Dates (Worimi) v Commissioner of Police; Dates (Worimi) v Director General, NSW Land and Housing Corporation as agent for the Aboriginal Housing Corporation

[2005] NSWADT 221

CITATION:	Dates (Worimi) v Commissioner of Police; Dates (Worimi) v Director General, NSW Land and Housing Corporation as agent for the Aboriginal Housing Corporation [2005] NSWADT 221
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Dates known as Worimi FIRST RESPONDENT Commissioner of Police SECOND RESPONDENT Director General, NSW Land and Housing Corporation as agent for the Aboriginal Housing Corporation
FILE NUMBER:	041055, 041056
HEARING DATES:	8/11/2004 & 9/11/2004
SUBMISSIONS CLOSED:	01/28/2005
DATE OF DECISION:	09/30/2005
BEFORE:	Rice S - Judicial Member; Monaghan-Nagle L - Non Judicial Member; Weule B - Non Judicial Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Amendment Act 1997
CASES CITED:	Dutt v Central Coast Area Health Service (2002) NSWADT 133 King v Meilman East (2004) NSWADT 46 Seltsam v McGuiness (2000) 49 NSWLR 262
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT R M Henderson, barrister SECOND RESPONDENT J M Fitzgerald, barrister
ORDERS:	Matter 041055; 1. The complaint is dismissed; 2. Each party to pay their own costs; Matter 041056; 1. The complaint is substantiated; 2. The respondent is to pay compensation to the complainant of $5,000; 3. Each party to pay their own costs

1 For the reasons given below, the complaint against the Police is dismissed, while the complaint against Housing is substantiated. This means that Mr Dates – Worimi – is successful in his discrimination complaint against Housing but not against the Police.

REASONS FOR DECISION

What happened

2 The applicant, Mr Gary Dates, is an aboriginal man known as Worimi. At the outset of the proceedings he asked to be called Worimi, and all parties and the Tribunal complied with this request.

3 Worimi was a tenant of the Aboriginal Housing Office, renting premises at 13 Carr Place Beresfield. On the evening of 15 May 2001 and again during the day of 16 May, officers of the Beresfield Police Station attended Worimi’s premises in response to a telephone call from neighbours in Carr Place.

4 It is difficult to determine the precise order and nature of events on 15 and 16 May. Worimi gives a detailed account of the events, as do police officers and members of Worimi’s family. Worimi and the police officers gave oral evidence in addition to their statements. The evidence relates to what were fraught and stressful circumstances; it is unsurprising that there were inconsistencies in the evidence. The inconsistencies are well within the bounds of what might be expected of evidence in the circumstances. There are no substantial relevant inconsistencies or occasions when a witness might reasonably be expected to have had a more clear or accurate memory than they showed in their evidence. The account we give of the events simply serves the purpose of setting the context for Worimi’s complaints. Where it has been necessary to make findings that resolve conflicting evidence we indicate that that is the case.

5 When Senior Constables Miles and Hopkins arrived in Carr Place on 15 May a fire was burning on the lawn in front of Worimi’s premises and Worimi was sitting around it with members of his family. The police officers asked Worimi to put the fire out, and an argument took place. The argument escalated to physical violence. A member of Worimi’s family was arrested. Worimi was in need of medical attention due to a heart condition and was taken to hospital where he was assessed and released.

6 On the following day, 16 May, the police again attended Worimi’s premises. Late in the morning Senior Constables Morales and Woods found the fire from the previous day still smouldering, and used a fire extinguisher on it. A dispute resulted, involving Worimi’s children and grandchildren. Worimi joined his family in a lengthy and heated verbal exchange with the police officers. At the time the police officers had dealings with members of Worimi’s family that are not the subject of these proceedings. Later the same day Senior Constables Baker and Woods attended Worimi’s premises in the company of Mr Ray Craigie, a police aboriginal liaison officer, to discuss matters with Worimi and to serve him with a court attendance notice.

7 As a result of the events of 15 May, Worimi was required to attend court to face charges of offensive language, intimidating a police officer, unlawfully placing a fire, and failing with a direction to put the fire out. He was convicted of these offences, but was successful on appeal, when the convictions were set aside.

8 As a result of the events of the morning of 16 May, Worimi was required to attend court to face charges of offensive language, offensive behaviour, and intimidating two police officers. He was convicted in his absence and he appealed. On appeal Worimi was in large part successful: the convictions for offensive behaviour and intimidating the police officers were set aside, while the charge of offensive behaviour was found to be proved.

What is complained of against the police

9 Worimi complained to the Anti-Discrimination Board that the police had discriminated against him on the ground of his race in the provision of services, specifically the manner that they dealt with him on 15 and 16 May, and their subsequent pursuit of criminal charges against him. He also complained that in their dealings with Worimi over a period of time the police had discriminated against him in the provision of services in a number of ways on the ground of his race.

10 In his complaint Worimi referred in some detail to conduct of the police that related to members of his family. He is clearly very concerned about the conduct of the police towards his family, and in places his complaint covers that conduct exclusively. Worimi did not make those complaints on behalf of the members of his family and the family members were not party to the proceedings. Worimi cannot make that conduct by the police the subject of this inquiry, and we do not deal with that conduct. Our inquiry and this decision are limited to the conduct of police, alleged by Worimi, that relates to him.

11 We must decide whether, by act or omission, the police treated Worimi less favourably than they treated, or would have treated, a non-aboriginal person in the same or materially similar circumstances (s7(1)(a) Anti-Discrimination Act 1977) in the terms on which it provided Worimi with its services (s19(b) Anti-Discrimination Act 1977).

Events of 15 and 16 May

12 In relation to the events of 15 and 16 May Worimi says that a non-aboriginal person in the same circumstances would not have been treated in the same way.

13 It is clear that Worimi believed the police requests to put the fire out were unreasonable. This disagreement escalated to an argument that became physical. Whether the police acted appropriately, as police, in managing the situation is not relevant to us, except to the extent that whatever they did was done on the ground of Worimi’s aboriginality.

14 Apart from the fact of Worimi’s aboriginality, there is nothing in the circumstances to indicate that the police acted as they did because Worimi was aboriginal, or was different from the way they would acted had he not been aboriginal.

15 As it transpired, the convictions relating to the lighting of the fire were set aside on appeal. But the evidence does not satisfy us that the insistence of the police that the fire be extinguished was on the ground, even in part, of Worimi’s aboriginality. The question to ask is: would a non-aboriginal person have been asked to put out the fire in the same circumstances? We can only speculate whether they might have been; there is no evidence that can satisfy us one way or the other.

16 Similarly, although the assault charge, the offensive conduct and language charges, and one of two charges of intimidating police all failed on appeal, there is no evidence from which we can infer that the laying of the charges, or the conduct of the police towards Worimi at the time, were on the ground of Worimi’s aboriginality. Again, we can only speculate whether a non-aboriginal person would have been spoken to, physically handled and charged as Worimi was in the same circumstances.

17 Taking account of the notorious difficulty that any person complaining of race discrimination has in proving that their race was a ground for another’s behaviour (see eg Hunyor, J, Skin-deep: Proof and Inferences of Racial Discrimination in Employment (2003) 25 Syd LR 535), and having regard to our powers under s73(2) and (3) of the Administrative Decisions Tribunal Act 1997, we would look quite widely for evidence that indicated a propensity by the police officers concerned to act, or be inclined to act, unfavourably to an aboriginal person on the ground of their aboriginality. There is no evidence available to us that gives such an indication.

Police failure to investigate

18 Further in relation to the events of 15 and 16 May, Worimi complains of the failure of the police to properly investigate the circumstances giving rise to the charges against him, saying in his letter of complaint “police are only taking witness statements from people in the street that would support police charges against me and my family; I believe that by police not asking all the tenants of Carr Place Beresfield is denying me justice and my rights to a fair and honest trial as an aboriginal person”.

19 Worimi says that Ms Joy Baldwin was available to give evidence that supported his version of events, but the police refused to take a statement from her when she approached them on both 15 and 16 May.

20 Ms Baldwin provided a statement and gave evidence. Her evidence is that in Carr Place she approached a police officer – whose name and identity she cannot recall – offering to tell them what she saw had happened. She says that she was rebuffed. The evidence of the police is that they do not recall being approached by Ms Baldwin.

21 It is submitted for the police that Ms Baldwin’s evidence is unreliable, solely on the basis of an aspect of the detail of her recollection of events on 16 May. The part of the evidence relied on in that submission does not purport to be a comprehensive account of what happened on the day; it is merely an observation by Ms Baldwin of something she saw. There is no reason to doubt Ms Baldwin’s evidence on that basis.

22 Neither Senior Constable Hopkins nor Senior Constable Miles could recall being approached by a woman offering to make a statement. Senior Constable Wood denies that he had a conversation with a woman on 16 May. Accepting this evidence, it remains possible that Ms Baldwin approached either Senior Constable Hopkins or Senior Constable Miles.

23 We accept the accuracy of Ms Baldwin’s evidence. Her evidence is internally consistent, and is consistent with the many accounts of how events unfolded on 15 and 16 May. That she approached a police officer is not inconsistent with the evidence of the police officers.

24 Although it is arguable, this failure by the police to interview an apparent witness could be said to be a failure to properly investigate the circumstances that gave rise to the charges against Worimi. If so, a finding that that failure was on the ground of Worimi’s race is dependent on an inference to that effect being drawn from the circumstances as there is no direct evidence of the ground on which the police did not respond to Mrs Baldwin’s approach.

25 We are unable to draw that inference from the circumstances. The police had a discretion as to how they would manage the situation on 15 and 16 May, and as to how they would proceed in relation to the charges. In one respect they exercised that discretion in a way that was favourable to Worimi, in that they did not arrest him at the time but later issued him with a court attendance notice. The fact of Worimi’s aboriginality is not enough alone to support the inference that the police investigation was inadequate because of his aboriginality.

Police excessive force and numbers

26 Further in relation to the events of 15 and 16 May, Worimi complains of use by the police of excessive numbers and force, saying in his letter of complaint “police are coming to my home in carloads ... the night of 15th May and again the police came in carloads ... we were all sitting around the campfire ... it was a quiet and peaceful night no arguing or fighting ... (16 May) Ron Baker pulled up in front of my house with 3 car loads of police”.

27 From Worimi’s perspective the numbers of police officers who attended, on both 15 and 16 May, appeared excessive. He knew that there had that day been another incident in a running dispute with his neighbours, and that he was merely sitting down with his family around a campfire. That did not, in his view at the time and since, warrant the police attending in numbers if at all.

28 The evidence satisfies us that, from the police perspective, the situation they believed existed warranted their response. We are satisfied that Worimi’s aboriginality was not a factor in their assessment of the situation, except to the extent that it may have operated favourably to Worimi as we describe below.

29 On 15 May the police were called to attend what was described on their system as a “brawl – about 12 people throwing rocks and armed with sticks”. Although five vehicles responded to the call, the first vehicle that arrived called off the others; only Senior Constables Miles and Hopkins attended Worimi on that date.

30 On 16 May, in light of the altercation between police and Worimi and his family the day before, Senior Constables Woods and Morales asked for back up, and they were joined by two detectives. This is not in our view excessive in the circumstances, and in any event is explained by the events of the day before, not by Worimi’s aboriginality.

31 It appears from the evidence that at least after 16 May, and possibly before then, the police were under instruction, on the advice of the police aboriginal community liaison officer, to ensure that a duty officer accompany any police offers attending Worimi’s premises for the sake of improved communication. It is however not clear on the evidence that this is an explanation for the attendance of four officers on 16 May.

Police ridicule and contempt

32 Further in relation to the events of 15 and 16 May, Worimi complains that the police showed ridicule for and contempt of him, saying in his letter of complaint “Police came out to the front of Coleman’s house with Karen Coleman again laughing and mocking my family . . . Priscilla said ‘look at Karen Coleman and the Police laughing at us’ … the following day 16/5/01 about 11am a police wagon and a unmarked car with 2 detectives came to my house laughing ... the policemen were standing mocking us”.

33 The police officers in their evidence deny this conduct. It is a simple matter of Worimi’s saying it happened and the police saying it did not. We heard no corroborative evidence. It is as likely that Worimi misunderstood what he saw. We cannot be satisfied that the conduct happened. If the conduct did happen, we are unable to say that a non-aboriginal person would have been treated more favourably in the same circumstances.

Previous police conduct

34 Although Worimi’s complaint culminates in the events of 15 and 16 May, his complaint is as well about a course of conduct over time, and an attitude he says that police had towards him because of his aboriginality. He says that if he was not aboriginal the police would not have visited his home to warn him about his conduct, and that of his family, as often or at all.

35 The material circumstances in which this conduct occurred are that there was a history of tension among residents of Carr Place, particularly involving the residents of 9 Carr Place – Karen Coleman and James McInnis. That history involved the threatening and making of apprehended personal violence orders, and numerous calls to the local police.

36 It is the case that, before the events of 15 and 16 May, the police had attended Worimi’s home on a number of occasions; they did so on the complaints of neighbours, regarding the conduct not of Worimi but of younger members of his family. Worimi says that the police attended Worimi’s home on a number of occasions because, at least in part, he was aboriginal.

37 These attendances were particularly intense a few weeks before 15 and 16 May, during which time, as Senior Constable Coffey recorded in a memo dated 4 April, “ Police have responded several times to 9 Carr Place Beresfield [Coleman’s house] in relation to complaints about the children of 13 Carr Place Beresfield ... other incidents involve attendance at alarms and unsubstantiated malicious damage complaints by the Coleman family”. Senior Constable Coffey recorded that the police were under some pressure to respond to the complaints made by the Coleman household: “The Coleman family are currently keeping a dossier of events and have commenced complaints against the police not supporting their complaints”.

38 Senior Constable Coffey’s approach does not seem to have favoured the Colemans, who are not aboriginal, over Worimi or his family. He recorded: “I have detected great hostility between both parties and I see no likelihood of any reconciliation … I feel police are not able to detect the truth from either family and are being used as pawns by the families involved”. There is no evidence that indicates that Senior Constable Coffey would have formed a different view if Worimi, or his family, were not aboriginal.

Police adverse opinion of Worimi

39 Worimi says that the police formed an opinion about him that they would not have formed if he was not aboriginal: that he was dangerous, and that he was racist.

40 It is the case that before the events of 15 and 16 May, the police had formed the view that Worimi had the capacity to act dangerously. Entries in the police service Intelligence Information System consistently warn officers that Worimi “may carry a weapon” and “has stated he will use a knife on police if need be”. Whatever the basis was of such warnings – we heard police evidence that explained the presence of those warnings and Worimi disputes that evidence – there is no evidence that indicates that the police would have formed a different view of a non-aboriginal person, in the same or similar circumstances.

41 It is the case that Senior Constable Coffey had, before the events of 15 and 16 May, formed the view that Worimi was himself racist; he had heard Worimi repeatedly make derogatory statements about white people.

42 The evidence shows that Senior Constable Coffey had a reasonable and sufficient basis for forming this view; on 28 March 2001, for example, he recorded in the police Intelligence Information System that Worimi had “commenced a barrage of racist remarks to police, calling us ‘whities’ ... making racist slurs against caucasian people and allegations that we murdered his forefathers and all white people hated aborigines”. There is no evidence that indicates that Senior Constable Coffey would have formed a different view if a non-aboriginal person had made such comments in similar circumstances.

Police failure to respond to complaints

43 Worimi says that the police failed to respond to his complaints to them about the conduct of his neighbours. Worimi says that the police consistently failed to respond to his complaints about the conduct of neighbours. He said in his letter of complaint “I have rang the police every time my children and grandchildren been harassed and abused. Police have done nothing, but when they do come they go to the white peoples homes and come to my house and tell me to shut up or we will charge you. Police do not listen to my side of the events or story. Numerous times we have been in the back yards when someone is throwing rocks just missing our heads. I reported this, again the police done nothing. Many times the Coleman's house party up and start yelling racial abuse at us. Police done nothing. … Why is it that when we call police no-one comes, but as soon as a white fella calls police the police come? … How come when we ring police for help or protection we’re denied justice or equal rights as a white fella”.

44 The terms of Worimi’s written complaint imply that he had contacted the police on occasions, and had sought their intervention in relation to the conduct of his neighbours. Worimi’s evidence to us is, however, that he had not done that. He lacked confidence in the police, and did not want them involved in his family’s affairs. He agreed in his evidence that his complaints to the police about the conduct of his neighbours were made when the police attended his premises to speak to him about complaints his neighbours had made about the conduct of members of his family.

45 It is the evidence of Senior Constables Coffey, Morales and Hopkins that Worimi did complain in this way about his neighbours. It appears that the police took no action in response to these complaints by Worimi as they were unable to determine where responsibility for any conflict lay.

46 Worimi compares the way the police responded to his neighbours’ complaints with the way that they responded to his complaints. The circumstances are not, however, comparable. The neighbours initiated complaints against Worimi and their complaints, whatever their merit, were recorded and acted as on as a formal complaint. The police had no discretion, and were obliged to respond. Worimi’s complaints, on the other hand, arose in the course of the police investigation, by way of response to allegations made against him. Whether the police acted on his complaints was matter of judgment for the police. Worimi chose to not contact the police. There was no evidence on which we could consider that Worimi was, because of his race, any less able to initiate complaints than a non-aboriginal person.

47 In fact police records show that Worimi did call the police on two occasions. He called on 7 April 2001 about the conduct of his neighbour, James McInnis, towards Worimi’s grandson. The police attended, spoke to Mr McInnis who denied the accusations, and recorded “Nil witnesses. Due to level of conflict between both parties I am unable to adjudicate the complaints validity”. He called again on 28 April to complain about the conduct of another neighbour, Mr Moody, who threw a hammer at one of Worimi’s grandchildren. This complaint resulted in Mr Moody’s being required to attend court to face a criminal charge.

48 The records show that on both of these occasions the police responded to formal complaints from Worimi in the same way that they had responded to formal complaints from non-aboriginal neighbours. On one occasion the complaint resulted in the police taking action against the person Worimi complained of, which is more than they had done for the complaints made by the neighbours against of members of Worimi’s family.

Summary: police complaint

49 The conduct of the police, and the views they formed, are reasonably explained by reference to the circumstances without reference to Worimi’s aboriginality. Even so, it remains possible that the conduct and the views Worimi complains of could also be explained, at least in part, by Worimi’s aboriginality. But we are not satisfied that that is the case. Apart from the fact of Worimi’s aboriginality, there is no evidence either that the police acted as they did and formed the views that they did on the ground of Worimi’s aboriginality, or that the police would have acted differently, and formed different views, had Worimi not been aboriginal.

50 We are not able to say, on the evidence available to us, that in any of the conduct of the police that Worimi complains of he was treated less favourably than a non-aboriginal person was or would have been treated in the same circumstances.

Department of Housing

51 In the same letter to the Anti-Discrimination Board in which he complained of discrimination by the police, Worimi complained that the Department of Housing (‘Housing’), who managed the premises on behalf of the Aboriginal Housing Office, had discriminated against him in the provision of services on the ground of his race. In a long letter to the Anti-Discrimination Board, dated 5 November 2003, Worimi provided further information about his complaint in response to a reply to his complaint from Housing.

52 We must decide whether, by act or omission, Housing treated Worimi less favourably than they treated, or would have treated, a non-aboriginal person in the same or materially similar circumstances (s7(1)(a) Anti-Discrimination Act1977) in the terms on which it provided Worimi with its services (s19(b) Anti-Discrimination Act 1977).

What is complained of against Housing

53 Worimi complains that Housing failed to act on numerous complaints he had made of race-based conduct towards him by other tenants, and that when it did act on his complaints it did so in a manner that was discriminatory.

54 Worimi’s tenancy with the Aboriginal Housing Office began in about November 1999, and Housing managed it from that time. We heard evidence from Christopher James, Acting Team Leader of Housing at the Maitland Office, and from Ms Julie Bell, Client Service Officer with Housing. Housing’s files for Worimi’s tenancy were admitted into evidence.

55 On 23 April 2001 Worimi complained to Housing about race-based treatment of him by neighbours in Carr Place. There is no record of Worimi’s having complained to Housing before then of discriminatory conduct towards him, although as the following account shows, Housing knew of race-based conduct directed towards him. The files, and the evidence of Christopher James, which we accept as accurate, show the following:

- 28 March complaint to Housing by Coleman alleging conduct by members of Worimi’s family

- 4 April representations to Housing by a doctor on behalf of Coleman

- 5 April Housing receives a copy of a summons for an apprehended personal violence order taken out by Worimi against Coleman’s partner, McInnis, alleging that McInnis had called Worimi and his family “black cunts” and had threatened violence against them

- 5 April Housing seeks information from Police, pursuant to a memorandum of understanding between Housing and Police, of incidents and charges concerning Worimi and his family

7 April Mrs Mood complains to Housing of presence of dangerous dog

10 April Mr Mood complains to Housing of theft of plants

11 April Julie Bell interviews Coleman about a range of matters including her interaction with the Dates family

12 April Ray Craigie reports to Housing of a meeting with Worimi

12 April Housing is aware of Worimi’s and Coleman’s attendance at court in relation to apprehended personal orders

12 April Housing is advised by Police of Worimi’s criminal history

12 April Housing is advised of an apprehended personal order against a member of Worimi’s family by Coleman

13 April Mrs Mood complains to Housing of a dog said to be from Worimi’s house

14 April Mr Mood complains to Housing of an attack by a dog said to be from Worimi’s house

19 April Mrs Mood complains to Housing of the conduct of a member of Worimi’s family

19 April a resident of Carr Place complains to Housing about Coleman’s conduct

22 April Mrs Mood complains to Housing of the conduct of members of Worimi’s family

23 April a resident of Carr Place complains to Housing about Coleman’s conduct towards a member of Worimi’s family

23 April a resident of Carr Place complains to Housing about the conduct of members of Worimi’s family

23 April Julie Bell interviews the Moods about a range of matters including their interaction with the Dates family

23 April Julie Bell responds to a telephone call and interviews a resident of Carr Place about their observation of the conduct of members of Worimi’s family

23 April Julie Bell interviews a resident of Carr Place about their observation of the conduct of Coleman and the Moods

23 April Julie Bell interviews Coleman about her relationships with other residents in Carr Place

23 April a resident of Carr Place complains to Housing that Mrs Mood assaulted a member of Worimi’s family

23 April a resident of Carr Place complains to Housing that a member of Worimi’s family assaulted Mrs Mood

23 April and 24 April the Moods, Coleman and another person complain to the Police of an alleged assault on Mrs Mood on Mrs Mood by a member of Worimi’s family

23 April Housing receives a letter from Worimi complaining of racially motivated conduct of his neighbours

23 April Coleman complains to Housing of the conduct of members of Worimi’s family

Christopher James allocates three departmental officers to the task of resolving the situation at Carr Place, including Warwick Thompson, Housing’s Client Services Co-ordinator (ATSI).

Warwick Thompson liaised with Ray Craigie, the Police aboriginal Liaison Officer and reported to Christopher James matters learnt from Ray Craigie.

After 24 April Housing receives copies of statements made to the police by the Moods, Coleman and another person alleging an assault on Mrs Mood by a member of Worimi’s family

30 April Housing receives a report from a Departmental officer regarding the conduct of members of Worimi’s family

3 May Housing receives a complaint from a neighbour regarding the conduct of members of Worimi’s family

4 May Housing receives a report from Julie Bell regarding her inquiries and interviews in Carr Place

7 May Housing receives a report from a Departmental officer regarding the situation in Carr Place

7 May Housing receives a complaint from a neighbour regarding the conduct of members of Worimi’s family

7 May Housing receives a report from Mrs Mood regarding an altercation between Mr Mood, and members of Worimi’s family and Worimi

8 May officers of Housing meet with Warwick Thompson and Ray Craigie to discuss the situation at Carr Place

16 May Housing receives a report from Police regarding the incidents on that date that are described above in relation to Worimi’s complaint against the Police.

Shortly after 16 May Christopher James with Ray Craigie and another Housing officer visit Carr Place and interview Worimi, a member of his family and neighbours.

Soon after that visit Christopher James reports to his superior, Geoffrey Mascord, on the situation at Carr Place.

Later in May Christopher James attends a meeting, convened by Ray Craigie, at Beresfield Police Station with Ray Craigie and members of Worimi’s family.

4 June Christopher James replies to a request for further information from Geoffrey Mascord.

14 June Housing convenes a meeting with those residents of Carr Place not involved in the disputes and receives a report from one of its officers.

15 June Christopher James writes to the Police pursuant to the memorandum of understanding between Housing and Police and is advised on incidents reported to the Police involving residents involved in the disputes, including Worimi, Coleman and the Moods.

13 July Housing applies to the Residential Tribunal for compliance orders in respect of the tenancies of Worimi, Coleman and the Moods.

56 By any reckoning this was an intense and troubling time for everyone involved. The complaint Worimi makes is that Housing’s response to his complaints was less favourable on the ground of his race than its response to others’ complaints.

Housing’s response to race-based conduct towards Worimi

57 In the course of, or resulting from, the various circumstances set out above, documents were created by Housing that record what was known to Housing, specifically to Christopher James and Geoffrey Mascord. The documents available to us from the files and the evidence of Christopher James show that from as early as 5 April Housing knew that Worimi claimed he was being subjected to race-based conduct by neighbours in Carr Place. Throughout the period Housing knew that Worimi was aboriginal and that Coleman and the Moods were not aboriginal.

58 When Chris James and Julie Bell interviewed Coleman on 11 April Housing already had “several reports from other residents that she was also making threats and was abusive towards many of the residents in Carr Place, particularly the Dates family”. Neither in that interview nor afterwards did Housing warn of Coleman about her allegedly threatening and abusive conduct, gave no warning to her, or take any no action in relation to it.

59 Housing interviewed Coleman again a week later, on 18 April and recorded her version of “incidents taking place with her neighbours”. Many of those incidents did not involve Worimi’s family, and some did. None involved Worimi.

60 The next day, on 19 April, Housing received a written complaint from a neighbour, not Worimi, about Coleman’s behaviour, alleging persistent abusive conduct. On 23 April Housing received a further written complaint from a different neighbour, again not Worimi, who says they saw Mrs Mood assault a member of Worimi’s family. The same day Housing had a telephone conversation with that neighbour who said that Worimi’s family cause no trouble, and that the children of his family just play as children normally do. The letter identified Coleman as responsible for “the majority of the trouble”. Further on that day Housing received a written complaint from Worimi alleging race discrimination against him and his family by residents of Housing’s tenants in Carr Place.

61 In light of the above, we are satisfied that by 23 April 2001 Housing knew that Worimi’s grandchildren were causing disruption in the street although, on one resident’s report, no more than any children playing in a street would cause, and that Worimi’s daughters were involved in disputes with neighbours in the street. We are satisfied that by this date Housing knew that Coleman was a significant cause of distress to neighbours in the street, and had been accused of racist abuse and threats. We are satisfied that by this date Housing had received no complaint about Worimi, but that Worimi had complained of racist conduct by his neighbours.

62 After 23 April Housing received further complaints regarding the conduct of Worimi’s grandchildren. On 4 May Julie Bell reported on her management to that date of the situation at Carr Place. She records that “neighbours I interviewed believe there are residents in the street that are racists”; her file notes record only one resident saying that, and saying it of Coleman in relation to Worimi and his family. Ms Bell records that she had interviewed “some of the residents” but “as yet I have not discussed the incidents in detail with Mr Dates [Worimi]”. It appears, in fact, that she had not discussed the incidents at all with Worimi. Among her recommendations Ms Bell recommends that Mr Thompson interview Worimi, and that Ms Coleman be transferred.

63 On 7 May Mr Thompson sent an email to Housing to say that he had been in contact with Ray Craigie. On 8 May officers of Housing, including Mr Thompson and Ms Bell, met with Ray Craigie “to review the various issues reported to the department and police involving Gary Dates [Worimi] of 13 Carr Pl and surrounding tenancies, and to establish a strategy to address the various issues.” The meeting noted that “many of the altercations have evolved from the Dates children” and that “Mr Dates [Worimi] needs to supervise the children on a regular basis”. At the same time “a strong view that there is potential racism between the Colemans and the Dates” was noted. The meeting concluded “that there are many conflicting views reported by different parties”. The view of the meeting was that if Coleman was transferred “the problems may diminish significantly”, and that is what was recommended.

64 The meeting recorded “Mr Dates [Worimi’s] aggressive nature”. On all the evidence available to us this was an unfounded and prejudicial view of Worimi. The reference to “potential racism between the Colemans and the Dates” fails to convey that it was Coleman who had been identified as responsible for race-based conduct, and wrongly characterises Worimi, one of the “the Dates”, as engaging the same behaviour.

65 The events of 15 and 16 May then took place, after which Chris James reported to Geoffrey Mascord that reports indicate “the dispute is largely between these two parties [Coleman and the Dates family] and is based on personal, family and racial grounds . . . both parties are equally responsible but with Ms Coleman being identified as the person inciting most of the problem with the Dates family responding”. Chris James goes on to report that “due to the issues involved and the seriousness of the current situation Ray and the [Dates] family are looking at Garry [Worimi] moving to Karuah with his family”.

66 This is the first time reference is made to relocating Worimi. It appears that in late May Ray Craigie convened a meeting with Chris James and Worimi’s mother and brother to discuss the desirability of relocating Worimi. Worimi was unaware of the meeting and his views were not sought.

67 On 27 June a Housing officer, Eric Harper, reported on interviews held with eight residents of Carr Place other than Worimi, the Moods and Coleman. The first resident reported the disruptive conduct of Dates family’s children and “observed that Gary Dates [Worimi] is not pro-active in curbing inappropriate behaviour of children which reside with him”. The same resident reported Coleman’s “brazen aggressive and verbally racist behaviour towards Dates and his grandchildren”. They also reported the Dates children’s antagonising of the Moods with racist slurs and rock throwing, and the Moods’ racial outbursts in response.

68 The second resident reported only that “Dates’ grandchildren often run on surrounding neighbours lawns and if asked politely usually move along”. The same neighbour said of Worimi that he had poor parenting skills with respect to regulating children’s behaviour, that he has said that he does not abide by white man’s law, that he is very peaceful, but that he becomes agitated when his daughters visit and they allegedly stir trouble. The neighbour said that Coleman, her partner McInnis ands the Moods all engage in racial slurring towards the Dates, that Coleman becomes violent when intoxicated and that Coleman has been at the centre of issues in the street including assaults. They observed that the Moods engage in apparently unprovoked abuse of the Dates, and said that the children usually do not instigate racial slurring but are easily provoked.

69 The third resident reported that while the Dates children often run on neighbours’ lawns and Worimi does not attempt to regulate their behaviour, Coleman and her partner initiate extremely racist verbal abuse against Worimi and his family, and Coleman’s partner threatens the Dates children with violence.

70 The fourth resident said that Coleman verbally abuses the Dates children and that Coleman has a history of aggression to neighbours including assault. The resident perceived Worimi to be an incompetent parent in the care and discipline of children at his home.

71 The fifth resident said that Coleman initiates abusive episodes, and observed that Worimi “does not attempt to regulate the grandchildren’s racist verbal rhetoric when they speak to others in the street”.

72 The sixth resident also identified Coleman as the source of hostilities and altercations, and also said that Worimi did not have control of the foul mouths of the children.

73 The seventh resident said that when the Dates children ran onto lawns they responded to the manner in which they were treated, responsive when asked politely and abusive when abused. The eighth resident said nothing of relevance.

74 Based on these interviews Mr Harper says “common issues” identified by residents include “suggestions that Mrs Coleman possesses a history of inappropriate behaviour toward neighbours ... in addition to issues with the Dates family ... allegedly exhibited in verbal and physical aggression and also at times ... racially motivated”. He says that residents see the Moods’ abusive behaviour toward the Dates as unwarranted, and that residents see Worimi as having poor parenting control over the abusive and racially charged behaviour of the Dates family children.

75 Mr Harper did not give evidence. Based on the written account he gives of the interviews on which he based his conclusions, his conclusions are neither accurate nor reasonable. It is clear on reading his account that more than there being mere “suggestions” relating to Coleman’s behaviour, there were strong, detailed and consistent allegations; more than being “inappropriate and abusive”, Coleman’s behaviour was unlawful; more than “allegedly exhibiting verbal and physical aggression which was at times racially motivated”, Coleman’s behaviour was often violent, and explicitly and consistently racist.

76 While Mr Harper acknowledges that that Coleman’s “history of involvement in neighbourhood disharmony ... precedes Gary Dates’ tenancy”, he substantially understates the persistence, abusiveness and violence of Coleman’s conduct when he says that it is merely part of “neighbourhood disharmony”. Mr Harper substantially understates the seriousness of the Moods’ conduct when he says that their “attempted assault of [the Dates] children with tools” was conduct that “contributed to nuisance perpetration”.

77 Based on police information Mr Harper notes “the Dates family have a lack of respect for warranted Police intervention and authority (including Date’s daughters and grandchildren which have allegedly racially abused Police)”. Keeping in mind that this report was written on 27 June the reference is likely to be to the incidents of 15 and 16 May; there is no evidence before us of any other such occasion. Mr Harper also notes what appears to have been the involvement of a certain neighbour – none of the Dates, Coleman or Mood households – in stirring up disharmony in the street.

78 In light of his interviews and investigations we do not accept that Mr Harper could reasonably have concluded that “there is not one single party identified which may be apportioned with the ‘blame’ for incidents”. Even if he was unwilling to identify a single party who might take all the ‘blame’, to treat Worimi, Coleman and the Moods, and possibly a fourth tenant, as equally culpable, as he does, is clearly at odds with the evidence of his investigations.

79 Mr Harper concludes that “it is clear that given Mr Dates’ [Worimi’s] mentality that he is not suitable for public or AHO [Aboriginal Housing Office] housing unless he becomes conducive to complying with tenancy obligations (this would also entail interagency intervention to assist Gary with parenting skills and the children’s behaviour is a significant factor when considering neighbourhood disputes)”.

80 This reference to a “mentality” that ‘clearly’ renders Worimi unsuitable for public housing is unfounded, and highly prejudicial. It purports to disqualify Worimi for eligibility for public housing. It is explained only inferentially by reference to Worimi’s non-compliance with tenancy obligations. The only non-compliance that is referred to is, to put it in terms relevant to a Housing agreement, Worimi’s responsibility for the behaviour of people who occupy his rented premises from time to time. (Worimi’s dispute with Housing over rent payments and absences from his tenancy had been resolved for some months by this stage and no reference was made to them by Mr Harper.)

81 The residents’ repeated comments about Worimi in the course of Mr Harper’s investigation relate only to his not controlling the children. No-one complains of his behaviour. In fact he is said to be “very peaceful”. A comment that he does not abide by white man’s law is attributed to him, but there is no evidence of any unlawful behaviour. It is observed that he becomes agitated when his daughters visit and stir trouble, but nothing more is reported. This is the full extent of material relating to Worimi gleaned from residents on the basis of which Mr Harper makes recommendations relating to Worimi’s tenancy. If Mr Harper knew of the events of 15 and 16 May he makes no reference to them in his report.

82 Mr Harper recommended that each of Worimi, Coleman and the Moods be issued with letters in relation to ‘Nuisance and Annoyance’ perpetration, and that each of them be under threat of termination of their tenancies in the event of further breaches. As to the tenancies, Mr Harper recommended that Coleman’s transfer request be refused, that she be interviewed in relation to tenancy breaches, that the Moods be monitored, and that Worimi be offered assistance to relocate.

83 On 13 July each of Worimi, Coleman and the Moods were issued with letters in identical terms, alleging that they had “caused or permitted a nuisance and also interfered with the reasonable peace, comfort or privacy of neighbours”. We understand from the evidence that Coleman relocated and the Moods subsequently left public housing. We know that Worimi was relocated.

84 Worimi’s complaint is that Housing failed to act on his complaints of race-based conduct towards him by other tenants, and that when it did act on his complaints it did so in a manner that was discriminatory. While we have found that Worimi did not make “a number of” complaints, he did make a complaint in writing on 23 April. We are satisfied that Housing had been on notice from as early as 5 April that Worimi was the target of race-based conduct. By 26 June Housing could have been in no doubt that Worimi (and his family) was the target of persistent racial abuse, accompanied by threats of and actual violence, from neighbours in Carr Place. But Housing took no action to address this.

85 The highest Housing put the issue was to characterise it as part of “neighbourhood disharmony”. The perpetrators – Coleman and the Moods – were not spoken to or warned. When Housing took steps against them it was in the same terms as steps taken against Worimi, against whom no allegations of violent or abusive conduct towards neighbours had been made, and who had been described as “very peaceful”. In Housing’s view Worimi’s “poor parenting skills” warranted his being threatened with eviction, and being relocated from his home, while Coleman’s and the Moods’ persistently violent, abusive and race-based conduct warranted the same response.

86 Housing knew that Coleman was the principal cause of the trouble. Housing knew that some trouble was caused by children visiting and staying with Worimi. Apart from the incidents of 15 and 16 May, Housing had no reason to believe that Worimi himself was the cause of any trouble. In fact Housing knew of Worimi’s complaint of race-based conduct towards him and his family, but did not act on it.

87 Worimi was treated in the same way as Coleman and the Moods were treated, but they are not ‘comparators’ for purposes of assessing a breach of the Anti-Discrimination Act 1977. Worimi and they were not in the same material circumstances.

88 Although Housing knew of the criminal history and current and pending criminal proceedings relating to each of Coleman, the Moods and Worimi, this knowledge does not appear to have been material Housing’s decision to threaten them with eviction. Materially to the treatment they received, Coleman and the Moods were reported to Housing, by eyewitnesses among whom was Worimi, as the principal protagonists, engaging in abuse, violence and racially motivated behaviour; Worimi was reported by eyewitnesses as exercising poor control over his grandchildren and otherwise as quiet. These are starkly different circumstances. It is almost inconceivable that the evidence to this effect gathered and reported by Mr Harper could give rise to Worimi’s being treated in the same way as Coleman and the Moods. But that is what happened.

89 Would a non-aboriginal person have been treated in the same way that Worimi was treated in the circumstances? In this matter there is no actual comparator and this question is hypothetical. There is no evidence of there being a quiet non-aboriginal person exercising poor control over children and making complaints about the conduct of neighbours who themselves were known to engage in abusive and violent behaviour. Were there such a person, would they have been treated as Worimi was?

90 If Housing’s treatment of Worimi is explained only by some or any of incompetence, indifference, lack of will, and lack of ability on the part of its officers, then a non-aboriginal person is likely to have been treated in the same way that Worimi was treated in materially similar circumstances. But if Housing’s treatment of Worimi is explained, at least in part, by his race, then a non-aboriginal person is likely to have been treated more favourably than Worimi was treated in materially similar circumstances.

91 There is ample evidence from which we can reasonably infer that Worimi’s aboriginality was indeed a factor in the way Housing acted. Accordingly, in our view, Worimi was treated less favourably, on the ground of his race than a non-aboriginal person would have been treated in materially similar circumstances.

92 Submissions made for Housing at the conclusion of evidence addressed this question directly. It was correctly submitted that there is no direct evidence that actions by Housing were based on Worimi’s race. It was correctly submitted that Worimi’s case is based on circumstantial evidence from which the Tribunal is asked to infer, to the appropriate standard, that there was discrimination. It is not correct to say, as do the submissions, that the evidentiary circumstances on which Worimi relies must, if he is to show discriminatory conduct, bear no other reasonable explanation: they may bear indeed other reasonable explanations, but discriminatory conduct will be established if one of those other explanations is ‘race’: s4A Anti-Discrimination Act 1977.

93 We can see from the evidence that non-aboriginal people were threatened with tribunal orders and possible eviction when they posed a significantly greater problem to neighbours than merely exercising poor control over children. For Worimi, an aboriginal person, to have been threatened with tribunal orders and possible eviction, and as well to have been the subject of proposals to relocate him, something more than his mere poor parenting skills was at play. In our judgment, a non-aboriginal person, such as a white Australian of Anglo-Celtic origin, would not have been threatened with tribunal orders and possible eviction, and as well as have been the subject of proposals to be relocated, in circumstances where they merely exercised poor control over children.

94 In our judgment the difference in treatment between Worimi and the hypothetical non-aboriginal comparator is explained at least in part by Worimi’s aboriginality. We are not at that end of the spectrum, as pointed out in the submission made for Housing, where only Worimi’s suspicions are the basis for saying that race was a ground. We are closer to, but not at, the other end, where the only possible explanation can be Worimi’s race.

95 Differently from King v Meilman East (2004) NSWADT 46 and Dutt v Central Coast Area Health Service (2002) NSWADT 133, on which Housing relies in its submissions, where no evidence was available to support the inference that the applicant wanted the Tribunal to draw, there is such evidence here. The evidence reasonably supports the inference that Housing’s treatment of Worimi, through its officers including James, Bell, Harper and Thompson (who, we note, is aboriginal), was at least in part on the ground of his race. It is a reasonable and available explanation for Housing’s failure to act on known racist behaviour, Housing’s failure to respond to Worimi’s complaint of racist behaviour, and Housing’s willingness to conclude, on the basis of the interviews reported by Harper and summarised above, only that “in some cases the information supported Mr Dates [Worimi] and in others went against him”.

96 The submissions for Housing correctly ask whether the inference is as to a mere possibility, or probable connection, and helpfully refer to the discussion by Spigelman CJ in Seltsam v McGuiness (2000) 49 NSWLR 262. We are satisfied in this matter that it is more than merely possible that Worimi’s race was a ground for Housing’s treatment of him; it is the only reasonable basis on which Housing’s treatment less favourable treatment of him can be explained. Accordingly, we find that Housing unlawfully discriminated against Worimi.

Housing’s application to the Residential Tribunal

97 On 13 July 2001, Housing applied to the then Residential Tribunal seeking compliance orders on the ground of alleged breaches of conditions of the tenancy agreement. Worimi says that this application was unfounded as he was not in breach of his residential tenancy agreement as alleged. Referring to a letter from Housing that sets out the alleged breaches, Worimi says in his complaint “I have never at any time of my tenancy at 13 Carr Place Beresfield breached . . . the residential tenancy agreement [as alleged]”. Worimi complains that the commencement of the proceedings was discriminatory.

98 Applications for orders for compliance on the same grounds were made as well in relation to the tenancies of Worimi’s non-aboriginal neighbours in Carr Place, Ms Coleman and Mr and Mrs Mood. In all cases the applications alleged “It has been established that the tenant has caused or permitted a nuisance and also interfered with the reasonable peace, comfort or privacy of neighbours”.

99 As we have pointed out above, Worimi was not in the same circumstances as Ms Coleman and Mr and Mrs Mood. Materially to the Residential Tribunal applications, it had indeed been established that Coleman and the Moods had “caused or permitted a nuisance and also interfered with the reasonable peace, comfort or privacy of neighbours”. On the other hand, it had been established that Worimi had exercised poor control over his grandchildren. Worimi was not treated in the same way as Ms Coleman and the Moods in the same circumstances; he was treated the same way in different circumstances. They are therefore not comparators.

100 The same reasoning that we set out above in paragraphs 89-96 leads us to conclude that in seeking the orders that they did from the Residential Tribunal , Housing treated Worimi less favourably than they would have treated a non-aboriginal person in the same circumstances and so discriminated against him unlawfully.

Collection of a petition

101 Worimi complains that an officer of Housing, Ms Julie Bell, approached his neighbours seeking support for his eviction. He says “I have been told that Julie Bell spoke to tenants in Carr Place would they like a petition to put the aboriginal family out”.

102 Ms Bell denies this conduct, and we heard no evidence from anyone who says that they were approached in this way. We are not satisfied that the conduct occurred as alleged.

Loss and damage

103 Worimi is clearly angry at and distressed by Housing’s discriminatory treatment of him. He did not suffer any measurable harm or economic loss. Housing relocated Worimi from Carr Place. Worimi did not specifically complain of this, nor is it clear that the relocation was a consequence of the discriminatory treatment we have identified.

104 Housing’s discriminatory conduct left Worimi unprotected against race-based conduct, and subjected him to unwarranted Tribunal proceedings, causing him to suffer anger and distress. His anger and distress is properly characterised as loss and damage, and Worimi should be compensated for it.

105 The amount of such compensation in this Tribunal are not substantial by any measure. Having regard to awards made in similar circumstances, and consistently with them, we believe that $5,000 is an appropriate amount.

ORDERS

Matter 041055

1. The complaint against the Commissioner of Police is dismissed

2. Each party is to pay their own costs.

Matter 041056

1. The complaint against the Director General of the NSW Land and Housing Corporation as agent for the Aboriginal Housing Corporation is substantiated

2. The respondent will pay to the complainant damages of $5,000 by way of compensation for loss and damage suffered by reason of the respondent’s conduct

3. Each party is to pay their own costs.