NCAT Deputy President has questions to answer

Deputy President of the New South Wales Civil and Administrative Tribunal (NCAT), Nancy Hennessy, has attended and spoken at a fundraiser for the HIV/AIDS Legal Centre while presiding over a matter in which the HIV/AIDS Legal Centre was acting. This appears to be a violation of the NCAT Member Code of Conduct and will be sure to raise eyebrows in the NCAT, particularly as Magistrate Hennessy was recused from a separate homosexual vilification matter on 25 May 2015 due to issues of bias.

Consequently, it would appear that there are serious questions over the way Magistrate Hennessy has led the Administrative and Equal Opportunity Division of the NCAT. This division oversees anti-discrimination law and homosexual vilification matters in New South Wales.

Magistrate Hennessy spoke at the event titled, ‘Discrimination: Just another compliance cost?’ on 10 March, 2015. The website selling tickets introduced Magistrate Hennessy as the Deputy President of NCAT and stated:

“All proceeds from this event will go towards the HIV/AIDS Legal Centre’s ongoing funding campaign to maintain its provision of legal services to vulnerable people living with HIV.”

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Event information for ‘Discrimination law: Just another compliance cost?’ used to raise funds for the HIV/AIDS Legal Centre.

The Australian Federation of Aids Organisations website covered the event. It reported that during her presentation, Magistrate Hennessy gave her opinion about the state of anti-discrimination law in New South Wales:

“New South Wales Magistrate Nancy Hennessey spoke from her experience at a state level. When the NSW anti-discrimination law was first introduced, it was a cutting edge law; it covers a range of grounds, including, homosexuality and HIV-status.

However, it has since been leap-frogged by other jurisdictions, with it, for example, failing to provide protections for bisexuality and intersex status. She also explained that a majority of individuals who are pursuing a discrimination complaint do not have legal representation, and so are at a major disadvantage in advancing their claims.”

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Magistrate Nancy Hennessy speaking at a fundraiser for the HIV/AIDS Legal Service on 10 March, 2015.

Thirteen days later, on 23 March 2015, Magistrate Hennessy issued two decisions in a matter in which the HIV/AIDS Legal Centre was acting. The HIV/AIDS Legal Centre represented a HIV positive man who claimed that TAL Life Limited discriminated against him by refusing to provide him with life insurance.

NCAT Decision

Screenshot of decision published by Magistrate Nancy Hennessy 13 days after she attended the HIV/AIDS Legal Centre fundraiser. It shows that the HIV/AIDS Legal Centre was representing the applicant in this matter.

The NCAT Member Code of Conduct states that Tribunal Members are to act in an impartial manner in order to prevent apprehension of bias or actual bias and to refrain from associating with parties to proceedings or their legal representatives in the absence of other parties.

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The NCAT Member Code of Conduct outlines clear provisions for Tribunal Members to follow in order to ensure that they behave in a way that does not lead to perceived or actual bias.

The Code of Conduct also states that Tribunal Members should not allow themselves to be put in a position where their independence may be compromised or perceived as such. It specifically states that even part time Members must not provide services to individuals or bodies who are litigants before them in the Tribunal. In addition, the Code of Conduct states that, as a general rule, social invitations by parties or representatives in Tribunal proceedings should be declined. Drinks and light refreshments were provided at the event Magistrate Hennessy attended and spoke at.

As Magistrate Hennessy is the Division Head for the Administrative and Equal Opportunity Division she also has the responsibility to ensure that Tribunal Members in her division comply with the Code of Conduct.

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NCAT Division Heads are to ensure that Tribunal Members within their division comply with the Code of Conduct.

Magistrate Hennessy has previously supported events for law firms that specialise in HIV and homosexual vilification complaints. In March 2012, Magistrate Hennessy gave training to equip law firms to run LGBTI discrimination and vilification complaints. There is no evidence that Magistrate Hennessy or any other member of the NCAT has ever run training for those who may need to defend themselves against such complaints. The Community Legal Centre’s 2011/12 Annual Report states that:

“Over two days in March 2012, the Inner City Legal Centre conducted a CLE program to equip lawyers to run LGBTI discrimination and vilification complaints in the Anti-Discrimination Board (ADB) and Administrative Decisions Tribunal (ADT). Twenty four lawyers from CLCs and private firms attended the training, which was hosted by Gilbert + Tobin. The aim of the training was largely to increase the capacity of ICLC to run discrimination and vilification matters by having a trained group of lawyers the Centre can approach from time to time who can assist with such matters on a pro bono basis.”

It also states that Magistrate Hennessy:

“led a session about the procedure involved in running discrimination and vilification matters once they are referred to the ADT.”

Magistrate Hennessy was not involved in hearing any homosexual vilification complaints at that time, however, there has been a large increase in the volume of homosexual vilification matters before the NCAT or its predecessor Tribunal over the last three years. Half of all complaints heard since New South Wales introduced homosexual vilification laws in 1993 have been heard in this period. Magistrate Hennessy has been the presiding member for most of these matters, almost all of which have been brought by New South Wales’ most prolific homosexual vilification litigant, Gary Burns.

NCAT matters

This table shows all homosexual vilification complaints finalised in New South Wales since 2012. Gary (or Garry) Burns has been responsible for lodging almost every complaint and his complaints have been upheld on every occasion. Homosexual vilification laws were introduced in New South Wales 22 years ago; half of all complaints have been heard in the last three years.

This information comes to light just a few weeks after Magistrate Hennessy was recused from a matter involving Gary Burns brought before the Administrative and Equal Opportunity Division of the NCAT. The judgment in relation to that decision has not been published.

NCAT policy states that the Administrative and Equal Opportunity Division routinely publishes all of its written reasons for decisions, unless the presiding member has made an order prohibiting or restricting publication. It is not known if Magistrate Hennessy has made this order.

However, the general guidelines state that the Tribunal will publish decisions if requested by parties to a matter and to ensure that the Tribunal is accountable, open and transparent, to promote public confidence and to educate and provide guidance to legal practitioners in relation to principles, procedures and practices.

It would seem that a decision to recuse a Deputy President of the Tribunal would fall squarely into those categories. This website is, therefore, awaiting the publication of that decision which should be made available on or about 23 June, 2015.

Author: Bernard Gaynor

Bernard Gaynor is a married father of eight children. He has a background in military intelligence, Arabic language and culture and is an outspoken advocate of conservative and family values.

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