Bell & De Castella and Rob De Castella's Smartstart For Kids Limited - [2013] ACAT 27

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BELL & DE CASTELLA AND ROB DE CASTELLA’S

SMARTSTART FOR KIDS LIMITED
(Discrimination) [2013] ACAT 27
DT 11/27 and DT 12/01
Catchwords: DISCRIMINATION – referral of complaint from Human Rights Commission – complaint of discrimination: attributes of race, profession and political conviction – whether complainant was treated unfavourably: objective test – onus of proof - considerations from which inferences of discrimination may be drawn – whether grant fund was improperly used - need for direct causal link between unfavourable treatment and attribute of complainant – whether video evidence supports allegation about respondent’s conduct – apprehension of bias: whether senior member should recuse herself from hearing – test of fair-minded lay observer
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, s.23
Discrimination Act 1991, ss. 7, 10 and 66, and parts 3, 5 and 7
Human Rights Commission Act 2005, ss. 53, 53E and 78

List of Cases: Anderson v ACT Community Care [2004] ACTDT 3
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Croatian Brotherhood Union of W.A. (Inc) v Yugoslav Clubs and Community Associations of W.A. (Inc) (1987) EOC 92 – 190 at 76,815
De Domenico v Marshall [1999] FCA 1305

Dutt v Central Coast Area Health Service [2002] NSWADT 133
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Edgeley v Federal Capital Press [2001] FCA 379
Firestone v Australian National University [2009] ACTDT 1

J v Federal Capital Press of Australia Limited
[1999] ACTDT 2
Kioa v West (1985) 159 CLR 550
Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales (Department of Education and Training) (2003) HCA 62
Re JRL; Ex parte CJ L (1986) 161 CLR 342

Re Polites; ex parte Hoyts Corporation (1991) 173 CLR 78
Sharma v Legal Aid Queensland (2002) FCAFC 196
Veness v Medical Board of Australia (Occupational Discipline) [2011] ACAT 55
Wang v ACT Department of Education, Youth & Family Services [2005] ACT DT 4
Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349
Webb v R (1994) 181 CLR 41

List of Texts/Papers: JRS Forbes, Justice in the Tribunals, 3rd edition, The Federation Press, 2010
Human Rights and Equal Opportunity Commission, The Right to a Discrimination-Free Workplace, Legal Section, July 2008
Neil Rees, Katherine Lindsay& Simon Rice; Australian anti-discrimination law, The Federation Press, 2008
Council of Australasian Tribunals, Practice Manual for Tribunals

Tribunal: Ms J. Lennard – Senior Member

Date of Orders:           26 April 2013
Date of Reasons for Decision:         26 April 2013
AUSTRALIAN CAPITAL TERRITORY          )          DT 11/27
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 12/01

BETWEEN:
WILLIAM JOHN BELL
Applicant

AND: FRANCOIS ROBERT DE CASTELLA

ROB DE CASTELLA’S
SMARTSTART FOR KIDS LIMITED
Respondents

TRIBUNAL: Ms J. Lennard – Senior Member

DATE: 26 April 2013

ORDERS

The Tribunal orders that:

The applications as to costs are adjourned.
The respondents are to file and serve submissions as to costs on or before 17 May 2013.

The applicant is to file and serve a response on or before 31 May 2013.

The applications are otherwise dismissed.

………………………………..
Ms J. Lennard
Senior Member

REASONS FOR DECISION

Hearings and representation

Mr William John Bell, the applicant in these applications, was self-represented.
Mr David Robens, Dibbs Barker, represented the respondents, Mr Francois Robert de Castella and Rob de Castella’s SmartStart for Kids Limited.
The applications were referred to ACAT by the Human Rights and Discrimination Commissioner.
The hearing was conducted over several days as follows:
a.25 June 2012 and 26 June 2012 – at these hearings the majority of evidence was received by the tribunal. Mr Bell gave his evidence in chief by addressing each ground of his complaints separately. He was cross-examined as he completed his information on each ground. There was considerable overlap between the grounds and the evidence supporting each one. Mr Bell gave his evidence and was subject to cross examination from the beginning of the hearing on 25 June 2012 to the luncheon adjournment on 26 June 2012.
b.Mr de Castella gave his evidence in chief and was cross-examined by Mr Bell during the afternoon of 26 June 2012. The Tribunal adjourned at 6:44 pm and ordered that the parties make further written submissions to conclude the matters. The respondents specifically reserved their right to make an application for orders for costs if they were ultimately successful. The tribunal undertook to make enquiries about the provision of the transcript to the parties, to assist in the preparation of written submissions. It is the tribunal’s understanding that the applicant was granted a fee waiver in relation to all transcripts.
c.23 July 2012 - Mr Bell made an application for the following:
1.       an order that the senior member of the tribunal disqualify herself because of an apprehension of bias[1];
2.       a reopening of the hearing to allow him to present further evidence; and
3.       further directions in relation to the submissions that were required at the adjournment of the hearing on 26 June 2012.
d.30 August 2012 to receive further evidence from the applicant, namely, to watch a DVD titled Running to America and a DVD titled Living Black.

The jurisdiction of ACAT

[1] Tribunal briefly outlines the reasons given ex tempore for dismissing the application that the senior members disqualify herself. These may be found in appendix 1 to this decision.

Mr Bell made a complaint under the Human Rights Commission Act 2005 (ACT) (the HRC Act) to the ACT Human Rights Commission on or about 20 December 2010. On 1 July 2011, the ACT Human Rights and Discrimination Commissioner closed the complaint as lacking in substance pursuant to subsection 78 (2) (c) (iv) of the HRC Act. On 7 February 2012 the Commissioner, following a request from the applicant, referred the complaint to ACAT. Mr Bell made a further complaint under the HRC Act to the Commission on 16 January 2012. The second complaint was referred to ACAT on 7 February 2012. The second complaint canvassed some of the same issues as the first complaint but added a ground of complaint relating to a meeting between the parties on 21 December 2010 at which a document entitled ‘Smart Start for Kids Volunteer Allowance Agreement’ was proffered to the applicant. ACAT dealt with the two complaints together. While there were two complaints and 2 respondents, Mr Bell’s submission and evidence were primarily directed to the conduct of Mr de Castella.
Section 53E of the HRC Act provides:
(1) This section applies if—
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
Section 53 of the HRC Act provides that "unlawful act" means an act that is unlawful under the Discrimination Act 1991 (ACT) (the Discrimination Act), part 3 (Unlawful discrimination), part 5 (Sexual harassment), section 66 (Unlawful vilification—race sexuality etc) or part 7 (Other unlawful acts).
The relevant provisions of the Discrimination Act say that a person discriminates against another person if the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7. Section 7 provides that the Discrimination Act applies to discrimination on the grounds of listed attributes: the attributes relevant to this application are found in subsections 7 (h), (i) and (m) – race, political conviction and profession.
The Discrimination Act defines “employment" to include work as an unpaid worker. Section 10 of the Discrimination Act provides, inter alia, that it is unlawful for an employer to discriminate against a person in the terms or conditions on which employment is offered [10 (1) (c)]; in the terms or conditions of employment that the employer affords the employee [10 (2) (a)]; by dismissing the employee [10 (2) (c)] or, by subjecting the employee to any other detriment [10 (2) (d)].

Background

Rob de Castella’s SmartStart for Kids Limited (SmartStart) is a not-for-profit, public company limited by guarantee. As well as the Indigenous Marathon Project, SmartStart delivers primary school based health programs funded by the ACT government. Mr de Castella is one of three directors of SmartStart and the project director for the Indigenous Marathon Project. The Indigenous Marathon Project commenced in early 2009. The ultimate publicised aim of the project was to train indigenous athletes to run in the New York Marathon in November 2010. The project had other aims: film production company GoodOil Films produced a one-hour documentary following the project in its first year (the notion of producing the documentary was the catalyst for the development of the project); and to promote running and walking within indigenous communities, and healthier lifestyles. Workshops and courses in health and fitness education and assessment were developed specifically for indigenous people, including indigenous marathon runners.
The applicant gave evidence that he was an internationally qualified coach with specialist skills and experience over forty-five years. Mr Bell is an inductee into the Central Australian Desert Foundation League of Champions Sports Hall of Fame in relation to his AFL team coaching, individual athlete coaching and marathon running feats in remote communities. Mr Bell worked extensively with athletes with special needs, including paralympic athletes; at every level of indigenous sport from desert to elite at the Australian Institute of Sport over a period of forty-five years and has international team-leading skills and experience as head coach and team manager for numerous world athletic championships. Mr Bell gave evidence of a long association with Mr de Castella and his family including, but not limited to, Mr Bell coaching Mr de Castella’s daughter in marathon running. The applicant’s evidence as to his coaching qualifications and experience within indigenous sporting communities was accepted by the respondents and the tribunal.
From 1 April 2009 to 15 November 2010, the applicant was engaged as coach of the marathon runners. The applicant was not paid a salary or wages, however, he was provided with expenses, a laptop computer and mobile phone. The alleged discrimination arises from the nature of that engagement, the alleged conduct of Mr de Castella during the course of that engagement, and, the termination of that engagement.
The parties have been in dispute since the end of 2010. Apart from the 2 matters currently before the ACAT, similar issues have been ventilated before the Fair Work Commission and in a civil dispute contract application before ACAT. There have also been proceedings in the ACT Magistrates Court between Mr de Castella and Mr Bell.
Preliminary Issues
The tribunal turns first to the question of the onus of proof. The applicant must take responsibility for the presentation of his case. While the Discrimination Act is silent as to the onus of proof, it is important to consider both the onus and standard of proof because it is often difficult for an applicant to provide direct probative evidence that the discrimination, as a matter of fact, occurred. ACAT is cognisant of the difficulties faced by applicants in discrimination matters, and therefore, allowed a great deal of latitude to the applicant in the filing of documents, the acceptance of evidence and final submissions. ACAT is not bound by the rules of evidence, however, the tribunal must be careful when assessing evidence. Evidence must be given weight and weight will be determined by the substance, the source, and the relevance of the evidence to the issues before the tribunal: evidence must be reliable, relevant and probative in nature. The respondents do not have to prove that the conduct alleged did not occur, but of course should bring evidence in rebuttal[2].
[2] De Domenico v Marshall [1999] FCA 1305
The standard of proof is the civil standard, that is, on the balance of probabilities. The tribunal has to decide what was more likely to have happened: not in a broad sense, but looking at each of the allegations, is it more likely or not that the allegation is made out? The Briginshaw[3] test is often mentioned in discrimination matters and ACAT takes the view that this test should not be used to impose a higher standard of proof in discrimination matters, but should serve as a warning to decision-makers to be careful of the evidence upon which they rely to make findings of facts on the balance of probabilities, when these findings may have serious consequences for the person against whom they are made. Thus, while a higher standard of proof is not imposed, the evidence produced by the applicant must be able to establish that the conduct was more likely to have occurred than not. The tribunal accepts that it is necessary to rely on inferences in many cases brought in relation to anti-discrimination legislation. It is unusual to find direct evidence of unlawful discrimination and therefore, the outcome of the case will often depend on what inferences it is proper to draw from the primary finding of facts[4]. In practice, the non-technical meaning of evidence in tribunals may ease the burden and standard of proof. All rationally probative evidence is admissible and it is for the tribunal to assess its weight and significance[5]. In Sharma v Legal Aid(Qld) [2002] FCAFC 196 the Full Court of the Federal Court noted: it is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of the case will usually depend on what inferences it is proper to draw from the primary facts found. There may be cases in which the motivation may be subconscious …. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did. … In a case depending on circumstantial evidence, it is well established that the trier of fact must consider the weight which is to be given to the united force of all the circumstances put together. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone. … It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts[6].
[3] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)
[4] See Sharma v Legal Aid Queensland (2002) FCAFC 196
[5] JRS Forbes, Justice in the Tribunals, 3rd edition, The Federation Press, 2010 [12.19]
[6] Sharma v Legal Aid (Qld) [2002] FCAFC 196 (21 June 2002) at 40 – 41.
In proceedings before the tribunal, allegations of discrimination made by the complainant are required to be proved to a proper standard based upon evidentiary material… It is not necessary that the allegations be proved beyond reasonable doubt but there must be a comfortable degree of satisfaction that they have been proved by the evidence which is sufficiently robust to justify the conclusion arrived at rather than in inexact proofs, indefinite testimony or indirect inferences[7].
[7] Wang v ACT Department of Education, Youth & Family Services [2005] ACT DT 4 (14 September 2005) at paragraph 92.
The tribunal recognises the difficulty faced by an applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment complained of by the applicant was on the ground of the applicant’s race. This may also be true in relation to the attributes of political conviction and profession. In cases where there is no direct evidence of the discrimination, the applicant may use inferences drawn from the primary facts to support those allegations.
The courts and tribunals have in a number of decisions identified the following considerations in the drawing of inferences:
a.       a causal link can be established by inference from primary facts;
b.       an inference must be reasonably drawn on the basis of the primary facts;
c.       an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
d.       a fact relied on as the basis of an inference need not be proved on the balance of probabilities;
e.       it is not enough that the inference is a mere possibility: it must be one of probable connection;
f.       the inference must be a logical one, and not supposition; and
g.       an inference cannot be made where more probable and innocent explanations are reasonably available on the evidence[8].
[8]   Dutt v Central Coast Area Health Service [2002] NSWADT 133 (6 August 2002) at paragraph 70.
The applicant contends that the Marathon Project was a “special measures workplace” and this is an assertion that runs throughout the applicant’s written submissions and oral evidence. ‘Special measures’ are things done by way of affirmative action that may confer a benefit upon a group that has been historically disadvantaged in order to achieve substantive equality. Each of the Federal, State and Territory Acts has its own definition of ‘special measures’[9]. Relevant examples are the provision of Abstudy to indigenous students and providing for a 50% representation of women in executive positions. The Discrimination Act provides at section 27 that it is not unlawful to do an act if the purpose of the act is to achieve equal opportunities for members of the relevant class of people or to give members of the relevant class of people access to facilities and services or opportunities to meet the special needs they have as members of the relevant class. The applicant is not a member of the relevant class of people who were to be afforded equal opportunities by the Marathon Project. If an act of discrimination against him because of one of the attributes he has identified was proven, the respondents would not be protected by section 27 of the Discrimination Act. The tribunal notes that the respondents specifically stated early in the proceedings and on 25 June 2012 that they would not be relying on the argument that the Marathon Project was a “section 27 special workplace”.
[9] The Right to a Discrimination-Free Workplace, Legal Section, Human Rights and Equal Opportunity Commission, July 2008.
Nevertheless, the applicant has argued that the nature of the workplace, being one which was designed to confer a benefit upon indigenous people, ought properly to be taken into account by ACAT. The tribunal agrees with the applicant that the special circumstances of the workplace are an important factor to be considered.

Credit of the parties

The applicant’s evidence was given largely in narrative form. ACAT accepts that in discrimination cases it is often difficult to separate the grounds of complaint on an event-based or factual basis. In this matter the applicant alleges that he was treated unfavourably in his employment generally and in specific instances. The tribunal received evidence in two primary forms: written statements of facts and contentions filed prior to the hearing, with attached emails, letters, newspaper articles and other documents; and oral evidence from both the applicant and Mr de Castella. Video evidence was viewed and addressed by the applicant on 30 August 2012.

A primary function of the tribunal is to make findings of fact. In discrimination cases, inferences may be drawn from the findings of fact. Where an allegation made by an applicant is contested by the respondent and no independent corroborating evidence is available to resolve the contest, the tribunal may have regard to the demeanour of the parties, the inherent improbability of the version that is rejected and matters going to the credit of the parties.
The applicant gave evidence over one and a half days. He was often emotional and obviously stressed throughout the hearing. The tribunal allowed him a great deal of flexibility in the presentation of his case. The tribunal accepted letters from supporters, newspaper articles and hearsay. ACAT formed the view that Mr Bell had invested a great deal of time and effort and emotional energy into the preparation of his case and ought to be afforded the opportunity of presenting his case to the fullest extent possible. He said that Mr de Castella had acted maliciously towards him and alleged that he “exhibits a history of misrepresentation, contradictions, omissions and untruths”. In his final written submissions the applicant stated; I contend that Mr de Castella exhibited a history of misrepresentation, inconsistencies, lies and general deception in my employment.
The applicant asserted that Mr de Castella was a person of little credit and that where the tribunal is faced with conflicting evidence, the evidence of the applicant ought to be preferred. To this end, the applicant provided evidence relating to the grant funding obtained by the SmartStart in relation to the Marathon Project. The applicant asserted that the respondents had not properly dealt with funds provided in the grants: budget proposals submitted to the Department of Health and Ageing [DOHA] contained specific budget lines for a coach. Mr Bell was not paid a salary for his coaching activities. The applicant asked the tribunal to draw the inference that either the respondents had obtained money under false pretences, or, had used money obtained specifically for the payment of a coach, for another purpose. The applicant produced no evidence to support this allegation, except copies of information obtained under an FOI application from DOHA. The applicant asked for an adjournment in order to obtain further documents from DOHA and produced to the tribunal letters from DOHA relating to his FOI requests. The applicant submitted that the information went to the credit of Mr de Castella rather than to any of the particular grounds of complaint. It was evident from the letters from DOHA to the applicant that no further documents would be made available to him. The SmartStart and Mr de Castella provided, at the request of the tribunal, budget documents for four grants obtained from DOHA. The documents indicated that when a grant agreement was made, the amount of money granted was a one-line entry and that there was no expectation that money would be spent on any specific aspect of the project, although all the money was to be expended to achieve the project’s aims. There was no evidence to suggest that the respondents had not met their obligations under the grant agreement.
Nevertheless, given the urging of the applicant, the tribunal attempted to obtain information about the reporting and acquittal requirements attached to grant funding from DOHA. On 12 February 2013, the tribunal received correspondence which indicated that the Department administers many funding agreements across disparate projects, those agreements having varying terms and conditions in relation to the use of, reporting and acquittal of funds. The department does not have general guidelines for these requirements. The requirements are set out in each funding agreement and are often tailored to the specific circumstances of each matter. The evidence from DOHA does not support the applicant’s submission that a recipient of grant funds is obliged to spend those funds only upon the activities identified and as specified in the original budget and grant proposal.
There is no evidence before the tribunal that supports a finding that Mr de Castella engaged in dishonest or misleading conduct in relation to the grant funds.
Mr Bell presented his narrative in great detail. It is accepted that generally, he sought to present rational and truthful evidence to support his assertions, but it appears that on one occasion he fabricated evidence to suit his assertions, and misled the tribunal in relation to that same evidence.
In his original submission, received by the tribunal on 19 August 2011, under the heading “Respondent’s rejection of Applicant’s professional and cultural advice”, Mr Bell stated at paragraphs 19 and 20: On 26 August 2010 the respondent insisted that one of the athletes participate in a 30 K endurance run despite medical advice from Dr Nicolette de Zoete that the athlete should receive immediate physiotherapy treatment (Attachment 9). On 27 August 2010 the respondent rejected the applicant’s professional advice as the Project Coach that the athlete should be treated by a physiotherapist and not by an indigenous healer with no medical qualifications.
Attachment 9 to the submission was an email addressed to the applicant and purporting to be from Dr Nicolette de Zoete: the email states that the doctor examined the athlete on 21 August 2010. The date 21.8.10 is repeated in paragraphs 1 to 3 of the email. The email further states that the athlete had had x-rays on 15 August 2010. Attachment 9 had the appearance of a print off of an original email.
On 13 September 2011, Mr Bell made further submissions to ACAT headed ‘Errata’ which contained a substitute Attachment 9 where the dates had been altered so that the doctor’s email now states that she saw the athlete on 21 September 2010, and he had his x-rays on 15 September 2010. Mr Bell offers by way of explanation following: I made a mistake transcribing Dr Nicolette de Zoete’s email advice dated 18^th of August 2011 at Attachment 9 of the Facts and Contentions. I received Dr Zoete’s email very late on the eve of the final deadline day for submissions of the Facts and Contentions to ACAT. … I was laboring under the mistaken impression that the dates surrounding the events involving [the athlete] and his medical treatment by Dr Zoete occurred in the final week of August 2010. Mr Bell also advised the tribunal that he had made mistakes on the dates in his submission at paragraphs 19 and 20 and now wished to amend 26 August 2010 to read 22^nd of September 2010 in paragraph 19 and 24 September 2010 in paragraph 20.
During the course of the hearing on 26 June 2012, it became apparent that the parties and the tribunal had differing ‘copies’ of the email. When asked which dates were correct, Mr Bell said:
But she’s [Dr Nicolette de Zoete] made a mistake, she meant to say – because I rang her up about it – “21 August” when in fact we were in her surgery on “21 September.” it was just a typo she made.[10].
[10] Transcript of proceedings DT No 27 of 2011, 26 June 2012 page 165 at line 20
He also stated;
She’s – she’s mixed it up. She got it mixed up because when we went in she took x-rays on 15 August 2010 because it was very swollen. And you advised him then to apply a… 2 weeks and come back well 2 weeks from the 15^th is at the 21^st it’s 28 August. See she’s got that – she – she says she was rushed when she was doing this and she – she said she’s had –[11].
[11] Transcript of proceedings DT No 27 of 2011, 26 June 2012 page 166 at line 10
From these statements made by Mr Bell, ACAT drew the conclusion that his evidence was that the doctor had confused the dates and written August when she meant September. While the tribunal accepted Mr Bell’s evidence that the athlete had visited the doctor in September, the tribunal undertook to check with the doctor.
When ACAT contacted the doctor, she confirmed from her old records that she had seen the athlete on 14^th and 15^th of September 2010 and again on 21 September 2010. The doctor sent a copy of her original email to Mr Bell: that email states that she had seen the athlete on the 14^th and 15^th of September 2010 and again on 21 September 2010.
At the resumed hearing on 30^th of August 2012, Mr Bell was told that the tribunal was of the view that prima facie he had altered the evidence he was presenting to the tribunal to fit in with his original submissions. When asked about it, he offered the explanation that the doctor had made an error. When asked for an explanation, he said;“All I can say then is that it is very stressful”.
It seems that Mr Bell had transcribed the email submitted with his Facts and Contentions on 19 August 2011 and had deliberately altered the dates to reflect his recollection of events and to correspond to the evidence in his submission. The email was transcribed and attached to the submissions in such a way to lead anybody reading it to believe that it was a photocopy or print out of the email received by Mr Bell, and accurately set out the doctor’s statement. Upon revisiting his submission he realised that his recollection was faulty and that the events had actually occurred in September 2010, not August 2010. Nevertheless, during the hearing Mr Bell did not offer this explanation, but misled the tribunal into believing that this was the doctor’s error. In cross- examination, Mr Bell conceded that he had changed the dates in the emails.

The attributes identified by the applicant

The applicant has identified three attributes which he says are the basis of the alleged acts of discrimination against him: race, profession and political conviction. In his Facts and Contentions dated 12 October 2011, in a written document headed “Points of Order” handed up during the course of the hearing on 25 June 2012,and in his final submissions dated 17 October 2012, Mr Bell made submissions in relation to these attributes.
The tribunal sets out a summary of Mr Bell’s submissions in relation to the attributes:
i.Race: the applicant states in his Facts and Contentions “Mr de Castella and SmartStart discriminated against the applicant on the ground of my Anglo-Celtic race”. In cross-examination on 25 June 2012 in answer to the question ‘which race do you identify yourself as being?”, the applicant said ‘Well three-part Irish, one part English and born in Australia. White.” In many other parts of his evidence and submissions Mr Bell alleges he was discriminated against because he was non-indigenous. Usually this is alleged by way of comparison with the way in which Mr Bell believes an indigenous person would have been treated in the same circumstances. In cross examination on the matter of discrimination on the basis of being non-indigenous, Mr Bell stated ‘Yes, yes, non-indigenous. I amend all my Anglo Celtic expressions, I thought you understood non-indigenous’. This is not addressed in the applicant’s final submissions.
ii.Profession: the applicant in his Facts and Contentions states that his profession is “as a coach of athletes”. This is qualified by an explanation that as the Project Coach the applicant was required to understand and take into account the cultural professional demands that directly impact on Aboriginal athletes from traditional tribal backgrounds and other remote, semi-urban locations and individual circumstances.
iii.Political Conviction: the applicant fails to define or explain his political conviction in his Facts and Contentions. The applicant says I contend that in my role as Project Coach, my 1^st major duty was to provide appropriate advice to Mr de Castella regarding the wishes of the indigenous community, including political conviction in relation to the requirement to fly the Aboriginal flag at important national and international sporting events.… The Aboriginal flag, as an official “Flag of Australia” is an accepted appropriate symbol of political conviction for Aboriginal people. In his submission received 12 October 2011, the applicant states: my political conviction as a white Anglo-Celtic person who knows the history of the Aboriginal flag is that Aboriginal people should be given every opportunity to choose their national flag of choice, or at least be given the option of having the Aboriginal flag on display on publicly filmed occasions such as this.

Race is defined in the Discrimination Act to include:
(a) colour, descent, ethnic and national origin and nationality; and
(b) any 2 or more distinct races that are collectively referred to or known as a race.
The term ‘race’ has not been the subject of any fuller or clearer definition in Australian courts and tribunals. The tenor of many decisions is, however, that a race must be an identifiable class of persons who share common ancestry or ethnic characteristics. The common factors may be of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence[12]. The legislation in each State and Territory contains a provision, generally referred to as the ‘characteristics extension’, which renders it unlawful to discriminate against people on the basis of a characteristic which appertains generally to people of their race, which is generally imputed to people of their race. The ‘characteristics extension’ broadens the scope of the prohibition against discrimination on a particular ground, such as race, by rendering it unlawful to rely on an actual or assumed characteristic of people of a particular race, rather than on race itself, and making adverse decisions about a person in one of the areas of public life covered by the legislation[13] [14].
[12] See Neil Rees ,Katherine Lindsay& Simon Rice; Australian anti-discrimination law, The Federation Press, 2008 at [5.1.4.8 – 5.1.4.10]
[13] Ibid at [5.1.4 .29]
[14] for the ACT this is found at Section 7(2) of the Discrimination Act 1991
Anglo-Celtic would fall within the above broad definition. It is arguable that the term ‘non-indigenous’ is too wide and undefined to fall into even this broader definition: the only common factor in a group of non-indigenous persons is that they are not indigenous.
Profession is defined in the Oxford English dictionary as: a paid occupation, especially one that involves prolonged training and a formal qualification. The Macquarie Dictionary defines profession as an occupation requiring advanced knowledge in some area. The Discrimination Act does not define profession and there are few cases on this point: in the ACT it has been recognised for instance that a sex worker is a member of a profession[15] and that social work is a profession[16]. It would seem then that, given this broad approach, Mr Bell’s work as a coach can properly be described as a profession. Mr Bell’s specific skills and coaching of indigenous athletes reflects his training, formal qualifications and experience.
[15] J v Federal Capital Press of Australia Limited [1999] ACTDT 2 (8 February 1999)
[16] Anderson v ACT Community Care [2004] ACTDT 3 (2 April 2004)
The Discrimination Act does not define political conviction. The meaning of political conviction has been considered in a number of cases. Political conviction refers to any belief or opinion concerning the nature and purpose of the state; the distribution and utilisation of state power; the interactions between the state and organisational movements, groups and individuals as they affect, or are affected by, the exercise of state power; or any belief or opinion concerning the distribution and utilisation of economic, social and cultural power in a society[17]. Many activities undertaken to advance the interests of indigenous Australians may be regarded as political activity. A personal belief that the Aboriginal flag should be on display whenever indigenous people are involved in public activity or, that indigenous people should have the option to choose their national flag, cannot be characterised as political activity.
[17] Croatian Brotherhood Union of W.A. (Inc) v Yugoslav Clubs and Community Associations of W.A. (Inc) (1987) EOC 92 – 190 at 76,815. As quoted in Neil Rees at et al, op. cit. at [5.6.8.2]
What is political must be determined objectively, taking into account the nature of the activity, conviction or belief. A belief is not political because a person says or thinks it is. However, there may be cases where a person considers that a belief is political because the society in general and other people who hold that belief, consider it to be so. This may be evidence that the belief is in fact political[18]. The Aboriginal flag has been recognised as an official flag in Australia since 14 July 1995. Therefore, the belief that the flag should be flown at particular times and in relation to particular occasions is not a political conviction in the sense that it does not concern a desire for alteration of the law or, a need for recognition of the flag by the Australian government. Mr Bell’s personal belief is not a political belief or conviction.

[18] Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44. As quoted in Neil Rees at et al, op. cit. at [5.6.8. 5]

Unfavourable treatment and discrimination

Throughout the applicant’s submission he alleges discrimination because of unfavourable treatment afforded to him on the basis of one of the above 3 attributes. Typically, in relation to the connection between the unfavourable treatment and the attributes, the applicant makes the following or similar statements: Mr de Castella and SmartStart discriminated against the applicant on the ground of my Anglo-Celtic race because no reasonable person could conclude that an indigenous employee with the same professional attribute would have been denied the same instrument of workplace rights and protections accorded to other project employees; Mr de Castella and Smart Start discriminated against me in that they did not provide me with the same conditions as other employees.
It is important to note that the ACT legislation imposes an objective test. This is not a comparison, it does not ask, “were you treated less favourably than others?” It asks, “ was the applicant treated unfavourably?” So the question is: was the treatment unfavourable? Was it unfavourable to the applicant, and was the unfavourable treatment afforded to the applicant on the grounds alleged, that is, because of his race, profession or political conviction? [19]
[19] See Edgeley v Federal Capital Press [2001] FCA 379 at paragraph 13
The ACT Discrimination Act does not define unfavourable treatment. Thus, it 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 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. The Discrimination Act is therefore about unfavourable treatment of persons and subjecting persons to disadvantage because of the attributes they possess[20].
[20]Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 (8 February 1996) at [22]
It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. ….[21]
[21] Ibid at [24]

…[T]central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of"[22]. The High Court has indicated that where a comparison is called for, the comparison exercise is not between persons with the same attribute, but between persons who exhibit the same conduct and requires determination of whether the persons were treated differently because of the attribute of one of them[23].
[22] Purvis v New South Wales (Department of Education and Training) (2003) HCA 62 at
[23] See generally the judgement of Callinan J in Purvis ibid.
The tribunal notes the comments made in Dutt v Central Coast Area Health Service[24] that the way a hypothetical comparator would be treated cannot be answered as a simple stand-alone question. The way a hypothetical comparator would be treated cannot be assessed separately from asking what the grounds for treatment of the applicant were. The only fact that it is possible to determine is the grounds upon which the applicant was unfavourably treated. Only when this is known can a tribunal assess whether a hypothetical comparator would have been treated similarly in the same circumstances.
[24] Op cit at paragraph 63
The Discrimination Act provides that a person discriminates against another person if the person treats the other person unfavourably because the other person has an attribute. The applicant must establish a direct causal link between the unfavourable treatment and the attribute of the complainant. It is not necessary that the attribute be the sole ground for the unfavourable treatment. In Director General of Education v Breen [1982] 2 IR 93, Street CJ stated: to amount to discriminatory conduct prohibited by the Act, the characteristic which will provide the ground must have an approximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative affect upon the decision to commit, or the committing of the act of discrimination [at 95].
In Waters v The Public Transport Corporation [1991] 173 CLR 349, McHugh J stated at para 9: The words "on the ground of the status or by reason of the private life of the other person" in s.17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. .....The words "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ("the victim").
In IW v The City of Perth 71 ALJR 943, the court said: all that need be shown is that the alleged discriminator has acted on the ground of, whatever the relevant ground is. That involves an objective characterisation of the discriminator’s ground for its conduct for which subjective intention can be relevant, but not decisive.
Section 8 of the Discrimination Act makes it necessary to establish a causative link between the conduct complained of and the adverse consequences for the person making the complaint. It is necessary, therefore, to seek out the true basis of the respondent’s conduct in so far as it may be found to constitute unfavourable treatment. It is not necessary to establish that the conduct complained of was intended or motivated by discriminatory attitude[25].

The video evidence

[25] Wang v ACT Department of Education, Youth & Family Services op. cit. at paragraph 93. See also Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349.

The applicant presented two videos as part of his case: the documentary produced by GoodOil Films entitled Running to America and an extract from the SBS program Living Black. The applicant said at the hearing on 25 June 2012, that these videos would form a crucial part of his evidence. The tribunal informed the applicant early in that morning’s hearing that the tribunal did not have a copy of Running to America. The applicant indicated that he believed he had supplied a copy of this DVD with his application filed on 18 November 2011. An inspection of the tribunal’s files during the luncheon adjournment revealed that the DVD could not be located, although the DVD of the program Living Black had been lodged and was available on the file. The applicant supplied a copy of the DVD Running to America after the conclusion on the hearing on 26 June 2012. A great deal of email correspondence was received by the tribunal from the applicant in relation to his assertion that the tribunal staff had lost the DVD.
The DVD was viewed by the tribunal on 30 August 2012. The applicant was directed to provide a timeline for the guidance of the parties and the tribunal in the viewing of this DVD. He elected to file the timeline provided as publicity material by the producers of the DVD.
The applicant submitted that the DVD would provide evidence that Mr de Castella ‘exhibits a history of misrepresentation, inconsistencies, omissions and outright lies in the primary facts of the case that is to be decided on the balance of probabilities’. During the viewing of the video, the applicant paused the video from time to time to make comments. Many of the comments were not directly related to the content of the video but were gratuitous or in the nature of editorial comment such as ‘I love these boys’, or ‘Joseph is disappointed I’m no longer connected with the project’.
The DVD was produced by a documentary film company. The makers were not available to be questioned about its content. The tribunal must be cautious in the use it makes of the information in the DVD Running to America. Little weight can be placed upon the content as either proving or disproving the assertions of the applicant.
Nevertheless, the tribunal notes:
a.there was nothing in the content of the DVD or the other evidence produced by the applicant which, when compared with the DVD, would support findings that Mr de Castella’s conduct was as described by the applicant. There was no evidence to establish that Mr de Castella exhibited ‘a history of misrepresentation, inconsistencies, omissions or outright lies’;
b.the credits at the end of the documentary acknowledged the contribution of the applicant;
c.the manner in which the interview with the young athlete is portrayed in the DVD ‘Running to America’ is in stark contrast to the interpretation of the incident presented by the applicant;
d.in relation to the New York marathon, it appears from the DVD that the runners were well supported by mentors, shadow runners, medical staff and Mr de Castella and that no detriment flowed to the indigenous marathon runners from the failure to provide a global roaming facility to Mr Bell.

The 1^st allegation of unfavourable treatment: a failure by the respondents to provide a written agreement of engagement or employment.

The applicant submits that he was treated unfavourably by the respondents’ failure to offer a written contract of employment at the beginning of his involvement in the Marathon Project. It is common ground between the parties that there was no written agreement between them. Mr Bell gave oral evidence that if he had been offered a written agreement it would have stated that he was to be remunerated and that he was employed full-time, for the duration of the Marathon Project. The respondents deny that the applicant was employed. Mr de Castella gave evidence that he always viewed the applicant as working on a volunteer basis.
In his oral evidence, the applicant conceded that Mr de Castella had made no mention of paying him except that it was agreed that the respondents would pay the applicant’s expenses. The applicant gave evidence that he had no permanent office space,that much of his work was done from home and that a phone and laptop had been supplied by the SmartStart. In cross-examination, the applicant conceded that he had not requested a written agreement at the commencement of his engagement in the project, nor had he asked for a written agreement in the period from April 2009 to November 2010. The applicant says he entered into a ‘handshake agreement’ with Mr de Castella based on many years of friendship.
The applicant produced letters from associates and acquaintances, which were generated for the purpose of the tribunal hearing. Some authors expressed shock that Mr Bell was not being paid; one stated that Mr Bell had told him at the beginning of the project that this was a long-term engagement and that he would be paid, but acknowledged that Mr Bell had said that he would not be paid until funding for a full-time coach position became available.
Mr de Castella stated that he had offered the applicant a small salary at the beginning of the project, but the applicant had refused this because it would decrease the Comcare allowance he was receiving. The applicant vehemently denied that he had ever made such a statement. Mr de Castella also stated that he had always regarded the applicant as a volunteer and conceded that all persons employed by SmartStart had written contracts of employment.
In emails sent during his involvement with the Project, the applicant made statements which indicate that he had no expectation of being paid a salary and regarded himself as a volunteer. This is in stark contrast to the applicant’s statements before the tribunal that he had been engaged as a permanent paid employee and that he had always expected to be paid. The applicant has offered no explanation for the difference between the statements he made during the time he was involved in the project and his contradictory submissions and oral evidence before the tribunal. In summary, the emails included the following:
i.Email from the applicant to Mr de Castella dated 30 July 2010 ‘I have done everything in my power in a spirit of goodwill, without any consultancy fee whatsoever, to ensure that your project Dream, Matt’s doco Dream and my Aboriginal sporting Dream comes to fruition. I have lost money.. [Emphasis added]
ii.Email from the applicant to Mr de Castella dated 2 August 2010 ‘: As someone who has put more than a year of enormous working hours on a voluntary basis into coming across town to office to work, …’ And in the same email ‘most professional coaches I know would not agree with the way you are handling this. Especially if they had volunteered their services in the first place.’ [Emphasis added]
iii.Email from the applicant to Mr de Castella dated 31 August 2010 “that’s why I agreed to help you and Matt. For free, no consultancy fee the only thing I asked – head coach pozzie (sic)’. [Emphasis added]
The applicant has not addressed the issue of why or how the lack of a written agreement was unfavourable treatment, except to say that in the written agreement he imagined he would have had substantial remuneration and been engaged for the entire length of the Marathon Project. There was no evidence that the respondents ever intended to engage the applicant on those terms. The applicant has failed to establish on the balance of probabilities that any disadvantage or unfavourable outcome was created by the lack of a written agreement. It is not enough for the applicant to assert that had he had a written agreement in the terms that he desired, he would have been better off. Indeed, up until the point where the relationship between the parties deteriorated, the ‘handshake agreement’ appears to have operated effectively. The tribunal is not comfortably satisfied that the lack of a written employment agreement amounted to unfavourable treatment.
Even were the lack of a written agreement to be regarded as unfavourable treatment, the applicant’s evidence is not sufficient to discharge the onus of proof in relation to the causal connection between the lack of a written agreement and his race or his profession. The tribunal is not satisfied on the balance of probabilities,that the respondents failed to offer a written agreement to the applicant because of his race or profession.

The 2^nd allegation of unfavourable treatment: Project coach remuneration

The applicant asserts the existence of an agreement that would entitle him to remuneration for his role in the Marathon Project. There is no direct evidence of the existence of such an agreement. The applicant did not give any evidence of ever having demanded either a written agreement or remuneration and did not address the tribunal about annual salary or hourly rates of pay. ACAT finds that the applicant was engaged in an informal verbal agreement and as a volunteer.
Nevertheless, the applicant argues that he expected to be offered payment for the work he was undertaking, once funding became available. To that end, he produced documents obtained under an FOI application from DOHA: these documents were budget proposals and grant applications prepared by the respondents. In the proposals there were various estimates of the cost to be incurred in relation to applicant’s presence at training camps. The applicant argues that since the respondents specifically outlined the required funds for those activities, there was an obligation to pay the amounts specified in the grant applications to him.
The applicant provided no evidence as to the requirements of DOHA in relation to the necessity for a recipient of grant funds to use those funds strictly in the manner set out in the grant application. In an effort to address this question the tribunal tried unsuccessfully to obtain information from the Department.
The respondents provided some brief information about final reporting and acquittal of the grant funds. The applicant asserts, and the tribunal accepts, that the tribunal cannot be satisfied on the documentary evidence before it that the funds have been properly acquitted and that the Department’s reporting requirements have been fulfilled. Equally there was no evidence upon which the tribunal could determine that there was any untoward conduct by the respondents. Mr de Castella gave evidence that SmartStart had complied with the Department’s requirements, and that the accounts relating to the Marathon Project, as well as SmartStart’s accounts generally had been independently audited. This evidence is only marginally relevant to the allegation of unfavourable treatment in relation to remuneration, and not probative of the existence of any agreement to engage the applicant on a paid basis once funds became available. The tribunal accepts, for the purposes of this matter, the evidence of Mr de Castella that the grants have been separately audited, and that the reporting requirements have been met. Any further enquiry about funding as requested by the applicant would not have provided relevant and probative evidence but would have caused considerable delay. The tribunal notes that the applicant put into evidence a document headed “The Marathon Project Final Report 2010/2011”. The applicant has not established that the failure to pay him, as a breach of an unproved agreement, amounts to unfavourable treatment. Mr Bell gave evidence of an expectation held by him that upon funds becoming available, he would be offered a further agreement with salary. The failure by the respondents to offer such further agreement with salary could constitute unfavourable treatment. However, there is no evidence that the failure to offer a further agreement was motivated by the applicant’s race or profession. In fact, the evidence before the tribunal indicates that the failure to further engage the applicant as coach was because of Mr Bell’s conduct from July 2010 when he refused to take part in an interview with one of the athletes and engaged in a heated argument with the documentary maker. There was ample evidence before the tribunal of a rapidly deteriorating relationship between Mr de Castella, the project manager, and Mr Bell as a result of Mr Bell’s conduct. The evidence does not show any causal link between the actions taken by the respondents in failing to offer a further agreement with salary to the applicant and the applicant’s race or profession. The applicant’s evidence is not sufficient to discharge the onus of proof.

The third allegation of unfavourable treatment: the interview of athlete incident

The facts relevant to this allegation are not substantially disputed. Mr de Castella indicated to Mr Bell his intention to interview one of the athletes and to discipline that athlete in relation to his lack of commitment to the project. Mr Bell set up the interview and SmartStart paid his airfare to attend. Mr Bell advised Mr de Castella that the interview should not be filmed as part of the documentary because a public shaming could have a damaging effect on the young athlete. Mr de Castella did not accept that advice. The athlete, his mother and his local mentor attended the meeting. Mr Bell refused to do so. Mr Bell gave evidence that the athlete, his mother and his mentor had advance information about the purpose of the interview and had realised that the athlete might be asked to leave the project during the interview. Mr Bell also gave evidence that neither the athlete nor his mother, nor his mentor, made any objection to attending the interview or to the interview being filmed. The interview appears in the documentary ‘Running to America’.
Mr de Castella’s evidence was that the applicant was required as part of his role, to attend the meeting concerning the performance of the athlete; that the applicant opposed the way that he thought the meeting would proceed and despite a direction that he attend the meeting after all expenses had been paid for him to go to Alice Springs, the applicant refused to attend the meeting. Further, the respondent said that while the meeting was taking place the applicant became involved in a heated verbal argument with a member of the film crew. Following the meeting Mr de Castella said that he attempted to arrange a meeting with the applicant to discuss the issues that had arisen. During this time the applicant sent a number of emails to other participants in the Marathon Project. One of the emails which was produced at the hearing was addressed to female staff in the Project office and included a chain of emails sent between the applicant and the documentary maker, many of which contain offensive and abusive language. The email says that the addressees should not tell anyone that they were sent copies of these latter emails and refers to the athletes as ‘me lovely little Abbadigine affletes of the desert’ and also refers to the ‘nebber nebber future’. In cross examination Mr Bell stated that he believed this language was appropriate in the circumstances.
The applicant contends that the failure by Mr de Castella to heed his advice caused him humiliation and ridicule and that it amounts to unfavourable treatment on the basis of his profession and race. In his original submission the applicant said: Mr de Castella and SmartStart discriminated against me because, in rejecting my professional and cultural advice, and in threatening me with detriment because of that advice, they made unlawful distinction based on my profession, causing detriment and, no reasonable person could conclude that they would have treated an indigenous employee with similar professional background and similar cultural understanding of the indigenous community in the same manner that they treated me as an Anglo-Celtic applicant had the indigenous employee provided the same advice. The applicant produced no evidence to support this latter assertion.
In oral evidence the applicant, when asked by the tribunal to outline the unfavourable treatment and to explain how it was based on his profession, made the following statements: so my argument in this is that I received unfavourable treatment simply because in adhering to my coaching ethics, which were a cultural component as well as being a professional coaching component, I was treated unfavourably because he was angry with me and because he was so disciplined, so – I don’t know how else to say it. That was unfavourable treatment, which was unjustified simply because no reasonable – no professional coach at my level would ever propose to film something like that. And, secondly, to impose discipline measure on me was unfavourable treatment it was all because I was the coach hired to do this particular job in this particular workplace so that’s it in a nutshell.

In relation to the issue of discrimination on the basis of profession the applicant said: Mr de Castella backed his own experience as a professional coach against mine in this particular workplace. That’s understood and I agree with you that there are professional differences. However in achieving the objectives of a benefit to Indigenous community, this was his treatment in making that decision to discipline me, treated me unfavourably in comparison with someone of his profession. Not just my profession, but his profession. He treated me unfavourably because this was entirely inappropriate behaviour for Mr de Castella to decide, in total ignorance of that environment, as a coach, in his profession he did not understand that environment.
The mere refusal to follow professional advice cannot by itself amount to detriment. The issue for the tribunal is not whether the advice was correct and appropriate, but whether the refusal to follow it is unfavourable treatment and whether it was based on the applicant’s race and profession. If it is accepted that the decision to discipline Mr Bell for not attending the interview with the young athlete amounts to unfavourable treatment, then, on the evidence before the tribunal, that decision was based upon Mr de Castella’s view that the applicant’s conduct in refusing to attend the interview and in confronting the filmmaker, and sending the emails as described above to other members of the project staff was ‘unprofessional, disgraceful’ and had the effect of undermining Mr de Castella’s position as director of the marathon project, and was harmful to the project as a whole.
The applicant throughout his submissions and evidence emphasised his special qualifications as both a coach and a person with a deep understanding of Aboriginal cultural requirements. In addition, the applicant throughout his submissions and evidence asserted that Mr de Castella had no coaching qualifications and little relevant experience. While it is not the role of the tribunal to determine whose professional coaching opinion ought to have prevailed in any situation where there was a conflict between the advice given by the applicant and the opinion of Mr de Castella, the tribunal notes that Mr de Castella could not fairly be described as lacking experience in marathon coaching. The respondent submitted that Mr de Castella is one of Australia’s most awarded and well-known long-distance runners. Mr de Castella has a Bachelor of Science degree (Biophysics and Instrumental Science). He was a director of the Australian Institute of Sport for five years and has a level 1 coaching accreditation with Athletics Australia. He has written a bestselling book on training for marathons, many articles and is a regular speaker on the topic. ACAT accepts that Mr de Castella is a qualified and experienced coach.
The applicant’s evidence is not sufficient to discharge the onus of proof. The tribunal is not satisfied on the balance of probabilities that the actions taken by Mr de Castella in refusing to follow the advice of the applicant, or imposing disciplinary action upon the applicant were motivated by the applicant’s race or by his profession.

The fourth allegation of unfavourable treatment: unfair dismissal

Immediately after the events in relation to the filmed interview with the young athlete, the relationship between the parties appears, on the evidence before the tribunal, to have rapidly deteriorated. From the applicant’s evidence it is clear that he expected to be disciplined by Mr de Castella upon return to Canberra: he stated on more than one occasion that he expected to be sacked.
Mr de Castella requested a meeting with the applicant to discuss whether the applicant would continue to have a role in the project, and if so what that would be. The evidence included email evidence produced by Mr de Castella and attached to his witness statement filed prior to the hearing. The evidence before the tribunal is that there were a key number of issues which Mr de Castella wished to raise at a meeting:
a.the applicant’s disagreement with Mr de Castella as to the advisability of filming the disciplinary interview with the young athlete and refusing to participate in that interview;
b.the argument that the applicant had with the documentary film producer;
c.the email correspondence between Mr Bell and the documentary film producer, the content of which was disparaging of Mr de Castella, critical of the film crew and of the project and was delivered in what could reasonably be perceived to be an offensive and belligerent tone using offensive and crude language;
d.an email sent to a number of employees of SmartStart, copying them in to the dispute: this email was also in what could reasonably be perceived to be a belligerent tone, containing offensive language critical of both Mr de Castella and the documentary film producer. The email contained crude language and in reference to the indigenous marathon runners, remarks which could reasonably be interpreted as patronising and racist;
e.an email by the applicant to Mr de Castella 29 July 2010 in which the applicant raises the issue of Mr de Castella apparently stepping into the role of producing training programs for the athletes. This email was copied to training mentors, the documentary producer and staff employed by SmartStart. Mr de Castella objected to the email being copied to that group of people, and to the tone of the email;
f.Mr de Castella had come to the conclusion that Mr Bell had not prepared adequate training schedules for the athletes and was concerned about this. In cross-examination Mr Bell conceded that he had not developed specific training programs for each athlete, except in a piecemeal way by emails. When asked whether he had produced spreadsheets with seven-day training programs for each athlete, Mr Bell replied ‘spreadsheets are white man’s outfit’.
There was a great deal of email correspondence between the parties in relation to the proposed meeting. Mr de Castella perceived that Mr Bell was being uncooperative and deliberately avoiding meeting with him. While the tribunal makes no conclusion as to whether that was the case, the oral evidence of the applicant as well as the tone of the emails sent by Mr Bell was such that the tribunal accepts that it was reasonable for Mr de Castella to reach this conclusion. For example, Mr Bell wrote ‘it’s not as if you’re going to do anything other than ream me a new private project sphincter anyway. Tell me something I don’t know!’ Further in an email sent on Sunday 1 August 2010 Mr Bell wrote at the end of a list of reasons why he can’t attend the meeting, ‘ I hope to get my washing done’. Mr Bell gave excuses for not attending at any of the times nominated by Mr de Castella, but failed to suggest alternative meeting times.
A continuing reason given by Mr Bell for his inability to attend a meeting on Monday 2 August was that he had a family member, in crisis, and coming through Canberra on that day. He believed it was imperative for him to meet with the family member and offer assistance.
Mr de Castella attended the meeting place, but Mr Bell did not. On 2 August 2010 Mr de Castella sent an email to Mr Bell, the athletes’ mentors, the documentary film producer and staff of both the film company and SmartStart which said: I regret to inform you all that I have just asked JB to no longer be involved in the coaching of the runners. Without going into a huge amount of detail, his position finally became untenable, culminating this morning when he failed to attend a critical meeting with me, to outline and define his role, responsibilities and conditions of the appointment. I have had a huge amount of respect and appreciation to John for many years, and am especially grateful for all he has done in the last year to assist in getting the marathon project to where it is now. He has had a long-standing dream of building indigenous distance running and has generously given for no pay, his time, passion, experience and knowledge to this project. All this as a volunteer, despite being offered remuneration…
The applicant lists seven areas of unfavourable treatment arising from the termination of his engagement with the project: that the respondent demanded an urgent meeting, inconvenienced the applicant, accused the applicant of damaging the project, gave no credit to the applicant for being a family friend and had not expressed a desire to sit down and discuss duties prior to this. These things do not amount to unfavourable treatment. However for Mr de Castella to insist on a meeting on a short timeframe in circumstances in which the applicant had consistently insisted that a stressful family matter meant that he could not attend a meeting on the day identified, and to then send an email announcing that the applicant would no longer be involved in the coaching of the runners to others at the same time as notifying the applicant, may reasonably be said to amount to unfavourable treatment.
The tribunal’s role is not to determine whether the conduct of the applicant justified termination of his involvement with the project. However, the tribunal notes the evidence that the relationship between the applicant and Mr de Castella had deteriorated and that he had formed the view that the conduct of Mr Bell was causing disruption to the athletes’ training and damaging the project overall. In such circumstances he would be entitled to terminate the services of a volunteer coach.
The applicant asserts that Mr de Castella would never have sacked an Aboriginal project coach in these circumstances or, at this particular point in the development of the indigenous marathon project and further, had Mr de Castella sacked an Aboriginal coach Mr de Castella would have been criticised by the Aboriginal community, had he sacked an Aboriginal coach for not attending a meeting (despite having a an explanation of a private family matter that demanded priority) there would have been uproar in the Aboriginal community. The applicant asserts that the unfavourable treatment was possible because the applicant was white. The applicant therefore submits that the unfavourable treatment accorded to him, in the timing and manner of his ‘sacking’ was on the true basis of his race and colour.
The tribunal acknowledges that the unfavourable treatment may arise for a number of reasons and be based on a number of attributes. If the unfavourable treatment is because of an attribute set out in section 7 of the Discrimination Act, as one of many or several reasons, then the unfavourable treatment will amount to discrimination.
The tribunal repeats its comments in relation to causation: the applicant must establish a causal connection between the unfavourable treatment and the attribute he asserts. If a comparison is to be made, it is to not to be between persons with the same attribute but between persons who exhibit the same conduct and to determine whether they were treated differently because of the attribute of one of them. The question then is whether any coach whose conduct was, in the view of the respondent, unprofessional and damaging to the project would have been treated by Mr de Castella in the same way? The applicant asks the tribunal to accept that the indigenous community would expect an indigenous coach whose conduct was as described above to be kept on as volunteer coach despite the manager’s view that their conduct was unprofessional and damaging to the project. The tribunal does not accept that argument.
Further, even if it was to be accepted by the tribunal that an aboriginal person would not be treated in this manner, it does not follow that as a matter of fact, a reason for Mr Bell’s sacking was that he was non-indigenous or was that he is white or that his profession is that of a coach.
The applicant’s evidence is not sufficient to discharge the onus of proof. The tribunal is not satisfied on the balance of probabilities that the actions taken by Mr de Castella terminating the applicant’s engagement with the marathon project was because of the applicant’s race or profession. The applicant has provided no evidence or argument to support his assertion that because he is not Aboriginal he has been discriminated against.

The fifth allegation of unfavourable treatment: unpaid employees and volunteers
The sixth allegation of unfavourable treatment: re-engagement as a volunteer coach
The seventh allegation of unfavourable treatment: the City to Surf race

These matters rely upon much same evidence and the tribunal deals with them together. Immediately after receiving the email described in paragraph 81 above, Mr Bell contacted Mr de Castella. After a series of meetings the applicant was re-engaged as a coach in the project. Mr Bell objects that from about 2 August 2010 Mr de Castella referred to Mr Bell as a ‘volunteer coach’ instead of as an unpaid employee. Much of the evidence that was offered in relation to the complaint matters one and two above, was re-canvassed by the applicant in support of this allegation. The applicant’s final submissions reassert that he had been permanently employed on a paid basis at the commencement of the project. Mr Bell appears to be concerned inordinately about the way in which members of the indigenous sporting community in the Northern Territory would view him if he was described as a ‘volunteer’ rather than an ‘unpaid employee’. As discussed above in relation to complaint one and two, and as determined in other fora, the evidence does not support the applicant’s continuous assertion that he was engaged as a permanent employee, or that there was any intention or agreement that he should be paid an amount beyond expenses.
The applicant asserts that describing his role as that of a ‘volunteer coach’ amounted to a malicious misrepresentation of his role within the project. The tribunal accepts, and the respondents conceded, that Mr Bell’s role was important and crucial to the establishment of the project. The respondents submitted that there was no unfavourable treatment in the title ‘volunteer coach’ being applied to the applicant’s role in the indigenous marathon project. That title accurately reflected his position and no detriment was placed on the applicant as a result. The tribunal accepts that, at least in retrospect, the title and description of his role was important to the applicant, however can find no unfavourable treatment in the use of the title.
Even if the use of the title ‘volunteer coach’ is accepted as unfavourable treatment, there is no evidence that the application of that description to the applicant’s role was because of any of the attributes identified by him. Rather, the evidence supports the view that the title ‘volunteer coach’ was applied to the applicant because it was an accurate description of his role within the indigenous marathon project.
The re-engagement of the applicant to a role in the indigenous marathon project was subject to some conditions imposed by Mr de Castella and SmartStart. The applicant describes these as disciplinary measures and asserts that they cumulatively amount to unfavourable treatment. The applicant asserts that the conditions were:
i.that the involvement of the applicant in the project would cease upon return from the New York marathon in November 2010;
ii.that the applicant would not be permitted to attend the City to Surf race in which the athletes were competing in August 2010;
iii.that the applicant would no longer be directly involved in the coaching of the Alice Springs-based athletes; and
iv.that the applicant was to take a two week break from involvement in the project from 3 August 2012.

The evidence before the tribunal which relates to the re-engagement of the applicant included:
i.a copy of an email sent by Mr de Castella to staff of the project sent on third of August 2010. This email said: good news! John and I have just had a good meeting and have sorted things out, man to man. I am pleased to say that he will be continuing as Marathon Project Coach. He is taking a week off to get over the flu and deal with some pressing family and personal things. Unfortunately this means he will miss the Sydney City to Surf this weekend. He is taking this break reluctantly (he is so committed to the runners), but it is important that he gets better, and as I am sure you all agree, family always comes first. I am sure he will be in contact with you all after his break…;
ii.a document headed The Marathon Project – Coach which included a job description and conditions of employment and the list of specific activities and duties. Both parties signed this document on or about 12 August 2010;
iii.an email from the applicant to the Mr de Castella dated 4 August 2010 in which the applicant says he is really disappointed that you told a fib to everybody about why I am not taking part in this week’s City to Surf. I thought you were going to tell everyone that it was your decision to ban me from going as a discipline measure, because that’s what it is… Rob, I am very uncomfortable with this. Why didn’t you just tell our people the truth; and
iv.a copy of an email dated 4 August 2010 sent by the applicant to members of staff of the project. In this email he reveals that he had threatened Mr de Castella that unless he was reinstated to the project he would contact the press and make a formal complaint to the Human Rights Commission under the racial vilification provisions of the Racial Discrimination Act. The email gives the impression that Mr de Castella agreed to reinstate the applicant as a direct result of those threats. The applicant also revealed that he had ‘been banned’ from going to the City to Surf race and from being involved in coaching activities for a period of time.
The applicant gave evidence that he would have preferred that Mr de Castella had revealed the real reason for his removal from the project to the athletes, the documentary team, the mentors and other staff involved in the project; namely that his performance had been unsatisfactory and that Mr de Castella regarded his attitude as unprofessional and his conduct as damaging to the project generally. The applicant submitted that if the truth had been told he would have had an opportunity to defend himself from those allegations. Further, the applicant objected to the information contained in the email informing the recipients as to his reinstatement and would have preferred that they had been told that he had been told to stay away from the project for a period of two weeks.
Mr de Castella gave evidence that he did not wish to reveal so much information as to the reasons for the applicant being removed from the project, but that there was a need to give some explanation and that was that it was no longer tenable for the applicant to continue his involvement as a volunteer coach. With regard to the email informing of Mr Bell’s reinstatement, Mr de Castella gave evidence that he believed it was not the business of other persons involved in the project to know why and how Mr Bell was being disciplined and that he believed the contents of the email the most appropriate approach.

The tribunal accepts that the manner in which Mr Bell was first removed and then reinstated to the project could be seen as denying him the opportunity to explain his conduct or defend himself in relation to the assertions of unprofessional conduct damaging to the project. Nevertheless, the tribunal also accepts that Mr de Castella was the project manager and that, in all the circumstances, it was not unreasonable for him to decide that the applicant should no longer be involved in the project. His reinstatement was a compromise; it was clearly understood that Mr Bell’s involvement with the project would cease immediately upon return from the New York marathon.

The tribunal finds that the reinstatement and the manner in which it was reported to others, does not amount to unfavourable treatment of the applicant. If however these circumstances did amount to unfavourable treatment, the applicant has not discharged the onus of proof in relation to the causal connection to the attributes he has identified. The tribunal cannot be satisfied that the respondent’s actions were taken because of Mr Bell’s profession, race or political conviction.
In relation to the ban on the applicant attending the City to Surf race, the applicant argued that it was in his best interests for Mr de Castella to be honest with everyone about the ban because it would give the applicant an opportunity to defend his position, especially with the athletes. In addition the applicant asserted that his non-attendance at this race was detrimental to the athlete from Kununurra because he had a particularly close bond with that athlete and the athlete especially relied upon him. The applicant asserted that being able to observe the athlete in this race was crucial to his further preparation for the New York marathon. No evidence was presented to support that claim. The applicant also complained that an article published in the Canberra Times on the day of the City to Surf concentrated and focused upon Mr de Castella’s role with the athletes and within the project and made no mention of the applicant.

The tribunal accepts that in the circumstances, the combination of the issues discussed in the paragraph above could be seen as reflecting adversely upon the applicant’s standing within the indigenous sporting community: that is, that his role in the project could be viewed by outsiders as less important that he asserts it was. Nevertheless a constant theme in the applicant’s own evidence was that his friends and colleagues in the indigenous sporting community knew of and appreciated his crucial role in the project. The applicant offered no explanation for this inconsistent evidence. Mr de Castella submits that media coverage is not within his control, and there was no evidence to suggest that he had deliberately excluded the applicant from media coverage.
Mr de Castella made a decision as project manager to exclude the applicant from participation in the project for a period of time. The applicant argues that this was not the most appropriate approach in all the circumstances. The respondents submit that the Indigenous Marathon Project was under their management and control, they were entitled to provide lawful directions, stipulate the terms on which the people involved would operate and take lawful steps to ensure the success of that project. It is axiomatic that any disciplinary measure based upon a reasonable interpretation of the circumstances may distress or upset the person who is the subject of that discipline. It does not follow that that disciplinary measure is unfavourable treatment in terms of the Discrimination Act.
If the conduct of the respondents in relation to these three areas of complaint was to be characterised as unfavourable treatment, there is no evidence to establish that the treatment was afforded to the applicant on the basis of his profession, race or political conviction. The applicant’s evidence is not sufficient to discharge the onus of proof.

The eighth allegation of unfavourable treatment: advice re treatment of athletes, the public argument, the photo at the grand final breakfast.

The applicant gave evidence and made submissions that he believed that one of the athletes who had an injured ankle ought to have been given physiotherapy treatment in Alice Springs in September 2010. At this time the four athletes were to participate in a 30 km run, which all parties concede was extremely important preparation for the longer marathon in six weeks. The applicant asserts that he advised Mr de Castella that the athlete should not run in the 30 km trial. The applicant asserts that Mr de Castella refused to allow the athlete to obtain physiotherapy treatment and that he ignored the advice of the applicant that the athlete should not run. Mr de Castella gave evidence that he believed that the injury was not a serious one and that the athlete ought to have been able to ‘run through the pain’. He further gave evidence that while he was aware of the injury, he did not recollect that the applicant had been so insistent upon treatment. Mr de Castella, as project director, made a decision that the athlete should not participate in 30 km trial. The applicant asserts that a refusal to follow his professional advice is unfavourable treatment. The tribunal does not find that refusal by a project director to follow the professional advice of a person engaged as a volunteer coach amounts to unfavourable treatment. Should the conduct of Mr de Castella be able to be characterised as unfavourable treatment the applicant has produced no evidence to establish the causal connection between that unfavourable treatment and his profession. The applicant concedes that Mr de Castella relied upon his own professional opinion rather than that of the applicant.
On the day before the 30 km run was to take place there was an argument between the parties in a public venue. The applicant says that Mr de Castella was making remarks derogatory of him to an international journalist and that he interrupted to set the record straight. Mr de Castella says that Mr Bell interrupted an interview with an international journalist in a very aggressive and confronting manner and that he believed that this was detrimental to the project and unprofessional. Mr de Castella admits that there was a heated argument in which he said to the applicant ‘if you don’t take your finger out of my face I will break it’. The applicant concedes that he replied ‘you couldn’t break my dick’. The applicant contends that Mr de Castella’s words amounted to threatening conduct and public humiliation, although he also concedes that Mr de Castella simply lost his temper. The applicant says that in arguing in public in this way, Mr de Castella was treating him unfavourably on the basis of his profession. An argument between the parties at a time when the relationship between them had clearly deteriorated, does not amount to unfavourable treatment of the applicant. Should the conduct of Mr de Castella be able to be characterised as unfavourable treatment the applicant has produced no evidence to establish the causal connection between that unfavourable treatment and his profession.
The applicant gave evidence that he had introduced Mr de Castella to a personal friend who was an indigenous healer. The indigenous healer attended the room which was occupied by the injured athlete and another athlete, a traditional man from the Top End. The film crew was in attendance at the session of healing and the session was filmed. The applicant objects to Mr de Castella organising this session: the basis of the objection is not clear but it appears to the tribunal that the applicant believed he was the only person qualified to make decisions where there may be issues of cultural significance. He asserts that neither the treated athlete nor the other athlete sharing the room were comfortable with the treatment. There is no evidence before the tribunal that either athlete or their families and other supporters made any complaint in relation to the traditional healing session. The tribunal does not accept the evidence of the applicant as to the comments of the second athlete. The applicant has produced no evidence to support his assertions as to the facts of this complaint. It appears that his overwhelming motivation in this instance is anger and frustration at having Mr de Castella take the initiative in an area which he believed was his exclusive purview. There is no evidence that he gave advice to Mr de Castella that the healing session was culturally inappropriate, there is no evidence that either of the athletes objected to the healing session and there is no evidence that Mr de Castella rejected or refused to take the advice of the applicant. No unfavourable treatment is made out.
Immediately after the 30 km trial the applicant, the respondent and the athletes attended a Grand Final Day Breakfast in Alice Springs. At the conclusion of that breakfast a newspaper journalist arranged for a photo of Mr de Castella, the athletes and the team manager to be taken. This photo was later published in the Alice Springs newspaper. The applicant was not included in the photo. On his own evidence the applicant was not aware that the photo was being taken, he was speaking to someone else at the time. There is no evidence that Mr de Castella deliberately excluded the applicant from the photo. No unfavourable treatment is made out.

The ninth allegation of unfavourable treatment: New York

On the evening before the New York marathon Mr de Castella posed the four athletes in front of a large Australian national flag displayed in Central Park. He addressed them in a motivational manner. The documentary crew filmed the address. The applicant alleges that asking for young indigenous athletes to pose in front of their national flag is unfavourable treatment of himself. Further, he argues that Mr de Castella’s failure to carry or display an Aboriginal flag offends his political conviction that the Aboriginal flag should have been displayed and filmed. Putting aside the tribunal’s view that Mr Bell’s personal belief is not a political belief or conviction; the failure by Mr de Castella to accept the advice of the applicant, with regard to the display of the Aboriginal flag does not amount to unfavourable treatment of the applicant. There is no evidence to support the applicant’s contention that Mr de Castella deliberately chose not to use the Aboriginal flag because of any attribute of the applicant.
The applicant was not provided with global roaming facilities on the phone supplied to him by the project while he was in New York. He alleges that this hampered his ability to monitor the athletes’ progress in line with professional coaching practice. He did not elaborate in his evidence to the tribunal as to how the lack of global roaming facilities so hampered his professional coaching practice. The evidence of Mr de Castella, which is accepted by the tribunal, is that the decision not to provide global roaming facilities to the applicant was based on budgetary considerations. Even if the absence of global roaming facilities could be characterised as unfavourable treatment, it was done for reasons of budget and not because of one of the attributes identified by the applicant.
The marathon team visited the Empire State building in New York and a team photo was taken. The applicant was not included in the photo. The applicant argues that this is further evidence of vindictive conduct on the part of Mr de Castella. Mr de Castella gave evidence that he did not know where the applicant was when the photo was taken and that there was no deliberate decision made to exclude him. The tribunal accepts that evidence.

On the last day in New York Mr Bell took free time to visit with a friend at the Brooklyn Bridge. An arrangement was made for him to be collected at a designated place and then driven to the airport for departure to Australia. The applicant was not collected and had to make his own way to the airport. He was extremely late in arriving at the airport and another public argument ensued between the applicant and Mr de Castella. Mr de Castella gave evidence that he had dispatched a driver to collect the applicant, but that the driver had been unable to locate the applicant. The decision was made to take the remainder of the team to the airport. Given that both parties clearly understood that the applicant’s involvement in the marathon project would cease upon return to Australia, the deteriorating relationship and the stress involved in trying to locate a team member who had almost missed the plane; it is not surprising that tempers flared. There is no evidence to support the applicant’s assertion that the public argument occurred because of his profession or race. The evidence is that Mr de Castella was distressed, worried and angry that the applicant had not arrived at the airport as arranged. The applicant was likewise distressed.

The tenth allegation of unfavourable treatment: the 8 HA interview

On 16 November 2010 Mr Bell was interviewed live on an Alice Springs radio station. During that interview he was asked why he had been sacked from the marathon project. He suggested that the journalist ask Mr de Castella. Mr de Castella replied to the journalist’s questions by email. His email referred to the applicant thus: he made a significant contribution to the project, especially early on, however the real driving forces have been GoodOil Films, SmartStart for Kids, DOHA, the AFP and NT Police and Asics, none of whom he has been responsible for. The applicant contends that this statement falsely diminished his contribution to the project in the eyes of the Alice Springs public. Mr de Castella submits that he merely described the significant contribution made by the applicant and acknowledged that there had been other driving forces. The tribunal accepts the evidence of Mr de Castella. No unfavourable treatment has been made out. Even if the conduct was characterised as a deliberate slight upon the professional contribution made by the applicant to the project, there is no evidence presented by the applicant that the conduct occurred because of the applicant’s profession or race.

The eleventh allegation of unfavourable conduct: withdrawal of the offer for payment of a per diem allowance.

The evidence before the tribunal was that after the return from New York the applicant continued to contact Mr de Castella. Approximately 6 weeks after the return to Australia and the subsequent cessation of the applicant’s involvement in the project a meeting between the parties was arranged. At that meeting the respondents presented a document which contained an offer to pay the applicant a volunteer allowance of fifteen dollars per day for his involvement in the project. This amounted to a sum of $4942. The respondents required the applicant to sign a document releasing SmartStart from any further obligation. The applicant gave evidence that he refused to sign the document because it described his position as that of a volunteer rather than an unpaid employee. The document was not signed and the offer of payment contained within it lapsed. This has been the subject of other proceedings before ACAT and was resolved by a decision of this tribunal.

Other matters

The applicant’s submissions and arguments were presented in three distinct phases:
1.his initial multiple submissions to the tribunal (including the original complaint to the Human Rights and Discrimination Commissioner), which were received prior to the hearing;
2.the documentary and oral evidence presented during three days of hearing (including the viewing of the documentary ‘Running to America’ and the SBS program ‘Living Black’); and
3.final written submissions.

The initial submissions made by the applicant make bold assertions of unfavourable treatment, but include highly subjective assessments of the situation. The tribunal accepts that much of the time the applicant found the manner in which he was dealt with by Mr de Castella and SmartStart to be distressing. The existence of upset or distress does not by itself mean that the conduct which caused such upset or distress was necessarily unfavourable. The initial submissions of the applicant identified three attributes discussed above but failed to make any causal connection between what the applicant characterised as unfavourable treatment and those attributes.
The applicant’s narrative evidence was often rambling, there was a great deal of overlap within the evidence relating to each ground of complaint and much of the evidence was not relevant. The applicant was not able to state why conduct he complained of was unfavourable and was not able show a causative link between the conduct complained of and the attributes he had identified.
A common theme in the grounds of complaint was that no indigenous coach would have been treated in the same manner. This comparison did not serve to explain what made the conduct unfavourable or constituted the alleged discrimination. To say I am unhappy about the way I have been treated, I am a white coach and therefore I have been discriminated against on the basis of my colour and profession, does not establish discrimination. The tribunal finds that in relation to the allegations of discrimination the applicant has failed to establish on the balance of probabilities that any of the conduct he complains of was because of his attribute of profession. The tribunal notes its earlier comments in relation to race and political conviction, but nevertheless has examined each area of complained of conduct and determined that none of the conduct complained about occurred because of the applicant’s Anglo Celtic race, non-indigenous ‘race’ or political conviction.
Nevertheless ACAT, in view of the remedial nature of the Discrimination Act afforded the applicant an opportunity to present his case in full[26]. ACAT allowed the applicant to put forward evidence and information which was neither probative nor relevant in the interest of providing the applicant an opportunity to present his case in a manner which would cause least disruption to his prepared evidence, arguments and assertions.
[26] Firestone v Australian National University [2009] ACTDT 1 (9 June 2009)
Many of the assertions of Mr Bell may reasonably be described as a retrospective reconstruction of events. He has been vigorous in his pursuit of Mr de Castella in this and other litigation. Often he made allegations as to the motive for the conduct which he attributes to Mr de Castella in his final submissions Mr Bell asks the tribunal to conclude that Mr de Castella ‘grasped an opportunity to get rid of me without pay from the project when he perceived that my usefulness to him was expended’. Mr Bell has not produced any evidence from which the tribunal could draw such a conclusion.
Throughout the hearing the tribunal explained to the applicant the need to make a causal connection between the attributes and the unfavourable treatment. The tribunal often paused to ask the applicant to attempt to make that connection. In many instances the tribunal explained to the applicant that even if the complained of conduct amounts to unfavourable treatment he had not discharged the onus of establishing on the balance of probabilities that that treatment was because of one of the attributes. On more than one occasion the applicant conceded that he would have to make that causal connection, and that it would be difficult. On 26 June 2012 the applicant commented Whether or not I can get a causal link I don’t care any more….. When asked by the tribunal to connect the evidence he was giving as to the conduct of Mr de Castella to the attributes he had identified and to make sure that in his submissions he drew the causal link for the benefit of the tribunal Mr Bell replied: I realise that’s always been my problem.
The applicant’s final submissions acknowledge the need to establish a causal connection between the end of treatment and the attribute. The applicant seeks to develop a motive for the respondent’s conduct but fails to make the necessary causal link.
Much of the evidence presented other orally or in written form by the applicant is subjective, self-serving or hearsay. The applicant has produced no evidence to support the particular cultural requirements he asserts are crucial in indigenous sporting culture; he has produced no witnesses to support his evidence of others being surprised, distressed or disadvantaged. There is no evidence to support the applicant’s assertion that the conduct of Mr de Castella prevented him from properly preparing the athletes or that the athletes were not properly prepared. Indeed, the evidence is that the athletes performed satisfactorily in races leading up to the marathon, that their injuries were appropriately dealt with and that they each completed the New York Marathon. In part the applicant explains his decision not to call supporting witnesses by saying that he did not want to involve the athletes or his friends in the stress and unpleasantness of litigation. The tribunal does not draw any inference adverse to the applicant from his failure to call witnesses who may have confirmed his version of events. However, the absence of any evidence which would support his assertion that no indigenous person would have been disciplined or, had his engagement with the project terminated in like circumstances, is significant.

Conclusion

ACAT is not satisfied on the balance of probabilities Mr de Castella or SmartStart have committed any unlawful act relevant to the Human Rights Commission Act or the Discrimination Act.
………………………………..
Ms J Lennard- Senior Member

Appendix 1: Summary of reasons relating to the application made by the applicant, Mr Bell, that the senior member disqualify herself.
Background

On 25 June 2012 the tribunal made the following statement: just before we begin, I need to give you some information, and this is really for Mr Bell’s benefit. Mr de Castella’s daughter… and my daughter … were at school together at … . We didn’t visit each other socially or have dinner together or anything like that, but they did stay over in each other’s houses and I do recall meeting Mr de Castella and his wife at a performance of a play when [my daughter] had the lead role…. I’ve discussed this with General President Crebbin. She says that this is not a material declaration that I need to make. But I think in the interest of fairness and if you have any objection to me on that basis, then you need to say so now. Mr Bell indicated that he had no objection.
After the completion of hearings on 26 June 2012, Mr Bell wrote a series of letters to the tribunal. The first dated 26 June 2012 was handwritten and addressed to Senior Member Lennard. In this letter, which covered a range of issues the applicant stated: on day one I made a choice not to object to your hearing of DT 11/27 and DT 12/01. He objected to the approach taken by Mr Robens in cross examination, he objected to some processes adopted by the tribunal, he addressed some of the evidence and he further noted that his ability to concentrate and stick to due process had fallen away very badly during his cross examination of the respondent. He also alleged that the respondent and the senior member had engaged in friendly conversation and that the respondent had winked at the senior member. At the completion of that letter the applicant stated I would like to say to you, Ms Lennard, that I appreciated the opportunity to present my case. You were pleasant and I appreciate this quality in the process. I just wish I had never agreed to work for Rob de Castella in the aboriginal community. That letter plus a number of emails received over the ensuing fortnight were combined in a bundle and treated in total as an application for disqualification of the senior member.
The respondents made brief submissions along the following lines: they denied each of the allegations currently being made by Mr Bell. Mr Bell was provided every opportunity to test the evidence and put his case. The fairness of the hearing is evident in the day and a half that he took to put forward his evidence. The time allowed for the respondents to put their evidence was dramatically reduced. They agreed that it was not material that Ms Lennard’s daughter attended school with Mr de Castella’s daughter many years ago.
On 23 July 2012, Mr Bell gave evidence that he had felt constrained in relation to the giving of evidence in relation to issue one of his complaint about the time that he had coached Mr de Castella’s daughter as a teenager in the late 1990s. Mr Bell also made submissions in relation to the tribunal member’s failure to disclose that she had been a teacher at the particular school. This was because Mr de Castella’s sons were pupils at the particular school, apparently at the time that the senior member was teaching there. This was on the basis that the respondent is a “high profile Australian”. Mr Bell noted that he had made a conscious decision not to object to the senior member hearing the matter when the tribunal afforded him that opportunity.
Mr Bell gave further evidence that the tribunal’s decision not to require the parties to give evidence on oath gave rise to an apprehension of bias. Mr Bell asserted that the apprehension of bias arose because the tribunal had reminded him that he needed to tell the truth to the tribunal, but had not given the same reminder to Mr de Castella. Further Mr Bell objected to the manner in which the tribunal had conducted the hearing: in particular Mr Bell was cross-examined during his lengthy evidence, in regards to each ground of complaint at the completion of his evidence in relation to that ground. Mr de Castella gave his evidence in one afternoon and cross examination was permitted from time to time as the overlapping matters were completed.
The tribunal notes that the application for the senior member to disqualify herself extended far beyond the apprehension of bias. Mr Bell addressed matters of process and on several occasions foreshadowed that he expected an adverse decision. The tribunal further notes that the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides at section 23 that the tribunal may decide its own procedure in relation to a particular matter in a hearing or a step in dealing with an application if no procedure is prescribed under the Act or an authorising law for the application of the rules. The procedures of the tribunal are required to be as simple, quick, inexpensive and informal as is consistent with achieving justice. Therefore the tribunal may decide not to require sworn evidence, to remind people to tell the truth, and to determine the manner in which cross-examination will occur. The tribunal notes that at the end of the second day of hearing (26 June 2012) the applicant was considerably distressed and that stress, which had been evident during the two-day hearing was a factor taken into account by the tribunal in determining what process to follow. The tribunal further notes that Mr Bell requested and was granted several short adjournments during the course of the hearing.
In determining the issue of disqualification of the tribunal member on the grounds of apprehension of bias the tribunal considered the bundle of documents collated by the General President and sent to the parties. These were mostly emails received from Mr Bell and taken together were treated as written submissions in relation to this application.

Decision

The following paragraphs summarise the ex tempore decision delivered by the senior member on 23 July 2012:
a.In determining disputes, the tribunal is under a duty to comply with legal requirements of procedural fairness and procedural fairness can be defined as the duty to act fairly. It is synonymous in law with the term natural justice and that conveys the notion of flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case [27]. There are two rules of procedural fairness: the hearing rule, which provides that, “a person or body having power to decide matter must give the affected person an opportunity to state their case”, and the bias rule, which states broadly that, “the decision maker must be impartial and have no personal stake or interest in the matter to be decided”[28].
[27] Kioa v West (1985) 159 CLR 550 at 585
[28] ibid at 584
b.The ACAT Act at section 7 sets out the principles to be observed by tribunal members in applying the Act: in exercising its functions under this Act, the tribunal must (a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and (b) observe natural justice and procedural fairness.
c.The bias rule is an essential requirement of administrative justice and it is that the decision maker should be impartial and disinterested so that he or she is open to persuasion and able to judge the case on its merits. Bias means a predisposition to approach the issues in the case otherwise than with an impartial or unprejudiced mind[29].
[29] Re JRL; Ex parte CJ L (1986) 161 CLR 342 at 352
d.The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial or unprejudiced mind to the resolution of the issues[30]
[30] Ebner v The Official Trustee in Bankruptcy (2000) 205
e.In Webb v R[31] the High Court identified four main categories of cases where a decision maker is disqualified by reason of the appearance of bias:
[31] (1994) 181 CLR 41 at 74 – 75
i.a disqualifying interest, where the decision-maker has a pecuniary or other personal interest in the decision outcome;
ii.disqualifying conduct, where the decision-maker’s conduct in the course of the proceedings or outside the hearing gives rise to an apprehension of having prejudged the issue to be decided;
iii.disqualifying association, where the appearance of bias arises from the decision-maker’s association or relationship with the person interested in the proceedings; and
iv.disqualification by extraneous information, where the decision-maker has knowledge of some damaging information obtained outside of the proceedings.
f.The tribunal recognises a fifth area: conduct in the hearing. A reasonable apprehension of bias may arise from hostility, sarcasm or aggression shown by the tribunal member towards a party, or the representative or witness for a party in the course of the hearing. A tribunal may need to test the evidence by questioning witnesses and directing their attention to any inconsistencies in the evidence. Where parties are self-represented, care should be taken to ensure that they are assisted, guided not intimidated or stressed[32].
[32]See for more information, the Council of Australasian Tribunals, Practice Manual for Tribunals
g.The grounds of Mr Bell’s application fall within the third category identified by the High Court: personal association. Both the Council of Australasian Tribunals manual and the textbook Justice in Tribunals[33] say personal friendship with a party is a compelling reason for disqualification but mere acquaintance is not. Further as a general principle, there is no disqualification where disclosure of the interest is made and the parties do not object to the decision-maker proceeding to hear and determine the case. I note that there is no common law duty to disclose facts and circumstances that would not legally disqualify the member from hearing the matter. However there are reasons why members might disclose a matter, even if they do not think it justifies their disqualification and amongst those reasons is one that is relevant here and that is that a failure to disclose might be one of the circumstances which could give rise to a reasonable apprehension of bias.
[33]JRS Forbes, Justice in the Tribunals, 3rd edition, The Federation Press, 2010
h.Turning to Mr Bell’s specific issues, the first was the relationship between my daughter and the respondent’s daughter that was revealed at the very beginning of the hearing. No objection was taken then or during the course of the proceedings. Mr Bell had said in his written submissions prior to the 23 July hearing and also in his oral submissions at that hearing, that he had made a conscious decision not to object. The tribunal notes that that falls into the general principle outlined above.
i.In relation to the question of teaching at the school: it was not revealed. It was not revealed because of the fact that it reveals no actual or apprehended bias.
j.The tribunal notes that prior to commencing sitting on this matter, the tribunal member told the General President that her daughter and the respondent’s daughter had been friends at school. The General President formed the view that this was not a matter which section 50 of the ACAT Act regarded as material, nor was the tribunal member obliged to reveal it to the parties. However the General President and the tribunal decided that it should be revealed because if it should come to light later, it would at least give Mr Bell an apprehension of bias in that he would wonder why it was not revealed.
k.The mere fact that a tribunal member reveals something does not mean that the member thinks it gives rise to a conflict of interest. It means, in many cases, that the member believes the parties ought to have that knowledge so that any appearance of bias is dispelled. Mr Bell made a conscious decision not to object to the senior member hearing the matter, nor did he raise any specific objection during the course of the hearing conducted on 25 and 26 June 2012
l.As to the general apprehension of bias because the respondent, Rob de Castella is a high profile Australian and Mr Bell feels this will mitigate against his being given a fair hearing, the tribunal acknowledges that the respondent is a high profile Australian. However this does not give rise to specific bias and nor did the applicant make any specific reference to this during his submissions. Part of the function of any court or tribunal is to put aside the public reputation of a person and to make a decision on the facts.
m.The decision as to whether to disqualify himself or herself from a hearing is a matter for the tribunal member. The decision should be made at the earliest opportunity. The Council of Australasian Tribunals Practice Manual notes that a member is not automatically obliged to stand down when objection is taken following disclosure. The fact that one or more of the parties has a suspicion that the member is biased does not satisfy the test for apprehended bias. The test is an objective one, requiring consideration of what a fair-minded observer would reasonably apprehend. The member should consider all the circumstances, including the stage of the proceedings at which the objection is taken and any cost of the delays that might result. There is, at all stages, a requirement to balance the interests of each party.
n.In this matter, the objection was not made at the beginning of the hearing but after the hearing was closed: after all evidence had been presented and tested by the parties. The hearing was conducted over two consecutive days and each party has expended time, effort and money in preparing to come here and these are considerations that must be taken into account.
o.Further, Courts have cautioned tribunal members not to acquiesce too readily to applications for them to stand down, since this can cause hardship to parties, particularly if the matter is part heard. To stand down where there are no legal grounds for disqualification may even amount to an abdication of the member’s duty[34].
[34]Re Polites; ex parte Hoyts Corporation (1991) 173 CLR 78
p.In Veness v Medical Board of Australia (Occupational Discipline)[35], two key points were made: the tribunal member should not be overly ready to recuse themselves on the grounds of bias; and, that where an apprehension of bias is asserted, that must arise from a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice and not from an apprehension that the judicial officer may decide the case adversely to one party. The tribunal notes that Mr Bell, on more than one occasion, expressed the view that he did not expect to be successful in this matter.
[35] [2011] ACAT 55
q.In summary, the tribunal finds that the test as set out by the High Court in Ebner has not been satisfied by the applicant. This is not a subjective issue. Mr Bell had a chance to object, and he did not do this in relation to the earlier disclosed matter. In this hearing, and in his written correspondence, he has indicated that he believes he has little chance of success. That belief, even if genuinely held, does not amount a ground to establish bias on the part of the tribunal member.

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	DT 12/01 & DT 11/27
PARTIES, APPLICANT:	William John Bell
PARTIES, RESPONDENT:	Robert De Castella
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT
TRIBUNAL MEMBERS:
DATES OF HEARING:
PLACE OF HEARING:

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

| 236.

CLR 337 at 344 – 45