Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kelly and Ors v Tamworth Regional Council [2013] NSWADT 107 Hearing dates: 19 February 2013 Decision date: 16 May 2013 Before: Deputy President D Patten J McClelland, Non-judicial Member M Nasir, Non-judicial Member Decision: 1. Application dismissed. 2. No order as to costs. Catchwords: Discrimination on ground of race - whether Council providing a service - no discrimination proved Legislation Cited: Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Cases Cited: Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 IW v The City of Perth and others [1996-1997] 191 CLR 1 Robinson v Commissioner of Police [2012] FCA 770 Waters and others v Public Transport Corporation [1991-1992] 173 CLR 349 Category: Principal judgment Parties: Thelma Kelly (First Applicant) Leonard McKenzie (Second Applicant) Dallas Kelly (Third Applicant) Dawson Kelly (Fourth Applicant) Paul Kelly (Fifth Applicant) Kenneth Ahoy (Sixth Applicant) Tamworth Regional Council (Respondent) Representation: Counsel Ms N Sharp (Respondent) Mr S Dauvunau (agent) for Applicants Everingham Solomons (Respondent) File Number(s): 121010 reasons for decision 1This matter arises out of a complaint made by Ms Thelma Kelly to the President of the Anti-Discrimination Board against Tamworth Regional Council (the Council). 2The complaint was made on behalf of members of the Gumbangerri Sunrise Band. It is alleged that on both 20 and 21 January 2011 during a music festival at Tamworth, the Council discriminated against the Band in the provision of goods and services on the ground of race. 3The members of the band who include Ms Kelly and who may be regarded as the applicants in the case are Australian Aborigines. The President of the Board was unable to resolve the complaint and it was referred to this Tribunal for hearing. 4When the case was called on for hearing before us at Tamworth, Ms Kelly sought leave for the applicants to be represented by Mr Savenaca Dauvunau. Ms N Sharp of counsel, who appeared for the respondent, submitted that Mr Dauvunau, having no interest in the proceedings and no apparently relevant qualification, should not be given leave to appear and that instead Ms Kelly should represent the applicants. In the result however we were persuaded, correctly it turned out, that Mr Dauvunau might be able to provide useful assistance to the Tribunal and we gave him leave to appear. 5Admitted into evidence as Exhibits A and B respectively were Ms Kelly's Statutory Declaration dated 16 November 2012 and her Statement of Facts to the Anti-Discrimination Board. The Statement of Facts read: Every year, Gumbangerri Sunrise Band attends the Country Music Festival in Tamworth. On the 20.1.11 the band were busking in front of the Delicious Noodles Shop, from 6.30pm Thursday evening. The band was registered with the Tamworth Regional Council to busk on the streets for the big event. Every year for the Country Music Festival Tamworth Regional Council provides environmental worker or rangers to monitor sound of the buskers if they were too loud with the music. On the Thursday evening of the above date I notice that a co (sic Council) worker, who was a woman monitoring Gumbangerri Sunrise Band, as they finished singing and playing she approached the band and told the boys they were loud and could they turn the music instruments down, the level of sound needed to be under 80 or 80. Gumbangerri Sunrise Band members turn their music down. Tamworth Regional Council co-worker went to monitor the band again, so as a member of the band I had approached her standing in the crowd and I asked her could I stand with her to monitor the band and she said Yes. I had a conversation with her about the buskers across the road from Gumbangerri Sunrise Band and a sponsor event, Toyota, just down the road with their music and huge speakers and telling her that they were very loud and they are drowning Gumbangerri Sunrise Band. You really couldn't hear our music. So she monitored our band and she said we were still over and our music was still loud so she said told the band to turn the music down again. So they did and the band couldn't turn it down or otherwise you wouldn't hear them singing or playing at all. I said to her we're not the only busker here on the street, are you going to monitor the buskers across from Gumbangerri Sunrise Band and the sponsor Toyota event down the road who their music were very loud due to the big speakers, and she said Yes but I cannot hear them, they are not loud and I said you gotta be kidding me. I've got good hearing and they are loud. I even had people coming up to me saying they were loud and they couldn't hear Gumbangerri Sunrise Band. I had a nice gentleman saying to me as he overheard the conversation between me and the co-worker lady, who had no name tag or never gave her name, said because of the buskers across the road and Toyota sponsor event down the road were loud, their music, it was clashing with our band and it's making our band sound loud, it means sound travels and clashing with our music and therefore, Gumbangerri Sunrise Band wouldn't get a fair reading on the ranger monitor. I asked her could she monitor the buskers across the road and the Toyota sponsor event, and she said Yes. So she monitored the two and never approached the buskers and sponsor event. Then she came back towards Gumbangerri Sunrise Band and monitor them again. Then when they were finished entertaining people, the co-worker lady approached the band and said we are still too loud, they gave up, and told her they couldn't turn it down. I had approached her and asked what was the problem and she said Gumbangerri Sunrise Band are still too loud. And I asked after pulling her aside, would you be able to tell me the reading of the buskers across the road and Toyota sponsor event and she said to the fact that they were loud and monitor reading showed they were 87 which means they were pretty loud and she said that she never had the authority to tell the busker across the road and sponsor event to turn their music down. She had to wait for the advisor who had the authority. I said to her can't you see what you're doing and she said No. I said Gumbangerri Sunrise Band is being discriminated, we are not being treated equal so, co-worker lady walked away and then returned hour and half or two hours later with Advisor Brendan Woods, Environment Health Officer. But nothing was said until the next night. On the 21.1.11 Friday evening we were approached by Brendan Woods, Environmental Health Officer who works for Tamworth Regional Council. He was talking to the band member from Gumbangerri Sunrise about the incident Thursday evening and he even said the band was too loud. So I approached Brendan Woods and asked for his name and he gave me his name and his card. I asked him is there any problem, and we tried to tell him what happened on Thursday evening, he wouldn't listen and he turned to me and asked for my name. And I had nothing to hide so I gave Brendan my name so he called me a racist, and I told him I'm not racist, how could I be racist, my mother father is white and my sister-in-law is white, so how could I be racist. I even said to him that at the age 5 year I've been coming to Tamworth Country Music Festival for over 31 years. Then Brendan Woods said in an arrogant voice I will shut the Gumbangerri Sunrise Band down and you will not come back for another 31 years. He said, Thelma my co-worker has UNE degree and had attended TAFE and other certificates up her sleeve. I said what's that got to do with how we've been treated? Brendan Wood wouldn't listen to us, or the people that approached him that night, who was an Aboriginal Elder (lady who walked away in disgust). 6Ms Kelly's Statutory Declaration relevantly read: As a Band Group we didn't act superior over other buskers at the Country Music Festival 2011 at Tamworth. As an Aboriginal Band we just wanted to be treated as equal and treated fairly, instead we were humiliated and looked down upon by Tamworth Regional Council Environmental Health Workers. They describe myself and band members as violent, aggressive and uneducated. Therefore Gumbangerri Sunrise Band was treated unfairly and unequal. Tamworth Regional Council Environmental Health Workers had taken the enjoyment away from us. It was a festival, Tamworth Country Music that our family and band members used to look forward to every year in January. It was their actions. 7Ms Kelly gave oral evidence and was cross-examined by Ms Sharp. She said that she has been associated with the band for 30 years as a singer and more recently, as its manager. On 20 January 2011 her band, according to her evidence, reduced the volume of its sound twice. She believed that the band was being treated unfairly compared to other bands in the vicinity and attributed that unfairness to their aboriginality, they being the only aboriginal band in the area. 8She denied hearing Council Officer Mr Brendan Woods use the words "goodness gracious" at the conclusion of a conversation with her. 9In cross-examination she told Ms Sharp that on 21 January the band performed in Peel Street at the same location as the previous night. As we understand her evidence on both this night and the previous night there were two other bands in the vicinity, namely one on the other side of Peel Street and what she described as a "Sponsored Band" on a stage some short distance away. 10She agreed that on 20 January her band was directed on 3 occasions to reduce its sound volume. She also agreed that the Council Officer took sound readings on an instrument and had no objection to her seeing them and that when she asked the officer whether she was going to tell the other bands to reduce their sound level she received an affirmative answer. Ms Sharp put to her that the officer then walked towards the other bands and upon returning said that she did not intend to take further action and that none of the bands needed to reduce their noise level. Ms Kelly denied this conversation and claimed that the officer said that the other bands were too loud but that her band was louder. She agreed that in any event her band kept playing and did not take further steps to reduce its volume level - "it was already very low". She denied that she accused the Council Officer of being a racist. 11In relation to the events of 21 January, Ms Kelly denied that Mr Woods said "we need to be fair to everyone" and she denied that he accused her of abusing Council staff. She said that she did not shout while speaking to Mr Woods but that at the conclusion of their conversation he said to her "Thelma you are racist". She denied that what he said as he turned away was "Goodness Gracious". 12Two other witnesses were called in the applicant's case, Mr Dawson Kelly and Mr Leonard McKenzie. 13Mr Kelly, according to one of his three statements dated 18 January 2012 (part of Ex C) was the Gumbangerri Sunrise Band's lead guitarist and singer. He was playing in the band on 20 January 2011 and witnessed but apparently did not hear Ms Kelly's conversations with the female Council Officer, Ms Stephanie Stratigos. According to the statement, the band turned its volume down twice to a level where "it was only one or two notches away where we couldn't hear any singing or music and the people who was listening to the band had moved up to the kerb and still couldn't hear the band playing or singing". 14In oral evidence, Mr Kelly said that the band's noise level was reduced three times but only slightly on the last occasion. He agreed with Ms Sharp in cross-examination that he only mentioned turning the sound down twice in his statement. 15He denied that Ms Stratigos said in effect that as all three bands were playing too loudly she would not interfere. He also agreed that the band kept playing on the night up to the expiration of the time limit. 16As to the events of the evening of January 21, Mr Kelly in another of his statements said that he had a conversation with Mr Brendan Woods, who complained that the band was too loud. He reduced the noise level in response to this complaint. 17He stated that during a conversation on 21 January, Mr Woods called his sister Thelma Kelly a racist. He concluded his statement dealing with the events of January 21: An elderly Aboriginal woman came over to Brendan Woods upset and asked him just to let the band play. He told her that it had nothing to do with her and to piss off which made me feel very low, discriminated and humiliated, plus our reputation was tarnished. By calling a person a racist likes of (sic) Thelma Kelly who is a part of the Gumbangerri Sunrise Band is calling the Band a racist. 18In cross-examination about the events of 21 January, Mr Kelly said that he overheard Mr Woods threaten his sister that the band might be shut down and that he heard her called a racist. He denied seeing his sister's statement before making his own and he denied speaking to his sister about their statements. He agreed that he made no notes of any conversation. 19Mr McKenzie, another member of the band where he performed as singer, also participated with the band in the music festival at Tamworth on 20 January 2011. His statement dated 16 November 2012 said that the band was told twice by Ms Stratigos to reduce its noise level and complied each time. He said that the sound was turned down to such an extent that onlookers had to approach very close in order to hear anything. 20As to the events of 21 January, Mr McKenzie said in his statement (part of Ex D) that Mr Woods approached the band and spoke about the conversations the previous night. He also complained that the band was continuing to create excessive noise. He said that during the conversation Mr Woods accused Ms Thelma Kelly of being a racist and threatened that the band would not be permitted to return to play in the Tamworth Music Festival. 21In oral evidence Mr McKenzie said that on 20 January the band was told 3 times to reduce its noise level and complied every time. He said he did not hear Ms Stratigos say "never mind play on everyone is loud". 22As to his reaction on 20 January to being asked to turn the sound down, he said that the first time he accepted that the band was being asked to comply with the regulations to which he had no objection. The second time he said he thought the request was unfair as the band was being asked to reduce its sound level to such an extent that it would not be heard. 23He denied to Ms Sharp that he discussed the evidence he intended to give with Ms Kelly. When Ms Sharp suggested that the band was not required to reduce its sound level a third time, he replied "can't say one way or another". 24Other evidence in the applicant's case established that the applicants' band has been in existence for very many years and is highly regarded and respected in the community. 25The respondent relied on the evidence of Ms Stratigos, Mr Woods and Mr Kenneth Reid. 26Ms Stratigos, as appears from her affidavit sworn 14 January 2013, has tertiary qualifications in science and environmental health and commenced employment with the respondent as an Environmental Health Officer on 30 November 2011. For the Tamworth Country Music Festival between 14 and 23 January 2011 her responsibilities included the monitoring of noise levels of buskers in Peel Street, the main street of Tamworth. She said that condition 9 of the Busking Registration Form required buskers not to perform at a level exceeding 80 decibels and if she encountered buskers exceeding that level, it was her duty to require compliance with the condition. 27Ms Stratigos gave her version of the events of 20 January in her affidavit as follows: 5. Shortly before 8pm on Thursday, 20 January 2011, I was on duty by myself in Peel Street. Amongst other things, I was measuring the noise levels of buskers. I had a sound level meter. The first band I came to was called the "Gumbangerri Sunrise Band" or the "Sunrise Band" and they were located in front of the shop called "Delicious Noodles". The band had a reasonable audience, perhaps 15 people. The band sounded loud to me. I measured their sound level. The reading was over 80 decibels. I waited for the band to stop playing and then I approached a guitar player, whose name I do not know. I showed him my Council identification card and said to him words to the effect: "my name is Stephanie and I am an Environmental Health Officer with the Council. Your sound level was a bit high. Could you please turn it down and I will measure it again". He looked at me but said nothing and gave no other response to what I had asked of him. The band started to play again. 6. I walked back to the middle of the street and measured the sound level of the "Sunrise Band" as they played their next song. The sound level was again above 80 decibels. I waited for the band to finish the next set of songs and approached the members again. 7. As I was attempting to gain the attention of a band member, a lady, who I now know to be Thelma Kelly approached me from the crowd. Mrs Kelly said to me: "is the band too loud?" I replied: "yes". Mrs Kelly then made a sign to the band to turn the sound level down. I did not see any member of the band react in any way and they started to play again. 8. Mrs Kelly then said to me: "can I watch you measure the sound level?" I said: "yes". I returned to the middle of Peel Street in front of the band. Mrs Kelly accompanied me. I measured the sound level of the band. I showed Mrs Kelly the reading. It was over 80 decibels. 9. When I showed Mrs Kelly the reading she said to me: "are you going to tell the white band to turn it down?" I said: "of course, but this is the first band I came across. After I ask the band to turn it down I will continue to check other buskers' sound levels in the street". Mrs Kelly said: "I will watch you measure the other bands sound levels". I said: "yes, that's alright". 10. I then walked a little way down the street to the next band. Mrs Kelly came with me. I measured the noise level of the next band. The reading was over 80 decibels. Mrs Kelly saw the reading. She said to me: "are you going to tell them to turn it down?" I said: "yes, when they finish playing their set of songs". Mrs Kelly said to me: "why aren't you going to tell the white band to turn it down. You're racist". I said: "I waited for your band to stop playing their set of songs before I asked them to turn it down and I am going to do the same with this band". Mrs Kelly said: "you told us to turn it down why don't you tell the white band to turn it down?" I said: "I merely came across your band first, and as a starting point, I asked them to turn it down and I have now moved on to the next band". She said: "this is racist for not telling the white band to turn it down and only asking the Aboriginal band to turn it down". I said: "I needed to start somewhere in the street and your band was the first band I came across in this section. We tell people all along the entire street to turn it down". Mrs Kelly said: "this is racist". She then returned to the Sunrise Band. 11. I then measured the volume of the sound from a major event that was being conducted. The sound from that event was also over 80 decibels. I was not authorised to limit the sound levels generated by a major event. As the sound level of the major event performers was too high, I thought it inappropriate of me to regulate the buskers. 12. I walked back to Mrs Kelly. I said to her: "As all the bands are too loud, you can keep going at the level that you are at. I don't expect anyone to turn the volume down". Mrs Kelly said: "You are being racist and picking on this band because they are Aboriginal". I said: "I do not have the authority to tell the stage to turn their speakers down as they are not buskers so I don't expect anybody to turn it down including your band". Mrs Kelly again said: "you are racist". I said: "my co worker is starting soon and I will talk to him about the situation before I do anything more. I do not expect anybody to turn their sound down at the moment". At this stage, the band had stopped playing and were looking at Mrs Kelly and me. I signalled the band to keep playing and they started their next song. 13. Mrs Kelly said: "It is a bit loud. Come over here away a bit from the band". We moved away a few metres. Mrs Kelly again said: "You are a racist". I said: "Ms, please stop talking over the top of me. I am no longer asking anyone including your band to turn the music down". 28The evidence of Ms Stratigos was largely unchallenged in cross-examination by Mr Dauvunau nor did he give her the opportunity to respond to the versions of events given in the applicants' case. 29Mr Woods, whose affidavit sworn 10 January 2013 testified that he has been employed by the respondent as its Environmental Health Officer for 8 years, referred to his part in the events of 20 January 2011 involving the applicants. 30The matter first came to his attention about 8/15pm on 20 January when Ms Stratigos telephoned him sounding distressed. He told her to return to the office and when she did she complained of being called a racist "because I asked a band to turn their music down". 31He later accompanied Ms Stratigos to where the band was playing. He thought the noise exceeded 80 decibels but did not measure it. He made the same assessment of the only other band then playing in the vicinity. He said that in the circumstances as neither band was drowning the sound of the other, he decided to take no action. 32In relation to the evening of 21 January, Mr Woods' affidavit deposes: 5. On Friday 21 January 2011, I was on duty in Peel Street managing the sound levels of buskers amongst other things. At about 9pm I received a text message from Ross Briggs, the Council's Senior Environmental Health Officer asking me to check a band in the lower portion of Peel Street, between Brisbane and Bourke Street because other buskers in the area had complained about the level of noise of that band. 6. At about 9.15pm, I arrived at the location, to which I had been directed by Mr Briggs. It was immediately apparent to me, as I walked down the middle of Peel Street, that there were two bands that were louder than any other performers in the area. One of the bands was in front of PRD Real Estate's premises and other band was the Sunrise Band, which was in front of a shop called "Delicious Noodles". I used the sound level meter to measure the sound of the band in front of PRD Real Estate. The level exceeded 80 decibels. I approached a member of that band, showed him my Council identification card and said to him: "My name is Brendan Woods. I work for the Council. I do the sound management in the street. Your sound level is too high. It must be below 80 decibels. You will need to turn the volume down if you want to continue to perform. Can I ask you to turn the volume down". The member of the band to whom I spoke caused the volume to be lowered. 7. I then approached the Sunrise Band. I waited for the band to finish the song, which it was performing. I approached the male singer. I showed him my Council identification. I said: "My name is Brendan Woods and I work for the Council here. I do the sound management in the street. I have just asked the band across the road to turn their volume down which they have done. Would you mind reducing your volume as well so as to allow other performers in the area to be heard?" He said: "Yeah, we only turned it up because we couldn't be heard but we will turn it down now that they have. Thanks for getting them to turn it down." 33The affidavit proceeds to recount a somewhat acrimonious conversation between Mr Woods and Ms Thelma Kelly during which she repeatedly and loudly accused Mr Woods of discriminating against the applicants. Part of the conversation according to Mr Woods concerned the events of the previous evening: 9. Mrs Kelly then came closer to me. She said in a raised voice: "You are discriminating against us". I said: "The same rules apply to everyone. We have a very difficult job of trying to manage the volume of the buskers in all of Peel Street and we need everyone to cooperate with each other and the officers that do the work". She said: "That other officer last night told us to turn it down. She discriminated against us, she didn't tell anyone else to turn it down". I said: "The officer that asked the band to turn it down last night is a new officer and it is her first festival. It was her first night working and the first time she has had to monitor the sound on the street. She was very upset by your comments to her last night and you being abusive towards her. The Council will not tolerate abusive behaviour to staff and if you continue to breach the sound regulations you can have your busking permit revoked". She said: "We have been coming here for 30 years. We play here every year. You can't stop us from playing". I said: "I don't want to stop you from playing and it's great if you have been coming to the festivals for so long. If you have been coming for that long, you must realise that things have changed and we have to try and manage the sound so everyone can be heard". She said: "You just want to stop us playing because we are black". I said: "You are being ridiculous. I think that you are a good band but you must work in with everyone in the street. It has to be fair for everyone". 34 After referring to further conversation along similar lines, Mr Woods' affidavit said: 11. As I began to walk away, Mrs Kelly began shouting loudly: "This is discrimination against us. Discrimination". I said: "goodness gracious". She said: "I am not a racist". I said: "What? I did not say that. I said goodness gracious". Mrs Kelly became more agitated. I said to Mrs Kelly: "You are not being reasonable. You need to calm down. I am not going to continue this conversation because all you are doing is arguing with me. I think that it is best if I leave and continue to do my job". 35As with Ms Stratigos, Mr Dauvunau did not challenge Mr Woods in cross-examination to any significant extent, nor did he put to him the version of events given by witnesses in the applicants' case. However in the result in our view nothing turns on these matters. 36Mr Reid, who did not give oral evidence, is employed by the respondent as Manager, Environment and Health. He has been with the Council for about 22 years. Mr Reid deposed to the procedures employed by the Council in regulating buskers at the annual music festival. His affidavit contains these paragraphs: 18. Council's Environment and Health Officers are responsible for monitoring the noise emissions of buskers during the Festival. The noise emissions are monitored to preserve local amenity; so that local businesses are not unduly disturbed by the performances and so that all buskers have an equal opportunity to perform. 19. They do this by using a hand held sound level meter. They walk from one end of the main street to the other pausing at each band and measuring their level of sound. The meter itself records this noise emission and provides the reading to the officer holding the unit. 20. During the 2011 Festival, two environment and health officers were engaged from about 9 o'clock in the morning until 10pm at night during the Festival to walk the streets of the central business district of the city and monitor noise emissions from the buskers. They also checked on food safety requirements of vendors and other regulatory matters. 21. On any given day during the Festival, buskers, particularly bands which have amplification equipment, will be routinely monitored for noise emissions on many occasions. 22. During the Festival, in addition to the busking activities, there are occasionally staged events which are also held in the streets of the city. The Environment and Health Officers do not monitor these staged events as they are "controlled events", which are events arranged for a particular site or stage at a particular time. Such events include performances by paid named artists, or competition or promotional events. They are distinguishable from the busking, which takes place on the footpaths and are not subject to the same noise control. They do sometimes take place in venues in close proximity to the busking. 23. At any given Festival, I estimate that the Council receives approximately twenty complaints per day about noise levels from busking performers. These complaints are received from businesses trading in the central business district, from other buskers and from members of the public attending the Festival. 24. Council responds to these complaints by going to the location where the busker is performing to assess the situation using the noise meter. Generally, buskers are cooperative when they understand that a complaint has been made and most noise concerns can be managed through communication between the Environment and Health Officers and the buskers. This type of communication happens many times on every day of the Festival. 25. The communication between the Environment and Health Officers with a band which is exceeding the noise limit generally occurs as soon as the sound level meter indicates the sound has exceeded 80dbA. 26. If a busker is found to be exceeding the noise limit of 80dbA, the officer has a discretion in relation to how he or she responds to that information. It is generally a matter of common sense and judgement about what action is appropriate in the circumstances. 27. For example, if a busker is exceeding the noise limit but there is no other performer nearby then that busker may not be requested to turn down their amplification unless the noise level exceeds 80dbA to a significant degree. 28. On the other hand, if there are a number of buskers in the same area then the buskers would be asked to turn down their amplification equipment to be within the noise limit of 80dbA. 37In light of the view we have formed about the case, little turns on the conflict in the evidence between the applicants on the one hand and the witnesses for the Council on the other hand. We should say however that Mr Woods' version of events is apparently supported by his contemporaneous note (Exhibit 2) which refers to Ms Thelma Kelly as being "very argumentative and abusive" and to her complaining that the band was being discriminated against. 38We believe that all witnesses did their best to give truthful evidence and by this to assist the Tribunal. Nonetheless we accept that Ms Kelly was both argumentative and abusive, in our opinion very possibly as a result of previous unpleasant occurrences which rendered her hypersensitive to racial discrimination and quick to detect it when in truth none existed. 39Section 19 of the Anti-Discrimination Act 1977 (the AD Act) provides: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 40"Services" is defined in s 4 to mean: 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. 41In order to succeed in these proceedings therefore the applicants must prove on the balance of probabilities that the respondent was relevantly a provider of services and that in the terms on which it provided services to the applicants it discriminated against them on the grounds of their aboriginality. 42At the outset of her submissions, Ms Sharp contended that the respondent was not relevantly a provider of services to the applicants. She referred to Waters and others v Public Transport Corporation [1991-1992] 173 CLR 349, Robinson v Commissioner of Police [2012] FCA 770, IW v The City of Perth and others [1996-1997] 191 CLR 1 and Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308. 43It is at the outset important to identify the services which according to the applicants the Council was providing to the applicants. As McHugh J said in Waters: Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. 44In this case as it seems to us, the applicants' case is that the Council was providing a service in the form of a regulatory regime which operated to the benefit of all buskers including the applicants. 45IW v The City of Perth concerned the refusal by the City of Perth of an application for a planning approval. A majority of the Court (Dawson, Gaudron, Toohey, Gummow and Kirby JJ) held that the City of Perth was, in exercising a discretion as to whether or not to approve an application, performing a service to the appellant. 46In Contreras, this Tribunal held that the Commissioner of Corrective Services was performing services for the purposes of the AD Act in administering prisoners under his control. 47Waters, IW and Contreras in each of which it was held that the respondent was providing relevant services are in our opinion clearly distinguishable on the facts from the other case referred to us, Robinson v Commissioner of Police. In that case Yates J held that police officers were not providing services to the applicant within s 24 of the Disability Discrimination Act 1992 (Cth) when pursuing arresting and maintaining custody over him. 48In our view, the Council regulating buskers on the two occasions relevant to this case was providing services to the applicants, namely the service of ensuring that their band was fairly treated in relation to other bands and was able to play music comfortably audible to the audience it was able to attract. In the vernacular the Council was providing the service of a level playing field to the applicants and other buskers. 49Accordingly we hold against Ms Sharp that s 19 of the AD Act would apply in the event that the applicants established discrimination by the Council against them on the ground of their race in the terms upon which they provided the services which we have identified. 50As to whether there was discrimination, we accept that on the evening of 20 January the applicants were told by Ms Stratigos that their sound level exceeded 80 decibels and that it should be moderated. The evidence establishes that at least when first spoken to, the noise level produced by the applicants exceeded 80 decibels and therefore infringed one of the conditions of the Council's consent. In directing the applicants' attention to this, Ms Stratigos was doing no more than her duty. 51Although the same noise level condition applied to all buskers licensed by the Council, policing and enforcement of that condition by council officers, according to the evidence of Mr Woods and Mr Reid, involved an element of discretion. In other words, the fact that officers of the Council in the performance of their duties chose to notify some buskers and not others that their noise levels exceeded the consent condition, would not necessarily constitute discrimination. 52The evidence of Ms Kelly indicates that Ms Stratigos was at least paying attention to the band across the road from the applicants although she was not of course able to recount any conversation Ms Stratigos had with any of the other band members. The situation was complicated by the presence on a stage nearby of the "Sponsored Band" to which the 80 decibel sound limit presumably did not apply. 53Ms Stratigos seems to concede that she did not actually tell the other band to reduce its noise volume in light of the level of sound emanating from the Sponsored Band. Arguably this could constitute discrimination against the applicants although of course on Ms Stratigos' version of events any such discrimination was immediately (if not wholly in light of the applicants' compliance with her previous request) overcome by Ms Stratigos telling the applicants that in all the circumstances she no longer required them to moderate or further moderate their noise level. Although Ms Kelly did not accept this conversation, we believe Ms Stratigos' version of it, particularly in the absence of evidence that the applicants thereafter reduced their sound level. 54As the applicants had reduced their sound level upon Ms Stratigos' first request and as it appears that the other band was not at any time required to reduce its sound level, the applicants may well have had a legitimate sense of grievance. However in light of Ms Stratigos' explanation (which we accept) as to how this occurred, we do not believe it amounted to discrimination. 55But even if what happened did amount to discrimination, there is no evidence that it had anything to do with race. There is no evidence contrary to the testimony of Ms Stratigos that the applicants' band merely happened to be the first band she came upon. The applicants do not deny that at that time their noise level exceeded the relevant condition of their licence and cannot complain about Ms Stratigos drawing their attention to that circumstance. 56It also seems inherently unlikely that the applicants would be discriminated against on the grounds of their race in the music festival at Tamworth where they were well regarded and had been performing in festivals for over 30 years. 57So far we have focussed on the events of January 20. The evidence of what occurred on January 21 largely relates to an acrimonious conversation between Ms Kelly and Mr Woods. As indicated earlier, we accept that Ms Kelly spoke in a loud voice and was abusive. However even on the applicants' case there seems no arguable basis for alleging that any discrimination occurred on January 21. 58In our opinion the applicants have failed to prove a breach of s 19 of the AD Act and the application must be dismissed. Orders 1. Application dismissed. 2. No order as to costs. 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: 16 May 2013