Edwards -v- Bourke Bowling Club Limited [2000] NSWADT 31

CITATION: Edwards -v- Bourke Bowling Club Limited [2000] NSWADT 31 DIVISION: Equal Opportunity Division APPLICANT Janice Edwards PARTIES: RESPONDENT Bourke Bowling Club Limited FILE NUMBER: 31 of 1998 HEARING DATES: 26/10/99, 27/10/99 SUBMISSIONS CLOSED: 12/21/1999 DATE OF DECISION: 03/31/2000

BEFORE: Britton A - Judicial Member; McDonald O - Member; Edwards K - Member APPLICATION: Race Discrimination - Registered Club - Sex Discrimination - Registered Club MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Alone -v- State Housing Commission ("Homewest") (1992) EOC 92-392 Fenwick -v- Beveridge Building Products Pty Ltd (1986) EOC 92-147 Khanna -v- Ministry of Defence (1981) I.C.R. CASES CITED: Chamberlain -v- The Queen (1984) 153 CLR 52 Shepherd -v- The Queen 97 ALR 161 Department of Health -v- Arumugam (1987) EOC 92-195, (1988) VR 319 Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT Jones -v- Dunkel (1959) 101CLR 298 APPLICANT REPRESENTATION: D Black, barrister RESPONDENT D McKay, solicitor ORDERS: 1. That the complaint be dismissed.; 2. No order as to costs.

INTRODUCTION 1 The applicant, Mrs Janice Edwards is an Aboriginal woman who joined the Bourke Bowling Club (the "Club") in December 1994. She complains that the Club, in various dealings with her in 1995 and 1996, in particular suspending her from membership in 1995 and later refusing to readmit her to membership, unlawfully discriminated against her on the grounds of her race and sex. 2 On May 1 1995 Mrs Edwards lodged a complaint with the Anti Discrimination Board alleging discrimination on the grounds of race. A second complaint of race discrimination was lodged with the Board on 4 February 1997. Conciliation was attempted but unsuccessful. Her legal representatives wrote to the Board on 12 February 1998 requesting that the matter be referred to the Equal Opportunity Tribunal. 3 Counsel for the applicant, Ms Black, submits that the Club's treatment of Mrs Edwards constitutes unlawful discrimination under s20A and s34A of the Anti-Discrimination Act 1977 ("the Act"). Sections 20A and s34A of the Act render unlawful discriminatory acts by a registered club in certain dealings with members and non-members. 4 Mr McKay, for the respondent, submits that Mrs Edwards has not received less favourable treatment from the Club, referrable to her race or sex. The Club's decision to suspend Mrs Edwards from membership in 1995 and to refuse her readmission in 1996 were entirely reasonable in light of Mrs Edwards' inappropriate behaviour on Club premises. ISSUES 5 The issues for determination in this Inquiry are: First, did the Club treat the applicant treated less favourably than it had treated or would treat a non-Aboriginal person in the same or similar circumstances? Second, if so, was the treatment suffered by the applicant "on the ground of" her race? Third, and independent of the above, was the applicant treated less favourably by the Club than the respondent had treated or would treat a male in the same or similar circumstances? Fourth, if so, was the treatment suffered by the applicant "on the ground of" her sex? FACTS 6 Mrs Edwards was admitted to membership of the Club on 16 December 1994. 7 On the evening of 24 February 1995 an altercation took place between Mrs Edwards and Sergeant Cross, an off-duty police officer based at Bourke. Mrs Edwards alleges Sergeant Cross provoked her by calling her a slut. Sergeant Cross denies this. Mrs Edwards was asked to leave by (then) Acting Club Manager, Mr Robert Rumble. Mrs Edwards left the Club as requested. 8 On 26 February 1995 Mrs Edwards made an official complaint to the Bourke Police about Sergeant Cross's comments to her on Friday evening. This complaint was the subject of a Conciliation Report, signed by Mrs Edwards on 27 February 1995. 9 The Club wrote to Mrs Edwards on 27 February 1995 advising her that her membership had been revoked until the next Board meeting of the Club due to your unacceptable behaviour at the Club on February 24. 10 Mrs Edwards was invited to attend a meeting of the Club's Board scheduled for 21 April 1995. She attended this meeting and spoke to the proposed suspension. 11 Mrs Edwards was advised by letter, dated 22 May 1995, that her membership of the Club had been suspended for the "life of the Board", that is the unexpired portion of the term of office of the directors elected to the Board. The Club's directors are elected for a one-year term at the Club's Annual General Meeting. She was told she could apply for re-admission to the new Board. 12 Mrs Edwards submitted a membership application in December 1996. The Board advised her by letter, dated 21 December 1996, that the application was unsuccessful. Since then Mrs Edwards has not applied for readmission. 13 The Board of Directors of the Club makes decisions relating to Club membership. Such decisions are determined by a simple majority of those Board Directors present at the relevant meeting. Voting in relation to admission and readmission is by way of a secret ballot. Votes in relation to membership suspension are by a show of hands. 14 From 1995 to 1999 the majority of members suspended from the Club for alleged inappropriate behaviour were suspended for the life of the Board. 15 With the exception of Mrs Edwards, all persons suspended from the Club because of alleged inappropriate behaviour have been readmitted on application. Not all expelled members have re-applied for admission. EVIDENCE Mrs Edwards Incident 24 February 1995 16 Mrs Edwards gave evidence that she attended the Club in the company of her husband Mr Robert Olsen and family friend, Mr Michael Knight. 17 At about 10.30pm she approached Sergeant Maurie West, who was also at the Club that evening, and inquired about the progress of a complaint made to the Ombudsman relating to her son. Sergeant Gerard Cross, who was also at the Club at the time, was playing poker machines and was, in her estimate, "a few machines away". 18 During the course of this conversation Sergeant Cross approached Sergeant West and herself and Mrs Edwards, and according to her said: "Hey you little slut, you can get the Ombudsman or whoever you like," to which Mrs Edwards replied "don't you call me a slut".(Affidavit, J. Edwards , 7 April 1999, par 4) 19 In cross-examination Mrs Edwards stated that Sergeant Cross had used the words: "Hey you little black slut you can get the Ombudsman or whoever you like". 20 Mrs Edwards gave evidence that Mr Olsen was at the Club on the evening of 24 February 1995. She said that after the altercation with Sergeant Cross, Mr Olsen approached Sergeant Cross and said, "Fuck you, don't call my wife a slut". 21 Mrs Edwards said that directly after the incident she verbally complained to Mr Rumble, "That Inspector has just called me a black slut." 22 At the request of Mr Rumble Mrs Edwards then left the Club premises in the company of her husband and others. Mrs Edwards said that she walked over to a police car that had just arrived outside the Club and reported the words Sergeant Cross had used. 23 In cross-examination she denied abusing Sergeant Cross and using offensive language. She further denied that she was a different person when drinking. She said she did not use offensive language, drunk or sober. Conciliation Report 24 Mrs Edwards gave evidence that following the Club incident she made an official complaint to the Police about her treatment by Sergeant Cross. On 26 February Sergeant Carey of Bourke Police Station visited her at home. In her presence Sergeant Carey had completed a Conciliation Report. Under the heading "Details for basis of Conciliation" it read: