registered.2 Section 125(a)(ii) of that Equal Opportunity Act 2010 (Vic)
allows VCAT to make orders for compensation for loss, damage, or injury
suffered in the consequence of any contravention. Similarly, in NSW, the NSW
Civil and Administrative Tribunal (NCAT) may award damages of up to
$100,000 in the case of any complaint referred to it by the Anti-Discrimination
Board.3

26. The applicant acknowledged that such a power was “not explicit” in the
Territory’s legislation, but:

Limiting the scope of section 55A to orders made only on the same or
similar terms of a conciliation agreement artificially limits the utility of
section 55A and doing so is inconsistent with approaches taken in NSW and
Victoria. It is submitted that a narrow interpretation is also contrary to the
objects and purposes of the ACAT Act, which include ensuring that
applications to the Tribunal are resolved as quickly as is consistent with
achieving justice, ensuring the Tribunal’s decisions are fair, enhancing the
quality of decision making and encouraging and bringing about
compliance in decision making under legislation.

27. A power to award compensation could, the applicant submitted, be implied from
the language and context of the Act, meaning that ACAT has the power to:

a. … make any order that will ensure that a breaching party will carry
out the terms of the agreement in practice; and
b. Any order that would ensure compliance, including an order for
compensation, would fall within the broad scope of section 55A.

The respondent’s position

28. The respondent’s position is that section 55A of the ACAT Act clearly does not
permit the making of a compensation order.

29. The respondent submitted that:

10. The word ‘effect’ is not defined in the ACAT Act or in the Legislation
Act 2001. So, we must consider the ordinary meaning of the word.
The Macquarie Dictionary defines the verb of the word ‘effect’ as “to
produce as an effect; bring about; accomplish; make happen.”
11. Using this definition in the present context, the Tribunal may only
make an order under s 55A of the ACAT to “accomplish” the
conciliation agreement, or “make [it] happen”. In other words, to
ensure that the terms of the conciliation agreement are met

2
Equal Opportunity Act 2010 (Vic) section 120(4)
3
Anti-Discrimination Act 1977 (NSW) section 108(2)(a)
 7

12. It is the Respondent’s submission that the order sought by the

Applicant will not do this. Even the Applicant contends that this order
would “serve to accelerate action on the part of the Respondent to
fulfil its obligations in future cases and reduce the need of vulnerable
parties to resort to enforcement proceedings at ACAT” (paragraph
17 of the Applicant’s submission).
13. In the Respondent’s submission, this is not about giving effect to the
conciliation agreement between the Applicant and the Respondent,
but about avoiding a similar situation for other applicants. This is
outside of the scope of s 55A.

30. The respondent noted that the Tribunal has an express power under section 74 of
the ACAT Act to order the payment of money ‘to the Territory’ where a party
has, without reasonable cause, failed to comply with an order of the Tribunal. As
a matter of statutory interpretation, the specific power in section 74 of the ACAT
Act would tell against the general power in section 56(d) being read in a way that
would permit the Tribunal to order payments for other breaches, or to other
persons, such as another party.

Consideration
31. I accept that the respondent has been in breach of the conciliation agreement since
April 2019. During that time, the applicant, her representatives and the HRC have
made sustained and dedicated efforts to get the respondent to comply with the
agreement. I accept the applicant’s evidence as to the toll seeking enforcement of
the agreement has taken on her.

32. However, the mere fact of the respondent’s breach, even its ongoing breach, does
not provide a basis for the Tribunal, sitting in this jurisdiction, to make a
compensation order.

33. Section 55A(3) of the ACAT Act provides that the tribunal may make “any order
it considers appropriate to give effect to” a conciliation agreement given to the
tribunal under the HRC Act, section 62(3)(b). This is a broad power, but it must
be viewed in the context of the terms, language, scope, purpose and context of
the legislation as a whole.4

4
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [39]
 8

34. As extracted above, the dictionary meaning of ‘give effect to’ is “to put into
practice” or “make operative” or “make happen”: the purpose of section 55A of
the ACAT Act is to allow the Tribunal to craft orders that give effect to, or make
happen, the terms set out in the conciliation agreement. Consequently, having
regard to the context, the discretion in section 55A must be exercised in a way
that is directed to “making the agreement happen” – or, in other words, ensuring
that that the terms of the conciliation agreement are met.

35. The compensation order sought by the applicant does not, and cannot, “give effect
to” the terms of the agreement. Nothing in the outstanding terms of the agreement
gives right to a right to compensation for the applicant. To order compensation
would be to make an order that was additional to matters agreed in the conciliation
agreement and is beyond power.

36. It may be that there are cases where monetary damages could be the best or only
way of giving effect to an agreement – for example, in a situation where work is
to be performed, and the respondent signatory does not perform that work,
compensation may be awarded so that the applicant can have the work performed
by another person, or the value of the work otherwise. But this is not such a case.

37. Section 55A is not intended as a means of ensuring compliance with agreements.
It is a means of having the agreement embodied in orders so that the orders can
be enforced – in other words, the agreement between the parties is given a new,
changed character, as orders of the tribunal rather than a private agreement.
Those orders are enforceable through an enforcement process in the Magistrates
Court. This may overcome difficulties that arise if a conciliation agreement is
instead sought to be enforced as a private contract.

38. The Tribunal’s jurisdiction to make punitive orders for breach of its orders is
found in section 74 of the ACAT Act. This power is available only where a party
fails to comply with an order of the tribunal. The respondent has not breached
tribunal orders, so this provision is not available in this case. No other provision
provides a relevant power to penalise the respondent.

39. There is also merit in the respondent’s argument that the specific power to impose
penalties in section 74 of the ACAT Act limits a broader reading of the general
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power in section 56(d) to do so. The legal maxim generalia specialibus non
derogant provides that there is a conflict between a general and a specific
provision the specific provision must prevail, and this has been held to apply also
to the relation to the conferral of general and specific powers: see Leon Fink
Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513.

40. In does appear that in other jurisdictions, including Victoria, tribunals are given
the power to impose punitive orders on parties who fail to comply with
conciliation agreement. However, that is not the case in the Territory. That these
powers are expressly conferred in other jurisdictions better supports the argument
that they should not be inferred in this jurisdiction, as the Territory’s legislature
has implemented a different legislative framework.

41. The respondent’s delay in meetings its obligations under the conciliation
agreement is disappointing and I acknowledge that the applicant, having
negotiated a settlement in good faith, is frustrated and hurt by the process. I share
the applicant’s concerns that simply ordering the respondent to do what it agreed
to do several years ago does not truly give effect to the spirit of the conciliated
agreement. However, this alone does not grant me to the power to award damages
or compensation for the breach, or to alter the terms of the settlement agreement
to provide a monetary remedy for the delay.

42. I am satisfied that the Tribunal does not have the jurisdiction to make the
compensation order sought and decline to make any further order.

………………………………..
Presidential Member H Robinson

Date(s) of hearing 10 September 2021

Solicitors for the Applicant: Ms F Choudhury, Canberra Community Law
Respondent: Mr D Boggs, Tribunal Advocate