Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Rota v Manly 16 Foot Sailing Club and SafeCorp Security Pty Ltd [2012] NSWADT 88 Hearing dates: 9 February 2010 Decision date: 11 May 2012 Jurisdiction: Equal Opportunity Division Before: Furness, G SC, Judicial Member, Newman, J, Non-Judicial Member McClelland, J, Non-Judicial Member Decision: Complaints of race discrimination against each respondent dismissed Catchwords: Race discrimination - Registered Clubs - proof of membership - Goods and Services - whether security guards provide services to patrons Legislation Cited: Anti-Discrimination Act 1977 Liquor Act 2007 Cases Cited: Sharma v Legal Aid Queensland [2001] FCA 169 JM and JN v QL and QM [2010] NSWADT 66 Category: Principal judgment Parties: Glen Rota (Applicant) Manly 16ft Skiff Sailing Club Ltd (First Respondent) Safecorp Security (Second Respondent) Representation: Counsel B Clark (Respondents) K P O'Donnell & Associates (Applicant) File Number(s): 111084 REasons for decision Introduction 1Glen Rota is a Maori man and a member of the Forest Rugby Club. He made a complaint to the Anti-Discrimination Board (the Board) dated 23 September 2010 about the Manly 16 foot Skiff Sailing Club (the Sailing Club) and Safe Corp Security Pty Ltd (Safe Corp Security). 2He complained that on 18 September 2010 he attended the Sailing Club for end of season drinks for his Rugby Club. Most players arrived at 12 noon and he arrived at about 3.30pm. At about 6.30pm he was told by a bouncer, that is a security guard employed by Safe Corp Security and contracted to the Sailing Club that he was drunk and had to stop drinking. He did so. At about 7pm he was told to leave the club. 3The Board referred his complaints to the Tribunal and in the President's summary of complaint, the complaint against the Sailing Club was said to be 'Race, registered clubs, vicarious liability of employers' and sections 7, 20A and 53 of the Act were cited. The complaint against Safe Corp Security was said to be 'Race, goods and services, liability of employers' and sections 7, 19 and 53 of the Act were cited. 4In his Points of Claim, Mr Rota's complaint against the Sailing Club was characterised as he was directly discriminated against on the ground of his race in the area of Registered Clubs (ss.7, 20A and 53). Further, Mr Rota's complaint against Safe Corp Security was characterised that the security guard discriminated against him on the ground of race in the area of goods and services (ss. 7, 19 and 53). 5Thus, the complaints which were referred from the President of the Board did not include a complaint against the Sailing Club on the basis that discriminated against him in the provision of goods or services. Further, in his Points of Claim before the Tribunal, Mr Rota did not assert that the Sailing Club had discriminated him in the provision of goods or services. 6The Sailing Club, in correspondence to the Board, denied the complaint and stated that the applicant was asked to leave the Sailing Club because he was intoxicated and, having formed that view, the Sailing Club was obliged to ask him to leave under the NSW liquor laws. 7Safe Corp Security did not respond to any of the requests made by the Board for a response to the complaint. The Hearing 8The applicant gave evidence and relied on his letter of complaint to the Board. His wife made a statement and gave evidence. Armstrong Hayes, the head of security at a hotel in Manly, made a statement, however, he was not available to give evidence. Mr Clark, counsel for the two respondents objected to the statement being tendered and, Mr O'Donnell, solicitor for the applicant, did not press its tender. Andrew Melville, the coach of the Rugby team made a statement and gave evidence. 9For the respondents, Nathan Doyle, Customer Services Manager of the Sailing Club made a statement and gave evidence, as did Matt Hazell, Secretary Manager of the Sailing Club and John Lohr, owner and Managing Director of Safe Corp Security. The security guard on duty at the Sailing Club on 18 September was not able to be located and did not make a statement or give evidence. The applicant's evidence 10In his statement, made a few days after the events occurred, Mr Rota said that his Rugby Club organised end of season drinks for all players at 12 noon on Saturday 18 September 2010. Most players arrived at 12 noon and he arrived at about 3.30pm. He had a meal during the afternoon. His wife arrived at about 6.30pm. Shortly after she arrived, he went to the men's toilet and was confronted by the bouncer (the security guard) who said that he was drunk and had to stop drinking. While he disagreed with that assessment, he did stop drinking. He returned to his table where his wife and coach were sitting and continued their discussion. He said "the others around me, who had been there since the beginning, were quite loud and were drunk and I was actually surprised that they hadn't been asked to leave earlier". His team mates were all white. He said that no one else was asked to leave or cautioned. 11At about 7pm, the bouncer came looking for him and pointed at him and asked him to go with him. Mrs Rota intervened and asked the bouncer to come to them and told the bouncer that her husband had not had a further drink. The bouncer said he didn't care and told him to get out. 12The applicant told the bouncer to "come outside and sort it out". The bouncer said he was going to call the police. Mrs Rota told the bouncer he was discriminating against Mr Rota on the basis of his race. The bouncer then went over to the Manager, Nathan Doyle; he was followed by Mrs Rota, who accused them or being racists and she gave evidence that "neither denied this was the case". The coach, at the same time, approached the bouncer and the Manager and accused them of being racist, and, he said, there was no denial. He said the whole team left together in "absolute disgust". 13The applicant said that he, his wife and the coach then went to another hotel in Manly and disclosed the events of the evening to the security people before entering. Those security officers "did not agree that I was drunk at all and said it must have been the way I looked". 14Mr Rota gave evidence that by 6.30pm he had had 3 or 4 middies or schooners of full strength beer and that that was not more than what he usually had when drinking. He gave evidence of a sporting injury to his toe some two weeks earlier when a ball had fallen on his toe and that he had a limp. He otherwise denied that his gait was unsteady or that he was drunk. Andrew Melville's evidence 15In his statement, Mr Melville said he recalled Mr Rota having a couple of beers; in evidence he said that meant four beers. He did not think Mr Rota was intoxicated 'like others in our party. He was not slurring his words and could hold a conversation". 16He agreed with Mr and Mrs Rota's account of being approached by the bouncer and being told to get out. In evidence, he said the Manager was in the office and not with the security guard when Mr Rota was told to get out. Mr Melville said that he called the bouncer racist because Mr Rota was not intoxicated so he came to the conclusion that it was because of his colour that he was asked to leave. 17Mr Melville was asked whether any others in their group were spoken to about their drinking and he said that they might have been as they were rowdy. 18Mr Melville made his statement 14 months after the events and from his recollection. He prepared it and Mrs Rota typed it. He gave evidence that Mrs Rota 'adjusted' the statement before he signed it to add that the security guards at the hotel in Manly they went to after the Sailing Club "said that they didn't agree" that they were drunk and "we were welcome to come in". He gave oral evidence, contrary to that part of his statement, that the bouncers let them in without saying anything. He was not challenged on that evidence. Jacqueline Rota's evidence 19Mrs Rota made a statement which was undated, however, she gave evidence that it was made in the week before 2 September 2011. She said that she was signed in by a member of the Sailing Club (who was also a member of the Rugby Club) at about 6.30pm and he was "very drunk and could not stand properly". While at the Sailing Club she witnessed many drunk people who were loud and slurring their words and had difficulty standing. She said that no other member of the Rugby Club was asked to leave. 20Her statement confirmed her husband's account of events that occurred at the Sailing Club. After leaving the Sailing Club they walked 5 minutes to a hotel and on arrival spoke to the Head of Security, Armstrong Hayes and told him that Mr Rota had been asked to leave as he was intoxicated. She stated "Mr Hayes said that he did not agree with the assessment". As indicated above, Mr Hayes statement was not in evidence and he did not give evidence. 21Mrs Rota stated that "as we were entering another security officer quipped 'that's not surprising, it's the way you look mate, they're racists around there'". 22When giving evidence, Mrs Rota said that nothing was said about her husband's race or dark skin when he was asked to leave and during her subsequent discussions with the Manager. Evidence of the Sailing Club Nathan Doyle 23Mr Doyle, the Customer Services Manager and manager on duty on 18 September 2010 made a statement and gave evidence. He stated that a little before 7pm he was approached by the security guard who told him that he had observed a patron walking to and from the toilets who, from his manner of walking, he believed was intoxicated and he was going to ask him to leave. He, Mr Doyle made an 'independent assessment' of Mr Rota's level of intoxication and approached the applicant with the security guard and told him of his assessment and that he was to finish his drink and leave. He stated that he observed that Mr Rota's eyes were bloodshot and that Mr Rota became aggressive and challenged the security guard to step outside. 24Then Mrs Rota became involved, said he was being asked to leave because of his skin. He, Mr Doyle said that had nothing to do with it, it was based on Mr Rota's level of intoxication. He and she then had an exchange; he said he would call the police and the Rotas then left. 25In evidence, he said that no-one else had come to his attention that night in relation to drinking, however, when patrons are sitting down it is hard to gauge. On this occasion, the security guard had seen Mr Rota walk to the bathroom. 26He said the security guard had worked one or two times before at the Sailing Club and that his assessments seemed fair. 27Mr Doyle said that the Sailing Club had a "diverse mix of different races and cultures employed" as well as a large Polynesian and Pacific Island community of whom many drank at the Sailing Club. 28In cross examination, he was asked questions about a letter written to the Board dated 28 October 2010 and signed by Mr Hazell, based on information provided by Mr Doyle. This letter confirmed that the security guard identified Mr Rota as intoxicated, pointed him out to Mr Doyle and made him aware that he was going to ask Mr Rota to leave the premises as he was intoxicated. The security guard had then approached Mr Rota at the table and asked him to leave. Mr Doyle ultimately agreed that as his conversation with Mr Hazell occurred closer in time to the events, than his statement, then it was more likely to be correct that the security guard alone asked Mr Rota to leave. 29He said that he did not ask the bar staff or Mr Rota how much he had had to drink. Matt Hazell 30Mr Hazell was not at work on the evening of 18 September and was told about the events by Mr Doyle. His letter to the Board referred to above was based on what Mr Doyle had told him. He said the security guard had not been 'inducted' into the workplace. He said that on weekends, generally two or three people each day are asked to leave because of alcohol consumption and on 18 September, two people were asked to leave. 31He gave evidence about the Sailing Club's workplace discrimination policy he instituted in 2008. He also gave evidence of the Club's obligations under the liquor legislation and that failure to abide by them can lead to fines, license restrictions and cancellation. The Sailing Club has had no warnings, fines or restrictions placed on its licence. He provided the Board with intoxication guidelines prepared by the NSW Office of Liquor, Gaming and Racing. Among other matters, those guidelines provided that a person is intoxicated if the person's speech, balance, co-ordination or behaviour is noticeably affected and it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor (s.5 Liquor Act 2007). Noticeable signs of intoxication are given and include being unsteady of one's feet, aggression and being argumentative. 32Further, the guidelines provide that under the liquor legislation licensees and staff are required to ensure the patrons do not become intoxicated and such persons are to be removed from the premises. If such a person is found on premises, a licensee may have committed an offence. Safe Corp Security evidence 33John Lohr, owner and Managing Director of Safe Corp Security gave evidence that between July and December 2010 he employed the security guard who was contracted to the Sailing Club and on duty on 18 September. That security guard was licensed and had completed a responsible service of alcohol certificate and a first aid course. Part of his duties was to look out for any persons who may have become intoxicated and, if in the club, contact the duty manager and, if that person confirms his assessment, ask them to leave. 34Mr Lohr gave evidence that he was aware that the Sailing Club had a workplace discrimination policy but was not aware that the security guard on duty on 18 September 2010 had not been 'inducted' as to the contents of that policy. 35The security guard had not been the subject of any other complaint and Mr Lohr was not aware of the complaint until contacted by the Sailing Club in early 2011. He gave evidence of his efforts to locate the security guard for these proceedings. Standard of Proof 36We adopt the comments of Deputy President Hennessy in JM and JN v QL and QM [2010] NSWADT 66 in respect to the standard of proof. It has often been said in the context of anti-discrimination complaints, that when determining whether an applicant has discharged this onus, the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 should be applied: Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. Recently, in Qantas Airways v Gama [2008] FCAFC 69 the Federal Court (Branson J at [139]) said that the application of 'the Briginshaw standard' is likely to lead a trier of facts into error: 37The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. 16 Although not bound by the rules of evidence, we consider this to be the correct approach. Section 140 of the Evidence Act 1995 states that: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. The relevant provisions 38Under s.7 of the Act, the applicant must prove that each of the Sailing Club and Safe Corp Security, firstly, treated him less favourably than in the same circumstances or circumstances which are not materially different, they treated a person of a different race. Secondly, that that treatment was on the ground of his race. Services 39In relation to Safe Corp Security, it is complained that its security guard discriminated against the applicant in the provision of goods or services. The Points of Claim do not specify whether discrimination is claimed on the basis that the security guard refused to provide the applicant with goods or with services or that he discriminated against the applicant on the terms on which he provided those goods or services. (see s.19) Nor does the Points of Claim or any submissions made seek to identify at all what goods or services were provided. As stated by Justice McHugh, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the casse and the issues which arise for determination (see Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J at 404-406). "Services" are defined in s.4 of the Act as follows: "services" includes: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 40The definition is inclusive and not exclusive and thus the absence of reference to security services is not sufficient to exclude them from its ambit. 41IW v City of Perth(1997) 191 CLR 1 considered a similar provision in the Equal Opportunity Act 1984 (WA), with each of the judges of the High Court finding that the term 'services' had a wide meaning. The issue in that case was whether a decision by a local council not to rezone premises for use as a 'drop in' centre for people with HIV/AIDS amounted to the Council discriminating against people with HIV/AIDS by refusing to provide services. 42Brennan CJ and McHugh J found that refusing planning approval was not providing services within the meaning of the Act. Dawson and Gaudron JJ and Gummow J held that it did fall within the definition of services but that the Council had not refused to provide the service to some of the appellants. Toohey and Kirby JJ dissented and found that the council was providing services within the meaning of the Act. 43In the course of their judgement, Brennan CJ and McHugh J noted that 'services' was defined in the Macquarie Dictionary to include 'an act of helpful activity'. Brennan CJ and McHugh J made reference to the Interpretation Act 1984 (WA) which required preference to be given to the construction of a written law that would promote the purpose or object underlying the law (s.18). 44A similar provision exists in the NSW Interpretation Act 1987 (s.33). The purpose or object of the NSW Act can be gleaned for its long title which is to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. (see Sydney Local Health Network v QY and QZ [2011] NSWCA 412 at [55]) 45In regard to matters of interpretation, in IW Brennan CJ and McHugh J stated: In applying s 18 of the Interpretation Act, however, it must be kept in mind that the Act, like many anti-discrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner[11]. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act. The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction[12]. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical"[13]. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act. 46The Tribunal has had regard to these principles. 47The Tribunal has also had regard to the finding in Commissioner of Police v Mohamed [2009] NSWCA 432 (per Basten JA, Spigelman CJ agreeing) There is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to a complainant or those on whose behalf he or she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community. Accordingly, there is no reason why members of a particular group of society from whom such services are withdrawn on the basis of a characteristic protected by human rights law, should not have a basis for complaint under appropriate legislation: [35]-[36]. 48In this case the applicant was not requesting any service from the security guard or complaining to that person. 49The Tribunal has no difficulty finding that the security guard was providing services to the Sailing Club. Those services are set out in Mr Lohr's evidence and include to be on the look-out for any person who may become intoxicated and to ensure that they are asked to leave the club, to stand at the entrance of the club to monitor people entering and leaving, to ensure that patrons are signed in, to check their age and perform general security functions within the Sailing Club. 50However, that was not the complaint made by the applicant and confirmed in his Points of Claim. For this Tribunal to consider and determine a complaint of discrimination in the provision of goods or services against the Sailing Club would be to fall into error by, at least, being procedurally unfair to the respondents who have had no notice of such a complaint. 51It may be the case that in performing these functions, patrons such as the applicant benefit from the presence of a security guard in that unsocial activity in the Club is controlled and contained. However, that does not mean that the security guard is providing a service to patrons to ensure that unsocial activity is limited. If that were the case, then to fall within the legislation, we would have to be satisfied that: The security guard provided the service of limiting unsocial activity to the applicant and He discriminated against the applicant by refusing to provide him with that service of limiting unsocial activity or In the terms and conditions on which the security guard provided him with the service of limiting unsocial activity. 52The act complained of, that is asking the applicant in leave, is not in dispute. In issue is the reason or one of the reasons for that act. One would be required to accept that in asking him to leave, the security guard was refusing him his, that is the security guard's services in the Club. Such an interpretation is 'unnatural or unreasonable.' Further, the process of interpretation becomes more difficult and unnatural when attempting to characterise the security guard's conduct as concerning terms and conditions. 53For these reasons, we find that the security guard was not providing services, within the meaning of the Act to the applicant on 18 September. 54It follows that the applicant has failed to prove his complaint against the security company. Registered Club 55The Sailing Club is a registered club. Whether the act complained of is unlawful, will depend on firstly, whether the applicant was a member of the Sailing Club and then on the characterisation of the actions taken by the Sailing Club. Section 20A provides: (1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of race: (a) by refusing or failing to accept the person's application for membership, or (b) in the terms on which it is prepared to admit the person to membership. (2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race: (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, (b) by depriving the person of membership or varying the terms of the person's membership, or (c) by subjecting the person to any other detriment. 56The Points of Claim do not indicate whether the applicant relies on s.20A(1) or (2). There is no evidence before the Tribunal as to whether the applicant was a member of the Sailing Club. In her statement, her wife referred to having been 'signed in' by a member of the Sailing Club and the Rugby Club. However, there was no evidence from the applicant as to the circumstances in which he entered the Sailing Club, whether he was a member or whether he was 'signed in' by a member and if so, the effect of being 'signed in'. 57There is no evidence from which the Tribunal can infer that he was or was not a member. From Mrs Rota's evidence it appears that at least one of the Rugby Club members was also a member of the Sailing Club. 58If he was a member of the Sailing Club then his complaint would presumably be that he was subjected a detriment by being asked to leave, although as stated above, the Points of Claim do not indicate the basis of his claim and no submissions were made on this issue. 59If he was not a member of the Sailing Club, then his complaint can only be that he was discriminated against on the basis of an application for or in the terms membership was offered. There is no evidence which supports such a claim. 60The Tribunal dismisses the complaint against the Sailing Club on the basis that the applicant has failed to prove membership of the Sailing Club. 61Given these findings it is strictly unnecessary to consider whether we are satisfied that the applicant was treated less favourably on the grounds of race within the meaning of s.7 of the Act. However, if we are wrong in respect of either or both of our findings in relation to the complaints, we will proceed to make findings in respect to the s.7. Less favourable treatment on the grounds of race 62The Tribunal accepts the evidence of the applicant, his wife and the oral evidence of the Sailing Club's Managers that it was the security guard alone who asked Mr Rota to leave. Mr Doyle was not present at that time, although he had subsequent discussions with Mrs Rota, whether in his office or nearby. 63Mr and Mrs Rota each gave evidence that some or all of the other members of the Rugby Club were drunk and that none were asked to leave or cautioned as to their drinking. The applicant submitted that, as persons of a different race, they are to be compared with the treatment received by the applicant for the purposes of s.7. 64The Manager gave evidence that two people were asked to leave the Sailing Club because of intoxication, however, did not identify whether or not the other person was a member of the Rugby team. Mr Melville thought that some members of the team were likely to have been spoken to because of their rowdiness. 65The respondents submitted that the only reliable evidence was that two people had been asked to leave on that evening. Mr Melville's evidence should not be accepted because first, he had had eight schooners and secondly, Mrs Rota had altered his statement in relation to the events at the hotel in Manly. 66The Tribunal is satisfied that the applicant was treated differently from other members of the Rugby team. It accepts the evidence that at least some of team had been present for some 7 hours, were observed by Mr and Mrs Rota and by the coach as being intoxicated and that none or one only were asked to leave the Sailing Club. 67The issue which then arises is whether Mr Rota was treated less favourably on the ground of race. 68There is no direct evidence that his race was one of the reasons for being asked to leave. No words were spoken by the Sailing Club that involved racial language. However, it is the case that infrequently is the discrimination that overt. The question then is to what extent the Tribunal can and should infer that race was one of the reasons. 69The Tribunal has had regard to the comments made in Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 revised - 27-Nov-2002 In Sharma v Legal Aid Queensland [2002] FCAFC 196 the Court noted at para 40 that "[i]t was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw . . .". The Court then said that Racial discrimination is a serious matter which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319,331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature". 51 It is, with respect, unclear whether the Court agreed or not with that comment. .... Reliance on inference 66 If and when less favourable treatment is established, an applicant must show a causal link between that treatment and their race . If there is no direct evidence then an applicant must rely on inference. It is useful to bring together the current approach to drawing inferences in discrimination matters. 67 Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an inquiry or hearing; in The Liberal Promise at p182, Thornton says that "[u]nless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit . . . ". It has been observed that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves . . . The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London, 1997 at p34) 68 Similarly Justice Hill in Paramasivam v Wheller at paragraph 20 said: there will be many cases . . . where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where the discrimination may be able to be inferred from a course of conduct. . . 69 Most recently, the Tribunal in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 said at paras 121 - 127 There is no direct evidence before the Tribunal that these decisions of the Club were based on the applicant's race or sex or both. The applicant's case is based on circumstantial evidence. This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. " The Tribunal recognises the difficulty faced by an applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the applicant was on the ground of the applicant's race or gender. In cases where there is no direct evidence of the discrimination, the applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R. 70 The exercise of drawing inferences was discussed in detail by this Tribunal, differently constituted, in Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT, in A v B [1997] NSWEOT, and in Edwards. The authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences: i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts ii. an inference must be reasonably drawn on the basis of the primary facts iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof v. it is not enough that the inference is a mere possibility: it must be one of "probable connection" vi. the inference must be a logical one, and not supposition vii. an inference cannot be made where more probable and innocent explanations are available on the evidence. 70When relying on inference an applicant must identify the evidence on which the inference can reasonably be based. 74 This difficulty for an applicant has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11 . . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the respondents, and be difficult for complainants to elicit in any credible form. 81 In Sharma v Legal Aid Queensland at first instance ([2001] FCA 1699 at para 63), Kiefel J considered, and rejected in the circumstances, the possibility of evidence of systemic racism for inferring that race was a ground for conduct: The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with [a fact of the case]. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making. 71The applicant submitted that there was no other satisfactory explanation for being asked to leave other than his race. It was submitted that it should be accepted that he was not drunk, that he had had only four beers, that Mr Doyle's assessment was made from a distance and without a discussion with Mr Rota and that there was no reliable evidence as to his gait given that there was no account from the bouncer. 72Counsel for the respondents submitted that Mr Doyle's evidence of the applicant's bloodshot eyes and the increased level of aggression, which was supported by the applicant asking the bouncer to come outside should be accepted. The bouncer had a requisite responsible service of alcohol certificate to enable him to assess patrons. It was submitted that the Tribunal should accept that a third grade rugby end of season drinks would not be attended by 'teetotalers' and that the fact that the Rota's did not wait for the Police to arrive indicated that Mr Rota was intoxicated. 73Counsel for the respondents submitted that there was no 'cogent' evidence of race discrimination. 74The Tribunal is not satisfied that it is probable that one of the reasons he was asked to leave was his race. The evidence that a number of other people at the Sailing Club were more intoxicated than he is relevant to whether he was treated less favourably but does not support that he was not intoxicated. While the Tribunal has no evidence from the bouncer, the applicant's evidence is that the bouncer relied initially on the way in which he walked. The applicant said he was limping from a sporting injury. Thus there was some basis for the actions of the bouncer in telling him not to drink anymore. The apparent acceptance by him and his wife that he was not to drink anymore rather than challenging the bouncer that such a direction was not necessary does not support an inference that he was not intoxicated. 75The Tribunal is not satisfied that one of the reasons Mr Rota was treated less favourably was on the ground of race. 76The applicant's complaints are dismissed. Minority decision of Non-Judicial Member J Newman 77This Tribunal Member was satisfied that it is probable that one of the reasons Mr Rota was asked to leave the Sailing Club was his race. 78Mr Rota's evidence that he was the only person of colour, and the only person visibly identifiable as Maori amongst the number of other people from Forest Rugby Club at the Sailing Club, all of whom had been at the Sailing Club for longer and were more intoxicated than he, is relevant to whether he was treated less favourably. I do not agree that this does not support that he was not intoxicated. Mr Rota does not deny that he had consumed alcohol during his time at the Sailing Club. Mr Rota asserts in his evidence, and in his initiating complaint lodged at the ADB on 27 September 2010, that "I am a 37 year old New Zealand Maori. Every other member of my Rugby team is white and despite being clearly drunk, not [sic] one else was asked to leave or even cautioned." Having had the benefit of meeting Mr Rota in the Hearing, his appearance confirms to this Tribunal Member the gravity of the element of race in his experience of being refused service at the Sailing Club. 79Gaze (2005, citing Delgado in McRae et al 2003) argues "that since racism is a normalised part of (American) society, it is only 'extreme and shocking' instances of racism that are recognised as such by the law" (p.14). Gaze says "The aim of racial discrimination law must be remedial ... The enactment of a similar provision [to s 54A(2) of the Race Relations Act 1976 (UK)] in Australia would stop the onus and standard of proof from being used against complainants as they are now ... acknowledge[ing] the difficulties of proof for complainants who are in a position where they do not have the evidence to make out a case. ... Courts have still not made it clear how the connection with race can ever be proved in the absence of an admission by a respondent." (p.15) 80In her evidence, Mrs Rota confirms that it was she who made the first assertion of racism, and who cited Mr Rota's colour and race as reasons for him being directed to leave the Sailing Club. In his statement, Mr Doyle says "No reference was ever made either expressly or impliedly by either Chris or myself as to Mr. Rota's race". Mr Rota agreed that at no stage was there any explicit reference to skin colour or being Maori. But this should not be surprising, nor should the absence of direct references be inferred to prove that Mr Rota's race was not one reason for him being treated differently to others in his Rugby Team that night. Paragraph 69 of the majority decision in this matter comments thus: "The Tribunal has had regard to the comments made in Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 revised - 27-Nov-2002 ... 67 Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an inquiry or hearing; in The Liberal Promise at p182, Thornton says that "[u]nless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit ... ". (emphasis added) and In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11 ... racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the respondents, and be difficult for complainants to elicit in any credible form. 81This Tribunal Member is mindful of the response made by the applicant in his complaint, to the question "What would you like to happen to sort out this complaint?". Mr Rota says "I would like to ensure these people are penalised for what they have done. They have humiliated me and my wife and I want to ensure that they do not do it to anyone else." 82This expression of Mr Rota's experience and effect of racism is not so clearly articulated as that seen more recently in Tupou v Scruffy Murphy's Pty Ltd & Ors [2007] NSWADT 192 (23 August 2007), where Mr Tupou clearly asserts his hurt and distress in his initiating claim to the Board: 'I am sick of being looked upon like a threat because of my nationality and spoken to like I am stupid and dumb.' Whilst the behavior complained of in this case was overtly racist, with that Tribunal having the benefit of evidence that was not inferential or circumstantial, the impact of experiences of racism are common between these and other cases, highlighting the shortcoming of racial discrimination legislation described by Gaze, where "[courts] insist that the complainant must prove that racism affected them, but are reluctant to draw inferences from what evidence can be provided." (Gaze 2005 p.15) 83While the Tribunal had no evidence from the bouncer, the applicant's evidence is that the bouncer relied initially on the way Mr Rota walked to indicate his intoxication. In his evidence to the Tribunal, the applicant said he was limping from a sporting injury. Whilst this confirms the bouncer's reason for his initial assessment of Mr Rota being intoxicated, there is no evidence that attempts were made to elicit any information from Mr Rota or others in his party to explain his unsteady gait, nor to determine the length of time he had been drinking in the Club, or number of drinks consumed by Mr Rota as described in the NSW Office of Liquor, Gaming and Racing Intoxication guidelines provided both as Annexure B to the affidavit of Mr Doyle and attached to Mr Hazell's letter to the Board dated October 28, 2010. 84This Tribunal Member does not agree that "the apparent acceptance by Mr Rota and his wife that he was not to drink anymore rather than challenging the bouncer that such a direction was not necessary does not support an inference that he was not intoxicated." In her evidence, Mrs Rota stated that Mr Rota complied with the bouncer's instruction to him to not drink any more because he did not want to argue with the bouncer. This Tribunal Member infers Mr Rota's response to the bouncer's instruction to be self-preservative, in that he sought to avoid further attention from the Security guard in order to continue to participate in his Rugby Club's end-of-season event. 85This Tribunal Member does not agree that the departure of Mr and Mrs Rota and Mr Melville from the Sailing Club before the Police arrived indicates that Mr Rota was intoxicated as indicated by the bouncer. Whilst Mr Doyle told the Tribunal that, in his experience, calling the Police "is enough to make people aware of the need to leave", both Mrs Rota and Mr Melville, in their statements, record that they left the Sailing Club "in disgust". It is not possible for Mr Doyle or the Tribunal to know what reasons caused Mr and Mrs Rota and Mr Melville to leave the Sailing Club that night, except for those reasons tendered by them in evidence. Just as Einfeld J notes that "evidence of discrimination will often be solely in the hands or minds of the respondents" so too will evidence of experience of discrimination often be solely in the hands or minds of the complainant. Gaze (2005) reminds us that, "The inability of those in privileged groups to see their own privilege can make it very difficult for them to recognise disadvantage as something distinct from their own experience." (p.3), and it is this principle that underpins the directions given in the Intoxication Guidelines to "Talk to the person and their friends to help determine whether the person is intoxicated", and that "You should be sure of your reasons for refusal of service and these reasons should not be discriminatory". 86Mr Melville, one of the non-Maori members of the Rugby team, elected to leave the Sailing Club with Mr and Mrs Rota. Although he had been at the Sailing Club for much longer, had consumed more alcohol and was, in his own words, "a bit rowdy", refusal of service due to intoxication played no part in Mr Melville's exit from the Club. In bringing his complaint, Mr Rota sought validation and apology for his, and his wife's, experience of humiliation, with a view to this indirect discrimination not being visited upon others patronising the Sailing Club. This sense of affront to dignity and self-respect is reflected in Mr Melville's decision to leave the Sailing Club. 87This Tribunal Member was satisfied that one of the reasons Mr Rota was treated less favourably was on the ground of race. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2012