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Australian Indigenous Law Reporter |
New South Wales Administrative Decisions Tribunal, Equal Opportunities Division (Magistrate Hennessy, Member Mooney, Member O’Sullivan)
14 January 2005
Race Discrimination — Goods and Services
In late 2001, Ms Edwards, an Aboriginal woman, inquired at the Bourke Shire Council about booking the Golf Club for her son’s 21st birthday. The General Manager of the Golf Club was responsible for making decisions about hire of the club. On 5 December 2001, the General Manager told Ms Edwards that she could not use the Golf Club for her son’s party.
On 17 December 2001, Ms Edwards attended a Council meeting and complained about that decision. The Council confirmed the decision. Ms Edwards brought a complaint of race discrimination against the Council. The Council denied that it has discriminated against Ms Edwards.
1. The issue is whether, in refusing to provide a service to the complainant, the Council discriminated against the complainant on the ground of race: [2].
2. In order to prove race discrimination, a complainant must establish on the balance of probabilities that he or she was afforded treatment that was less favourable than treatment actually or hypothetically afforded to a non-Aboriginal person, or to a person who did not have Aboriginal relatives or associates, in circumstances that are the same or not materially different: [2], [6].
3. To determine how the treatment afforded to a complainant may be compared with that of a hypothetical comparator, the Tribunal must first consider the grounds for the treatment afforded to the complainant: [11]. Dutt v Central Coast Area Health Service [2002] NSWADT 133 followed.
4. It is necessary to consider all the evidence before coming to a view about whether those grounds include race: [13].
5. In this case, the Council did not discriminate on the basis of race. However, the decision to refuse service was made on an ad hoc basis and without transparency. The decision-maker should have provided the complainant with written reasons for the decision, and the absence of any policy leaves the Council vulnerable to claims of discrimination: [22].
2. There is no dispute that by declining Ms Edwards’ application to hire the Golf Club, Council refused to provide her with a service (Anti-Discrimination Act 1977 s 19). The issue is whether, in refusing that service, the Council discriminated against Ms Edwards on the ground of race. In order to prove race discrimination, Ms Edwards must establish, on the balance of probabilities, that:
(a) the refusal to hire her the Golf Club was less favourable treatment than the treatment that was actually afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, in the same circumstances or in circumstances which were not materially different;
(b) if there is no non-Aboriginal person with whom to make a comparison, that the refusal to hire her the Golf Club was less favourable treatment than the treatment which would hypothetically have been afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, in the same circumstances or in circumstances which were not materially different;
(c) if either (a) or (b) is established, then that Ms Edwards’ Aboriginality; the Aboriginality of her relatives or associates; or characteristic that is generally imputed to Aboriginal people was at least one of the grounds for the refusal (Anti-Discrimination Act s 7 and s 4A).
3. We refer to the questions posed in (a) and (b) above as ‘differential treatment’. The issue in (a) is based on an actual comparator and in (b) on a hypothetical comparator. We refer to the questions in (c) as ‘causation’ (see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP5).
4. Certain matters raised during the hearing are either not relevant to the question of differential treatment or causation or have so little weight in relation to those issues as to be of very limited assistance. These include:
5. The Council presented evidence of Mr Varley’s record of achievement assisting Aboriginal and non-Aboriginal members of the community in Bourke. That evidence was said to be relevant to the question of whether Mr Varley would have discriminated against Ms Edwards on the ground of her race. None of that evidence establishes that Mr Varley has a tendency to hire or not to hire the Golf Club to Aboriginal people. For that reason we have not taken it into account in our assessment of whether or not a ground for refusing to hire the Golf Club to Ms Edwards was her race or that of her relatives or associates.
6. Same or similar circumstances. When comparing the treatment which was afforded to Ms Edwards with the treatment that was actually or hypothetically afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, the circumstances must be the same or not materially different. The parties were not in total agreement about the circumstances in which Ms Edwards was refused permission to hire the Golf Club. We make findings in relation to those circumstances below.
7. Circumstances in Ms Edwards’ case. When Ms Edwards held her son’s 18th birthday party at the Golf Club, one of the people at the party damaged the front door and broke a mirror. On 13 January 1999 Mr Varley wrote to Ms Edwards and asked her to pay for the damage, which amounted to nearly $600.00, by 31 March 1999. Mr Varley added that he understood that she was taking legal action against the perpetrator to recover the costs and that Council may consider an extension of time to pay if the matter was not resolved before the 31 March deadline. The letter concluded by saying that ‘Failure to pay Council may result in legal action against you to recover the cost plus a ban on future hiring of Council’s facilities’.
8. Ms Edwards contacted police about the damage and organised for the security guard who had been on duty at the party to provide a statement about the incident. She did not pay the Council the $600.00 because she anticipated that the Local Court would order the offender to compensate the Council for the damage. Ultimately the Local Court did make such an order and the Council refunded Ms Edwards her $300.00 deposit for the hire of the Club. In addition to the damage done on the night of the party, an Aboriginal person or people broke into the Golf Club premises the following night. Ms Edwards understood that Mr Varley blamed her for the break in and that that was the reason he refused to hire her the Golf Club for her son’s 21st birthday party.
9. Actual comparator? The Council provided the Tribunal with a list of the bookings for the Golf Club taken in the years 1996, 1998, 2001 and 2003. The diaries for the remaining years had apparently been lost. The Golf Club had been hired to many non-Aboriginal groups including the Meatworks Social Club for their Christmas Party in 1996. According to Ms Pelham, the Director of Finance and Administration, the Council had refused to hire the Club to the Meatworks Social Club after an incident on the premises on 25 July 1998 where there had been some damage to the premises. The notation in the diary next to the entry of 25 July 1998 states: ‘$300 damage, $150 hire, $60 cleaning’. Ms Pelham said that following an inspection by Council engineers of the premises they advised her not to refund the deposit. According to Ms Pelham, Mr Hart, another Council employee, may have known more about a later refusal to accept a booking from the Meatworks Social Club.
10. No actual comparator. While we accept Ms Pelham’s evidence that she did not refund the deposit to the Meatworks Social Club, we are not satisfied that Mr Hart or anyone else, refused to hire the premises to the Meatworks Social Club at a later date. Mr Hart did not give evidence and there was no corroborating documentary evidence produced in relation to the alleged refusal. Mr Varley was not aware of anyone being refused permission to hire the Golf Club premises apart from Ms Edwards even though someone acting as his delegate may have made that decision. In those circumstances, we are not satisfied that Council refused to hire the Golf Club to the Meatworks Social Club. Consequently there is no actual comparator and Ms Edwards must rely on a hypothetical comparator.
11. Hypothetical comparator. The issues of differential treatment and causation tend to conflate when the comparison is hypothetical. As the Tribunal pointed out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63], the Tribunal will not know how a hypothetical comparator would have been treated until the ground or grounds for the treatment of the applicant is known.
12. Possible grounds for the refusal. The evidence and submissions canvassed several possible reasons for Mr Varley’s decision. The possibilities are that he refused to hire the premises to Ms Edwards:
13. We must consider all the evidence when coming to a view about whether at least one of the grounds for Council refusing to hire Ms Edwards the Golf Club was race. ...
20. Ms Edwards submitted that the implausibility of Mr Varley’s explanation and the cumulative effect of circumstantial evidence lead to the inference that Mr Varley’s decision was based on race. Essentially Ms Edwards pointed to evidence that she said suggested that Mr Varley’s stated reasons for his actions were a pretext for what was actually a discriminatory reason. The circumstantial evidence to which Ms Edwards pointed includes:
21. In addition to those points, the fact that Council mentioned the report by the security officer [relating to a lack of control of the crowd at the 18th birthday party] as an ‘area of concern’ may tend to suggest that the reason Mr Varley gave was not the real reason for the decision. ...
22. Aboriginality of Ms Edwards or her relatives and associates. Although this evidence establishes that Mr Varley’s decision was ad hoc and lacking in transparency, we are not persuaded that the reason he gave for the decision was a pretext for him to discriminate against Ms Edwards on the ground of her race. We agree with Ms Edwards that Mr Varley should have provided her with written reasons for that decision. Mr Varley also agreed, in hindsight, that he should have done so. We also agree that the decision was not consistent with the letter that Council sent to Ms Edwards after the 18th birthday party and that Ms Edwards understandably expected to be able to hire the Club again. The absence of any policy also leaves Council vulnerable to claims of discrimination. However, we must also take into the fact that Mr Varley had hired the Golf Club out to Ms Edwards previously for her son’s 18th birthday and to several Aboriginal organisations including the Weilmoringle/Bourke Aboriginal Football Club and the Gundabooka Aboriginal Corporation. In that context, the idea that suddenly Mr Varley would refuse to hire the Golf Club to Ms Edwards because of her Aboriginality or that of her relatives or associates, is not credible.
23. Characteristics extension. The only other way in which the decision Mr Varley made on behalf of Council could amount to race discrimination is if it was made on the basis of ‘a characteristic that is generally imputed’ to Aboriginal people. Ms Edwards asked the Tribunal to find that the refusal was on the ground of a characteristic Mr Varley imputed to her and her partygoers, namely that as Aboriginal people they were more likely to cause damage to premises than non-Aboriginal people. This has been referred to as the ‘characteristic extension’ to the definition of discrimination (see Walker v State of New South Wales [2003] NSWADT 13). It is intended to cover situations where a person is stereotyped on the basis of their race, disability, marital status etc (see Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18).
24. Nature of characteristic in this case. We have found that Mr Varley’s reason for refusal was because of the damage done by a guest at the 18th birthday party and the time that it took for Council to be compensated for that damage. Consequently, in order to prove discrimination on the ground of an imputed characteristic, Ms Edwards would have to satisfy the Tribunal that it was a characteristic generally imputed to Aboriginal people that if they had damaged premises on one occasion and compensation was delayed, then it would be likely that that scenario would be repeated on a second occasion. No evidence was led in support of the assertion that this is a characteristic that is generally imputed to Aboriginal people. While we are not bound by the rules of evidence we are not satisfied that such a characteristic is something that is not reasonably open to question and is a matter of common knowledge or capable of verification by an authoritative document (see s 144 of the Evidence Act 1995).
25. Differential treatment. As we have said, the causation and differential treatment tests tend to conflate when the comparator is a hypothetical person. Consequently we are also satisfied that if a hypothetical comparison were made differential treatment would not be made out.
...
The full text of this judgement is available via the AustLII NSW Administrative Decisions tribunal website at www.austlii.edu.au/au/cases/nsw/NSWADT/.