Applicant 202024 v The Australian Capital Territory (represented by Access Canberra)

[2021] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 202024 v THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY ACCESS CANBERRA) (Discrimination) [2021] ACAT 14

DT 24/2020

Catchwords:               DISCRIMINATION – race – section 53A referral under the Human Rights Commission Act 2005 – direct discrimination – discrimination in the provision of goods, services and facilities – discrimination on the basis of race – cultural descent, ethnic and national origin, and nationality – unfavourable treatment – general presumption where evidence suggests the unfavourable treatment resulted from a protected attribute – whether registration of vehicles constitutes a good, service, or facility – inferences to be drawn from subjective, juxtaposed experiences – treatment may be unfavourable, but not discriminatory – absence of evidence that the unfavourable treatment occurred as a result of the applicants protected attribute – application dismissed

Legislation cited:        Discrimination Act 1991 ss 7, 8, 20

Human Rights Commission Act 2005 ss 40, 53CA, 53E, 78
Road Transport (Driver Licensing) Act 1999

Subordinate

Legislation cited:        Road Transport (Vehicle Registration) Regulation 2000 ss 28, 29, 30, 32

Road Transport (Access Canberra Customer Service) Delegation 2017 (No 1)

Cases cited:Briginshaw v Briginshaw (1938) 60 CLR 366

Cooley v Australian National University [2007] ACTDT 2
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35
IW v City of Perth [1997] HCA 30
Jones v Dunkel [1958] HCA 8
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Rainsford v Victoria [2007] FCA 1059
Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75
Waters v Public Transport Corporation [1991] HCA 49
WSOL & John James Memorial Hospital (Discrimination) [2011] ACAT 81

List of

Texts/Papers cited:     Linda Krieger, ‘The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Opportunity Employment’ (1995) 47 Stanford Law Review 1161

Charles Lawrence, ‘Unconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, the Ego, and Equal Protection”’ (2008) 40 Connecticut Law Review 931

Tribunal:Presidential Member H Robinson

Date of Orders:  26 February 2021

Date of Reasons for Decision:      26 February 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 24/2020

BETWEEN:

APPLICANT 202024

Applicant

AND:

THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY ACCESS CANBERRA)

Respondent

TRIBUNAL:Presidential Member H Robinson

DATE:26 February 2021

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Presidential Member H Robinson

REASONS FOR DECISION

1.On 3 May 2019 the applicant visited the Access Canberra Service Centre Gungahlin (the shopfront) with the intention of registering a car he had purchased. He left following an exchange with staff members, and without completing that transaction. The events of that day, and the applicant’s subsequent visit to the shopfront on 6 May 2019 were the subject of a complaint to the Australian Human Rights Commission (AHRC) and then the ACT Human Rights Commission (ACTHRC). That complaint was referred to the Tribunal on 25 May 2020 and became these proceedings, through which the applicant seeks remedies in respect of unlawful discrimination on the basis of race contrary to the Discrimination Act 1991 (Discrimination Act).

Brief procedural history

2.On 8 May 2019 the applicant lodged a discrimination complaint with the AHRC under the Racial Discrimination Act 1975 (Cth) alleging discrimination on the grounds of race/colour, ethic/national origin, immigrant status and racial hatred.

3.On 30 October 2019, the AHRC conducted a conciliation between the parties. The conciliation process was not successful, and on 21 November 2019, the AHRC terminated the complaint because it was satisfied that there is no reasonable prospect of the matter being settled by conciliation. The AHRC advised the applicant was entitled to commence proceedings in the Federal Circuit Court or the Federal Court within sixty days, but he did not do so.

4.Instead, on 9 December 2019, he emailed the ACTHRC seeking an “appeal” of the AHRC’s decision on 21 November 2019. He included with that email a copy of that letter, and his original complaint to the AHRC.

5.Although it is not entirely clear, it appears the ACTHRC decided to treat the complaint to the ACTHRC as a new complaint about an unlawful act pursuant to section 40(1)(c) of the Human Rights Commission Act 2005 (ACT).

6.On 29 April 2020 the ACTHRC closed the complaint pursuant to section 78(1)(f) of the HRC Act on the basis that conciliation was unlikely to succeed. It advised the applicant that he has sixty days to request the Commission to refer his complaint to this Tribunal. The applicant subsequently requested that they do this.

7.The HRC referred the complaint to the Tribunal on 25 May 2020.

8.The parties attended a mediation at the tribunal on 28 July 2020 and 20 August 2020, but an agreement was not reached. The matter proceeded to hearing on 6 October 2020. Following the conclusion of the hearing, the Tribunal reserved its decision.

9.Throughout the process, the applicant represented himself. The respondent was represented at the hearing by Mr S Onitiri of Counsel, instructed by Ms G Ho of the ACT Government Solicitor’s office.

10.The applicant filed a witness statement prepared by himself and a witness statement prepared by his wife. He also gave oral evidence and was cross examined at the hearing. He filed submissions dated 17 August 2020, attaching several documents including a submission to the ACTHRC. He also made oral submissions at the hearing.

11.The respondent filed witness statements from four employees:

(a)Ms ML, who dealt with the applicant at the counter.

(b)Mr CW, the manager of the shopfront.

(c)Ms JC, who is engaged as a concierge at the shopfront.

(d)Mr RF, an employee of Access Canberra who interrogated the relevant computer systems to provide a record of the applicant’s transactions with the respondent.

12.Ms ML, Mr CW and Ms JC gave oral evidence and were cross examined. The respondent also filed written submissions on 11 September 2020 and Mr Onitiri made oral submissions at the hearing.

13.The Tribunal also had before it documents filed by the ACTHRC produced pursuant to orders made under section 53DA of the HRC Act.

The applicant’s case

14.The applicant’s case varies slightly between the events in the complaint and subsequent letter to the AHRC, his submissions (which appear to have been prepared by a legal advisor)[1] and his oral evidence. The differences are mainly in relation to the detail, rather than the overall narrative, although one difference, as to whether the applicant’s skin colour was directly referred by Ms ML, is significant and will be considered further below.

[1] Applicant’s outline of particulars filed 18 August 2020

15.On 3 May 2019, the applicant and his friend, Mr RN, attended the shopfront to transfer the ownership of a motor vehicle the applicant had purchased in NSW into his name.

16.Upon arrival, the applicant and Mr RN presented the registration documents to a member of staff, Ms JC. Ms JC reviewed the applicant’s documents and informed him that as the receipt for purchase of the car was made out to both he and his wife, he would need her written consent to register the car solely into his own name. The applicant questioned this requirement, and then discussed it with Ms JC’s manager, Mr CW. A solution was identified, and the applicant made the relevant arrangements to have his wife email through her consent. The applicant and Mr RN were then directed to sit the waiting area before being called to a service counter by Ms ML. There was no misunderstanding or conflict between himself and the shopfront staff and he was not argumentative.

17.The applicant and Mr RN then attended Ms ML’s counter. The applicant placed his documentation on the counter, including the inspection certificate, a completed vehicle transfer registration form and the receipt for purchase of the car (the receipt).

18.The receipt was on top of the pile of documents presented to Ms ML. Notwithstanding this, Ms ML expressly asked for it.

19.The applicant was confused by Ms ML’s question because he had already given her the receipt, and because Ms JC and Mr CW had already “vetted and confirmed” the required documentation.[2]

[2] Statement of the applicant dated 17 August 2020 at [8]

20.He then said to Ms ML:[3]

[3] Statement of the applicant dated 17 August 2020 at [8]

what do you mean by receipt? I've given you all the documents, what receipt are you looking for?

She replied, in an “arrogant tone with raised eyebrows that looked demeaning”:

how do I know you did not steal this car?

The applicant was taken aback by the question. Mr RN replied:

was your question polite or necessary?

Ms ML then responded by looking at the applicant and saying:

he’s sitting in the chair like he’s better than me

The applicant was in shock and even more confused at this point, and asked Ms ML:

what do you mean?

Mr RN said:

that was unprofessional

Ms ML responded:

well, he’s black but I don't mean to be racist.

The applicant advised Ms ML that he wished to make a complaint to her supervisor. Ms ML scoffed and said even the applicant made a complaint, “no one would look at it”. It wouldn’t go anywhere, and the supervisor would not do anything about it.

21.Ms ML confirmed, again, that no one would look at the complaint when questioned by Mr RN.

22.The applicant felt shocked, confused and discriminated against by the interaction with Ms ML.

23.Ms ML then found the receipt she had asked for in the documents provided by the applicant and proceeded with the transaction, without apologising to the applicant. The applicant, however, decided not to proceed with the registration of his car. He felt uncomfortable with Ms ML processing the transaction because of the how she treated him, so he left.

24.The applicant says neither he nor Mr RN argued with Ms ML during this exchange.

25.Three days later, on 6 May 2019, the applicant visited the shopfront with the intention of speaking to Ms ML about the incident on 3 May 2019.

26.When the applicant spoke to Ms ML he politely asked what she had thought about her comments from 3 May 2019, to which Ms ML replied “boastfully”, “whatever I had said, had been said and nothing could be done about it”.[4]

[4] Statement of the applicant 17 August 2020 at [13]

27.The applicant then proceeded to enquire about making a complaint. Ms ML, again, told the applicant that even if he were to make a complaint, there was nothing that could be done.

28.The applicant told Ms ML that she would be hearing from his lawyer. Ms ML said “Lawyer, huh?” in a mocking way.[5]

[5] Statement of the applicant 17 August 2020 at [14]

29.The applicant attempted to make a complaint to Mr CW, but Mr CW dismissed the complaint and told the applicant they would talk about making a complaint later. Mr CW told the applicant that whatever Ms ML said “could be said to anyone” and that he did not see why the applicant was feeling that way.

30.The applicant advised Mr CW that he did not feel Ms ML should apologise at that time, as he did not feel Ms ML showed remorse and would be sincere. It is alleged that Mr CW replied by telling the applicant he was irrational and worthless.

The respondent’s position

31.The respondent’s position reflects that set out in its submissions, and in the evidence of its witnesses, Ms ML, Mr CW, Ms JC and Mr RF. There are minor inconsistencies between their chronologies, but nothing of any great significance.

32.Ms ML, Mr CW and Ms JC are employees of Access Canberra with delegated functions to decide applications for registration of a registrable vehicle, pursuant to section 32 of the Road Transport (Vehicle Registration) Regulation 2000 under the Table 6, Row 7 of the Road Transport (Access Canberra Customer Service) Delegation 2017 (No 1).

33.The applicant and Mr RN attended the shopfront on the afternoon of 3 May 2019. On a busy day, the shopfront can have in excess of 50 customers waiting at one time. 3 May 2019 was a busy day.

34.When the applicant attended the shopfront, he was met by Ms JC. Ms JC is engaged in the role of concierge staff. Her role is to briefly review documents of applicants to ensure that they have what they need to allow their application to be processed at the counter, thereby ensuring they do not wait unnecessarily. Concierge staff can triage customers, including directing customers directly to the counter instead of asking them to wait, and may do this when a customer presents as irritated.

35.Ms JC reviewed the applicant’s transaction documents and explained that, because the receipt provided as proof of purchase for the car was made out in the names of both the applicant and his wife, he would need to obtain signed written consent from his wife to register the car solely in his name.

36.Ms JC found the applicant “difficult to converse with” and stated that “right from the very beginning, [he] seemed quite agitated and quite cross with me”. The applicant appeared not to accept that his wife would be required to provide written consent, as he and his wife are married.

37.Ms JC then sought advice from Mr CW. Mr CW went to meet the applicant.

38.Mr CW’s role as manager included de-escalation. On any given day he will handle multiple escalated situations. Ms JC explained the situation with the applicant to Mr CW.

39.Mr CW’s evidence was that he “reasonably recall[ed]”[6] the event of 3 May 2020 and 6 May 2020, but he also kept file notes that were provided to the Tribunal.

[6] Statement of Mr CW dated 18 October 2020 at [18]

40.Mr CW spoke to the applicant, who pressed his objection to the “unnecessary documentation”. Eventually, however, the applicant agreed to get email consent from his wife, and he left to arrange it. Ms JC then told other customer service staff to take the applicant straight to the customer service desk when he returned to the shopfront.

41.Mr CW spoke to the applicant again when he returned. He described the applicant as “assertive and aggressive” but “not particularly loud and … quite well spoken.” He said that the applicant “came across …as defensive and unwilling to engage with me further about our processes in an open mind.” The conversation went on for about half an hour. He did not recall looking at the applicant’s documents at all.

42.The applicant and Mr RN were directed to a service counter attended by Ms ML.

43.On Ms ML’s evidence, the applicant put the Application to Transfer Vehicle Registration Form (the application form) on the counter but did not provide the receipt. Ms ML asked the applicant for the receipt for the car. The applicant refused to provide it. Ms ML repeated that she needed to see the receipt several times. Finally, the applicant then threw the receipt across the counter toward Ms ML.

44.Ms ML then checked the applicant’s documents. She noted that the purchase price stated on the applicant’s transfer form was $19,000, and the purchase price on the receipt was $35,000. It “occurred to [her] that [the applicant] may be looking for a discount on stamp duty”. She told him “that was not going to work for Access Canberra” and that she can “put it through, but it can get audited and I will get into trouble.”[7] She explained that it was necessary to match the purchase price on the receipt to the purchase price on the transfer form, as it was a legal issue.

[7] Statement of Ms ML dated 11 September 2020 at [13]

45.The applicant informed Ms ML that he would take the matter to Fair Trading. Ms ML replied that the complaint would not go anywhere because the documents were not in his favour and indicate the purchase price was $35,000.

46.The applicant asked Ms ML why he needed to provide a receipt when he had already provided it to concierge staff. He asked if he could take the receipt back. She said words to the effect of:

no, we need evidence that you have acquired the car legally, that you have paid for it. That was all I said…[8]

[8] Statement of Ms ML dated 11 September 2020 at [15]

47.The applicant then became irate and asked Ms ML “you think I stole the car?”. Ms ML apologised and explained:

No, sorry, that’s not what I meant. I just need the receipt to show you have acquired the car legally and so I can complete the transaction.[9]

[9] Statement of Ms ML dated 11 September 2020 at [17]

48.Ms ML offered an explanation to this effect several times.

49.The applicant shouted at Ms ML. Mr RN then stated words to the effect of:

how dare you make him feel like that. This is your workplace and you are supposed to be doing your job and help transfer the registration.[10]

[10] Statement of Ms ML dated 11 September 2020 at [19]

50.Mr RN told Ms ML that her conduct involved racial profiling. Ms ML apologised and said that she was sorry that her conduct was interpreted that way, but that is not what she meant.

51.Ms ML perceived the applicant and Mr RN as shouting at her and found their conduct threatening.

52.Ms ML then proceeded to process the paperwork. However, the applicant ripped the documents out of Ms ML’s hands and said he wished to make a complaint.

53.Ms ML advised the applicant that feedback left at the feedback kiosk would not go anywhere because it is used for statistics, not for making formal complaints. Ms ML encouraged the applicant to make a complaint via the Access Canberra website.

54.At this point, Mr CW became aware of the applicant’s interaction with Ms ML and had a further conversation with him. In his evidence to the Tribunal, he recalled that there was a discrepancy between the amount of the purchase on the receipt and that on the transfer form.

55.Mr CW denied saying that the applicant’s complaint was “irrational and worthless” and denied using those words in his “usual vocabulary.”[11]

[11] Statement of Mr CW dated 18 October 2020 at [33]

56.It is Mr CW’s standard practice to apologise, and he did. He gave the applicant a temporary registration pass that permitted him to drive the vehicle. The applicant left without completing the transaction.

57.Prior to leaving the shopfront, the applicant asked Ms ML about her behaviour. Ms ML explained that the way the applicant was standing over her was like he was better than her. She made this comment out of panic and shock, and it was an attempt to explain how the applicant and Mr RN had made her feel.

58.Ms ML denied that she said the following words, or words to this effect, to the applicant:

(a)How do I know you did not steal this car?

(b)Well he’s black but I don’t mean to be racist.

(c)The car was purchased with the proceeds of crime.

(d)The complaint is irrational and worthless.

59.Ms ML, Mr CW and Ms JC all denied acting in a rude, aggressive, mocking or demeaning way toward the applicant and Mr RN.

60.On 6 May 2019, the applicant visited the shopfront and requested to speak with Ms ML.

61.Mr CW spoke to the applicant and discussed the incident of 3 May 2019. The applicant stated he had not received an apology from the shopfront staff. Mr CW made an apology on behalf of the shopfront staff. The applicant asked if he would ask anyone about a car being stolen. Mr CW said words of the effect of “it’s a common response to customers who ask why we require a proof of purchase, irrespective of race, gender or creed.”[12] He thought the applicant accepted this explanation.

[12] Statement of Mr CW dated 18 October 2020 at [39]

62.Mr CW approached Ms ML while she was dealing with another customer and informed Ms ML that the applicant was seeking an apology from her. After she finished serving the other customer, Ms ML approached the applicant and Mr CW.

63.Ms ML started to make an apology, but before she could do so, the applicant told Ms ML and Mr CW that it was “too late for an apology… you will be hearing from my lawyer.”[13]

[13] Statement of Mr CW dated 18 October 2020 at [43]

64.Mr CW subsequently made a detailed file note of the incidents on 3 and 6 May 2019.

65.Ms ML maintains that she was happy to apologise to the applicant on 3 May 2019 and she “would apologise more if [she] could.”[14]

[14] Statement of Ms ML dated 11 September 2020 at [37]

66.While the applicant did not register a vehicle on 3 or 6 May 2019, he has registered many since. The evidence of Mr RF, at Access Canberra, is that the applicant has registered numerous vehicles since at various other shopfronts across the Territory.

Findings

67.The parties agree on many, if not most, of the material facts. As noted, there are some differences in chronology and in the detail, but most of these can be explained by differences in perspective, interpretation and the passage of time, and I do not intend to decide every discrepancy.

68.At only two points are there substantial and relevant differences. The first is the phrasing Ms ML’s answer to the question about the purpose of the receipt, and second is whether Ms ML said, “he’s black.” There is also some question as to whether the applicant initially withheld the receipt, but the issue isn’t crucial to any finding in this matter.

69.Ultimately, in deciding between the alleged terms of the conversation at the counter, it is the applicant’s word against that of Ms ML. However, it is the applicant who bears the onus of proving a complaint under the Discrimination Act, so where the evidence is balanced, the applicant’s case will fail. As was noted by then President Crebbin in WSOL & John James Memorial Hospital (Discrimination) [2011] ACAT 81:

A finding that a party has failed to discharge the onus of proof does not necessarily mean that the tribunal has rejected the evidence of that party or that the tribunal does not believe the evidence of the party. It means no more than that the evidence is not sufficient to establish what is needed to prove the case.[15]

[15] At [33]

70.I am satisfied that the applicant has not satisfied the onus of proof in relation to the entirety of his version of events.

71.There are two important reasons for this.

72.First, although a relatively minor issue, there was some variation between the applicant’s evidence in his complaint to the AHRC and his submissions and witness statement, particularly in relation to whether Ms ML referred to the applicant as “black”. In his oral evidence the applicant sought to explain this as being the result of gaining a greater understanding, later in the proceedings, as to what was important to include in documentation. However, the assertion that Ms ML referred to the applicant as “black” is a serious allegation, and that it was not included in the first complaint goes to the credibility of the applicant’s evidence about that part of the complaint (although not necessarily to his honesty).

73.Second, all parties agree that the events of 3 May 2019 were witnessed by the applicant’s friend, Mr RN. The applicant neither called Mr RN to give evidence, nor obtained a witness statement from him, and he did not provide a convincing explanation for his absence.

74.The respondent asked that I draw a Jones v Dunkel[16] inference from the fact that the applicant did not call Mr RN. The rule in Jones v Dunkel provides that where a party fails to call a witness whose evidence would be relevant, an inference may be drawn that the witness’s evidence would not have assisted that party. There is no requirement to draw such an inference, and it is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.[17] I do not need to go so far as to conclude that Mr RN’s evidence would not support the applicant. The absence of that evidence means there is no corroboration of what the applicant alleges was said, and this alone is a significant deficiency when circumstances require that the applicant must establish his case on the balance of probabilities and much of the evidence is word against word.

[16] [1958] HCA 8

[17] Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 per Hodgson, Basten JJA & Bryson AJA

75.Having regard to the above facts, and the evidence of the witnesses, I am satisfied on the balance of probabilities that the following happened.

76.The applicant attended the shopfront to register his vehicle and was assisted by Ms JC upon arrival. Ms JC perused his documents and identified that he needed his wife’s consent to transfer the registration of the vehicle. The applicant considered this unnecessary paperwork, but after speaking to Ms JC and Mr CW, he went and sought the necessary consent from his wife. He was likely frustrated, but many people feel similarly when they have to wait at the shopfront on a busy day, and there was nothing unusual about the interaction on either side.

77.Nonetheless, the applicant was left with the impression that Ms JC had reviewed all the documentation and approved the transfer of the registration of the car, subject to him obtaining his wife’s consent. While this was perhaps not an unreasonable conclusion to draw, Ms JC’s role was limited to providing initial assistance and checking the documentation was in order, and this was all she did.

78.The applicant obtained his wife’s consent by way of an email that she sent through to the shopfront. The applicant then spoke again to Mr CW, where he raised the issue of unnecessary paperwork. He was taken to see Ms ML. There is some disagreement over how long the applicant had to wait, but that is not a matter of any consequence. The parties also differ on whether the applicant was still frustrated at this point. I am satisfied that he was, and hence he was given some priority. Nonetheless, this is not a significant issue, as both Ms JC and Mr CW are trained to manage frustrated customers.

79.The applicant’s documentation was placed before Ms ML. That documentation included the receipt, but Ms ML initially could not locate it. She asked for the receipt, but as far as the applicant was concerned, she already had it, and he was further frustrated by the process.

80.Ms ML then explained that she needed the receipt as evidence that the applicant purchased the car. On the balance of probabilities, I am satisfied that she used the word “steal” or “stolen”, in the context of saying that they needed the receipt to ensure that it wasn’t. I am so satisfied because Mr CW’s filenote indicates that the applicant made the allegation that Ms ML said “how do I know you haven’t stolen this vehicle” when he spoke to Mr CW on 3 May 2020, and this phrasing is consistent throughout all the documents.

81.This was a poor choice of words. However, Ms ML says, and I accept, that she did not intend the statement to sound like an accusation that the applicant had in fact stolen the car. Nonetheless, the applicant and Mr RN interpreted the comment as either an accusation, or at the very least, an expression of suspicion that explained what they saw as unnecessary additional scrutiny of a routine application. On this basis, the applicant formed the view that Ms ML was influenced by the assumption that because the applicant was as a man of African origin, there was an increased possibility that he had stolen the vehicle.

82.From that point, a series of misunderstandings cause the conversation to deteriorate further. Ms ML, quite rightly, questioned the applicant about the difference between the purchase price on the receipt and the market price for the vehicle. She did so because of the discrepancy between the figures on the documentation. This was a reasonable basis to form a suspicion that the applicant was seeking to obtain a discount on stamp duty. The applicant attempted to explain the discrepancy to Ms ML. I have no reason to doubt his explanation, (which appears to reference the Redbook “trade in price” as the purchase or market price[18]) was honestly held. Nonetheless, as Ms ML pointed out, that discrepancy meant the transfer could not proceed.

[18] Extract from redbook.com.au for 2006 Mercedes-Benz CLS-Class filed 17 August 2020.

83.The applicant then indicated an intention to make a complaint. The miscommunication escalated even further. Ms ML assumed that the applicant wanted to make a complaint about the requirements for paperwork, including the requirement to obtain his wife’s consent and the alleged double handing of the receipt. She told him that the complaint would not go anywhere because she needed the authorisation and the receipt, and the information on the documentation disclosed a discrepancy. She also told him that to make a complaint, he would need to go to the Access Canberra website, and that a complaint made to her manager it would not be taken seriously. In fact, the applicant wanted to make a complaint about his experience of Ms ML’s customer service, how her unwarranted suspicion that he stole the car made him feel, and what he perceived as additional scrutiny. He interpreted Ms ML as saying more generally that complaint would go nowhere or would not be taken seriously.

84.I do not accept that Ms ML at any time said, “well he’s black but I don’t mean to be racist.” That would be an extraordinarily foolish thing for a customer service officer to say in an open area, and the complainant’s allegation that she said it emerged only later in the complaint process, after he had made his complaint to the AHRC and after he received legal advice. Significantly, in his letter to the AHRC of 21 October 2019 he said only that Ms ML apologised and said that she did not mean to be racist.

85.I accept that Ms ML said that she “did not mean” for the comments she made to be interpreted in the way that they were. She may have said she “didn’t mean to sound racist,” or words to that effect. This suggests she was aware, at least after the event, that the statements could be open to an offensive interpretation.

86.Ms ML frankly conceded that during the conversation on 3 May 2019 she said words to the effect of “you’re standing over me like you’re better than me.” She did not mean this to be a racial comparison, but an expression of her perception that the applicant was arrogant.

87.I am satisfied that every person involved in the events of 3 May 2019 was frustrated to some degree. The applicant and Mr RN were particularly disgruntled, and this was apparent in their manner. Ms ML, who had only recently finished school was relatively new in the role, did not yet have the experience in dealing with frustrated clients that Mr CW and Ms JC did, reacted in turn. These things happen. As Mr CW said, it was a busy day.

88.I am satisfied on that on 6 May 2019, the applicant returned to the shopfront to seek an apology. Ms ML and Mr CW offered one, but the applicant did not consider it genuine and did not accept it.

89.The events of both days, and particularly 3 May 2019 were most unfortunate. The question is whether they constitute discrimination.

Elements of a discrimination complaint

90.The Discrimination Act makes it unlawful to engage in certain kinds of discriminatory conduct, in an area of public life identified in Part 3 of the Discrimination Act, and because of a protected attribute specified in section 7 of the Discrimination Act. It does not make all forms of preference or unfavourable treatment unlawful.

91.The conduct that may fall under the scope of the Discrimination Act takes two forms:

(a)Where a person treats another person unfavourably because, or on the basis that, they have the protected attribute (direct discrimination).[19]

(b)Where a person imposes a condition or requirement that disadvantages a person because they have the protected attribute (indirect discrimination).[20]

[19] Discrimination Act 1991 section 8(2)

[20] Discrimination Act 1991 section 8(3)

92.The difference between the two types of conduct was described by Beaumont ACJ in the Federal Court decision of Edgley v Federal Capital Press of Australia Pty Ltd[21], as follows:

The legislature intended to focus attention upon the following two quite different situations:

First, where a person is treated unfavourably by another because of an attribute… In other words s 8(1)(a) [now section 8(2)] is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards the person complaining of discrimination.

Secondly s 8 applies where, although particular conduct is not aimed at a complainant, it has, or is likely to have, the “effect” of disadvantaging him or her, because of an attribute.[22]

[21] [2001] FCA 379

[22] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [53]-[55]

93.Discrimination is unlawful when it is because of a ‘protected attribute’ in section 7 of the Discrimination Act. ‘Race’ is a protected attribute under section 7(q) of the Discrimination Act. ‘Race’ is defined in the Dictionary to the Discrimination Act to include “colour, descent, ethnic and national origin and nationality”. Section 7(2) provides that a ‘protected attribute’ includes a characteristic that people with the attribute are generally presumed to have.

94.Discrimination must occur within an ‘area of public life’ set out in Part 3 of the Discrimination Act. For present purposes, ‘services’ is the relevant area of public life. Section 20 of the Discrimination Act states the following:

Goods, services and facilities

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person –

(a)     by refusing to provide those goods or services or make those facilities available to the other person; or

(b)     in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c)     in the way in which the provider provides those goods or services or makes those facilities available to the other person.

95.As noted above, the applicant bears the onus of establishing that unlawful discrimination has occurred. However, there is a rebuttable presumption in sub-section 53CA(2) of the HRC Act that discrimination has occurred if the applicant establishes that the treatment was unfavourable and presents evidence that enables the Tribunal to decide, in the absence of any other explanation, that the treatment was because of his protected attribute.

Protected attribute

96.The applicant is of Zambian ethnicity. His ethnic origin is a protected attribute of the applicant under section 7(1)(q) of the Discrimination Act. This is not in dispute.

97.The applicant appears to be contending that is a generally held ‘presumption’ that people of Zambian or African origin are more likely to engage in the theft of cars. The respondent says that this inference is not true, and in any case is not open to the applicant in these circumstances.

98.The only evidence I have before me is the applicant’s lived experience that he suffers prejudice of this kind. I do not doubt his experiences. Certainly, it would be disingenuous to deny that persons of African background, and particularly young men, suffer from a range of presumptive, negative stereotypes. However, there is no objective evidence before the Tribunal of a ‘general presumption’ within the community of the kind contended by the applicant. There is certainly no evidence that any such views are held by any representative of the respondent, but ultimately proving such is not necessary to making out this case.

Area of public life – is the registration of a vehicle a service?

99.The service relied upon by the applicant is that of the “transfer of ownership of the car to the applicant’s name” for the purpose of registration.

100.The respondent submits that the making of a decision on an application for registration under sections 28–30 and 32 of the Road Transport (Vehicle Registration) Regulation 2000 is not the provision of a service for the purposes of section 20 of the Discrimination Act. Rather, Access Canberra is performing a statutory power or duty and not providing goods, services and facilities of the kind that would be provided by the private sector. The respondent contends that this is not a ‘service’ within the meaning of that term in the Discrimination Act.

101.The concept of ‘service’ was considered by the High Court in IW v City of Perth[23] in the context of the of Perth City Council’s decision to reject an application for town planning approval for a centre for people with HIV. While the reasoning of the plurality differed, all the Justices of the High Court agreed that in some cases the performance of statutory duties may also amount to a ‘service’ to a particular individual. Subsequent decisions have clarified that the performance of a statutory obligation that grants a benefit to an applicant is a ‘service’ for the purpose of the Discrimination Act.[24]

[23] [1997] HCA 30

[24] See for example, Rainsford v Victoria [2007] FCA 1059

102.I am satisfied that the transaction involved in registering a vehicle is both a service and the performance of a statutory duty. It is quite clearly a service provided for the benefit of the applicant, who is otherwise unable to register, and hence drive, his vehicle. The ‘service’ involves a series of steps and decisions, some of which are prescribed by legislation and outside the scope of this action, but others of which involve an exercise of discretion that is capable of consideration under the Discrimination Act.

Did the respondent refuse to provide a service?

103.The respondent did not refuse to provide a service for the purposes of section 20(a) of the Discrimination Act. The respondent offered the applicant access to a means by which he could register his vehicle in accordance with the law. He exercised his right to that service. The applicant voluntarily withdrew his application for registration before that process was complete. It was always open to the applicant to submit his application for registration of a vehicle to the respondent. He has used shopfront services since.

Did the respondent impose a condition or requirement upon the applicant?

104.It is not disputed that the respondent required that the applicant provide Ms ML with the receipt. If this were a condition for the purpose of section 20(b) of the Discrimination Act, the applicant met it.

105.That said, I am not convinced that the requirement to provide a receipt was a “term or condition on which [it] provided the service” so much as an intrinsic part of the application under the Road Transport (Driver Licensing) Act 1999. Even if it were such a requirement, it is not an unreasonable requirement, nor one that would have a disproportionate or unreasonable effect on the applicant. It is entirely reasonable that a person seeking to have a vehicle transferred into their name be required to provide a copy of the receipt to the person processing the application. There is nothing in such a condition that would disadvantage the applicant because of his race.

Did the respondent discriminate against the applicant in the way in which it provided services to him?

106.Where there is greater merit in the applicant’s case is in the contention that he was treated unfavourably in the way in which the service was provided. There are several aspects to this, but generally, the issue is the way the respondent’s employees spoke to the applicant. The allegations appear to be that:

(a)There was additional scrutiny of the applicant’s documentation, and that was unfavourable treatment;

(b)the words “how do I know you did not steal the car” were unfavourable treatment;

(c)the words “your complaint will go nowhere” were unfavourable treatment;

(d)the manner, tone or nature of Ms ML and Mr CWs interactions with the applicant were rude and aggressive and unfavourable to him; and

(e)his complaints were unfairly dismissed without investigation or censure of Ms ML because the respondent had formed a negative view of him, or his intentions.

107.In response, the respondent submits that, even if this conduct can be proven to have happened, the Tribunal could not be satisfied, to the requisite standard, that the applicant’s race was a real, genuine and not insubstantial reason for the respondent’s conduct, and there is no basis to conclude that it was.

108.In relation to the first of the matters at (a)-(e) – the additional scrutiny – the evidence is clear that this did not happen. It was not Ms JC or Mr CWs’s role to scrutinise the applicant’s documentation or process the transaction, and therefore there was no additional scrutiny by Ms ML. There was no unfavourable treatment in this regard. To the extent that there was some additional scrutiny of the receipt by Ms ML, I am satisfied that is because the value of the vehicle differed on the receipt and the transfer application. It was Ms ML’s role to scrutinise and identify such a difference. Even if this amounts to unfavourable treatment, it was not because of the applicant’s race.

109.The remaining grounds are more contentious and requires careful consideration of what ‘unfavourable treatment’ is under the Discrimination Act, and the requirement that an applicant establish causation.

110.Section 8 of the Discrimination Act requires that the applicant be subjected to “unfavourable treatment”.

111.The Discrimination Act does not include any definition of ‘unfavourably’ or ‘unfavourable treatment’. However, a body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner[25] (which was affirmed in Edgley) President Curtis said:

The ACT Discrimination Act ...does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.[26]

[25] [1996] ACTAAT 132

[26] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]

112.In other words, unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[27] The applicant at least suffered embarrassment when he took Ms ML’s comment as an accusation that he may have stolen the car.

[27] Cooley v Australian National University [2007] ACTDT 2

113.There is no comparator in Territory legislation. Possibly, Ms ML has said similar things to other people, who have not taken offence, but it is no defence to say “but the same words would have been said to anyone” if the requirements of section 8 are otherwise made out. Instead, the question is simply whether the conduct was unfavourable, and whether that conduct was because of the protected attribute.

‘Because’ and causation

114.To establish causation in direct discrimination, the applicant must establish the real reason or true basis for the identified unfavourable treatment was his race or ethnicity, and this must be done via objective evidence. He must do this on the balance of probabilities.

115.The degree of satisfaction that is required must be set having regard to the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the allegations. It is generally accepted that the standard of satisfaction which pertains to a discrimination complaint is that described in Briginshaw v Briginshaw:

...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[28]

[28] Briginshaw v Briginshaw (1938) 60 CLR 366 at pages 361-2 per Dixon J

116.Briginshaw does not shift or increase the standard of proof from the ordinary civil standard of balance of probabilities to something higher[29], but it does require that the Tribunal reach a conclusion with a comfortable degree of satisfaction based on sufficiently robust evidence, rather than inexact proof, indefinite testimony or indirect inference. This can be a difficult requirement to meet and is perhaps one of the more significant barriers to discrimination proceedings being successful.

[29] See in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 – 171 per Mason CJ, Brennan, Deane and Gaudron JJ

117.Producing evidence to establish causation is often difficult in discrimination cases. Direct evidence of the reason for discrimination, particularly racial discrimination, is unusual. In the absence of direct evidence, inferences may be drawn, provided they are reasonable and definite and can properly be drawn from the facts as found by the Tribunal. These should be either the only inferences reasonably available, or the inferences which exist after all other reasonable inferences have been rejected.[30] There are reasonable alternative reasons for the comments made by Ms ML. I accept those reasons. I am satisfied that Ms ML did not say what she did because of the applicant’s race (although I acknowledge that does not alleviate the anger felt by the applicant or invalidate his perception).

[30] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362

118.There are a number of studies and reports that document how people may act for reasons that they are unaware of or refuse to admit themselves.[31] This will still be unlawful – it does not matter whether or not the respondent is aware of the discrimination or considers the treatment to be unfavourable.[32] Indeed, such unthinking conduct bias is one of the very things the Discrimination Act is intended to address.[33] However, there is no evidence of any such bias on Ms ML’s part, and nor was such a case particularised in the applicant’s submissions.

[31] Linda Krieger, ‘The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Opportunity Employment’ (1995) 47 Stanford Law Review 1161; Charles Lawrence, ‘Unconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, the Ego, and Equal Protection”’ (2008) 40 Connecticut Law Review 931

[32] Waters v Public Transport Corporation [1991] HCA 49

[33] See Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75

119.The same reasoning applies to the other allegations particularised at paragraph 106 (c)-(e), above. To the extent that there was unfavourable treatment, in the words chosen or the tone used, that unfavourability is explained by other causative factors other than the applicant’s race.

120.On a slightly different point, during the hearing, much of the applicant’s cross examination of Ms JC went to the basis for her perception of the applicant as agitated. Ms JC describes his interaction with her as “abrupt and short” and that she ‘felt’ the conversation would be difficult from the beginning:

My question will be, you said you assumed I was offended or agitated. On what grounds do you say that that was so?‑‑‑It was just your demeanour. When I spoke to you - and I thought I was quite pleasant to you - when you replied, you initially, right from the very beginning, seemed quite agitated and quite cross with me.

I assumed - I appeared to you?‑‑‑Yes.

In your own perspective?‑‑‑Yes. So - so I was being, if you like, extra polite to you because I didn't - I felt you were going to be very difficult to me and I didn't want a difficult situation, so I've tried to explain it and be extra polite to you so that - because we don't want people obviously getting upset in the shopfront and - and causing problems, so I was trying to be extra nice to you because I felt you were angry right from the beginning.

Okay. So what you're saying is you saw me and you assumed I was going to be difficult to deal with?‑‑‑No, it was after you spoke to me.

Okay?‑‑‑At the beginning when I spoke to you, but initially how you behaved towards me and then your tone towards me. Your tone was - it was your tone initially I think that alerted me, that you were very unhappy and you made it quite clear that you were very unhappy and every time I said something you put up a barrier to - like, I said, we could do this, and you put up a barrier and that's why I thought maybe you weren't understanding what I was trying to say, so that's why I rephrased things again, because I thought maybe you're just not understanding me. You're not purposely putting up the barriers; you - you're just - you're not understanding what I'm - what I'm saying. In the end I just felt that you were - right from the beginning that it was going to be a difficult conversation.[34]

[34] Transcript of proceedings 6 October 2020 pages 40-41

121.It may be possible to infer a presumptive assessment by Ms JC, but she has explained her actions and decisions by reference to the applicant’s manner and demeanour. In any case, at the point the applicant was dealing with Ms JC, no unfavourable treatment was evidenced, beyond perhaps Ms JC’s tense or unusually polite tone. The was nothing unfavourable about the applicant being required to obtain the consent of his wife. There is also no suggestion that applicant was treated unfavourably in terms of the progress of his application because of the interaction. Perhaps, at its highest, I could conclude that either Mr CW or Ms ML approached the interaction with the applicant somewhat defensively, because of the involvement of the concierge, but this is speculative, and doesn’t reach that required standard of proof for making out a legal claim.

122.I want to emphasise that this does not mean that I reject the applicant’s evidence as to his personal experience. I accept that he felt he was treated unfairly and that he was embarrassed. He has interpreted the words in a context where he has a lived experience of judgement and accusation because of his race. His perception, having regard to his experiences, is not unreasonable, but it does not meet the criteria for unlawful discrimination under the Discrimination Act. Instead, this case is an important example of how words, even innocently spoken, can matter so much.

Summary

123.The case comes down to a question of causation, and particularly the need to establish a connection between unfavourable treatment and a protected attribute.

124.The applicant’s experience on 3 May 2019 left him feeling hurt and embarrassed. It was unfavourable treatment in that sense. But the treatment itself was not because of his race. No causal link is established, and so it does not meet the definition of direct discrimination.

125.Nor do the facts of this case establish indirect discrimination. The applicant has not established any term or condition that was unreasonably imposed and disadvantaged him.

126.On one view, this case illustrates one of the limitations with equal opportunity law generally. While anti-discrimination law not intended to be punitive, nor to ascribe blame or guilt, the legal process that underlies it still requires that an adjudicative tribunal make findings of fact on a civil standard of proof, including findings of causation. Those findings cannot be made here. While Ms ML’s comments were unfortunate, and clearly offensive to the applicant, they do not meet the legal definition of being racially discriminatory, and nor does the conduct of any other employee of the respondent. The Discrimination Act is not designed to address every situation where tempers fray or disagreements arise.

Conclusion

127.The Tribunal cannot be satisfied that the respondent, through its employees, engaged in unlawful discrimination within the meaning of the term in the Discrimination Act. It is therefore is not empowered to make any of the orders sought by the applicant pursuant to sub-section 53E(2) of the Human Rights Commission Act 2005.

………………………………..

Presidential Member H Robinson

Date(s) of hearing	6 October 2020
Applicant:	In person
Counsel for the Respondent:	Mr S Onitiri
Solicitors for the Respondent:	Ms G Ho, ACT Government Solicitor