Edwards v Bourke Bowling Club Limited
[2000] NSWADT 31
•03/31/2000
CITATION: Edwards -v- Bourke Bowling Club Limited [2000] NSWADT 31 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Janice Edwards
Bourke Bowling Club LimitedFILE NUMBER: 31 of 1998 HEARING DATES: 26/10/99, 27/10/99 SUBMISSIONS CLOSED: 12/21/1999 DATE OF DECISION:
03/31/2000BEFORE: Britton A - Judicial Member; McDonald O - Member; Edwards K - Member APPLICATION: Race Discrimination - Registered Club - Sex Discrimination - Registered Club MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Alone -v- State Housing Commission ("Homewest") (1992) EOC 92-392
Fenwick -v- Beveridge Building Products Pty Ltd (1986) EOC 92-147
Khanna -v- Ministry of Defence (1981) I.C.R.
Chamberlain -v- The Queen (1984) 153 CLR 52
Shepherd -v- The Queen 97 ALR 161
Department of Health -v- Arumugam (1987) EOC 92-195, (1988) VR 319
Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT
Jones -v- Dunkel (1959) 101CLR 298REPRESENTATION: APPLICANT
D Black, barrister
RESPONDENT
D McKay, solicitorORDERS: 1. That the complaint be dismissed.; 2. No order as to costs.
1 The applicant, Mrs Janice Edwards is an Aboriginal woman who joined the Bourke Bowling Club (the “Club”) in December 1994. She complains that the Club, in various dealings with her in 1995 and 1996, in particular suspending her from membership in 1995 and later refusing to readmit her to membership, unlawfully discriminated against her on the grounds of her race and sex.
2 On May 1 1995 Mrs Edwards lodged a complaint with the Anti Discrimination Board alleging discrimination on the grounds of race. A second complaint of race discrimination was lodged with the Board on 4 February 1997. Conciliation was attempted but unsuccessful. Her legal representatives wrote to the Board on 12 February 1998 requesting that the matter be referred to the Equal Opportunity Tribunal.
3 Counsel for the applicant, Ms Black, submits that the Club’s treatment of Mrs Edwards constitutes unlawful discrimination under s20A and s34A of the Anti-Discrimination Act 1977 (“the Act”). Sections 20A and s34A of the Act render unlawful discriminatory acts by a registered club in certain dealings with members and non-members.
4 Mr McKay, for the respondent, submits that Mrs Edwards has not received less favourable treatment from the Club, referrable to her race or sex. The Club’s decision to suspend Mrs Edwards from membership in 1995 and to refuse her readmission in 1996 were entirely reasonable in light of Mrs Edwards’ inappropriate behaviour on Club premises.
ISSUES
5 The issues for determination in this Inquiry are:
- First, did the Club treat the applicant treated less favourably than it had treated or would treat a non-Aboriginal person in the same or similar circumstances?
Second, if so, was the treatment suffered by the applicant "on the ground of" her race?
Third, and independent of the above, was the applicant treated less favourably by the Club than the respondent had treated or would treat a male in the same or similar circumstances?
Fourth, if so, was the treatment suffered by the applicant "on the ground of" her sex?
FACTS
6 Mrs Edwards was admitted to membership of the Club on 16 December 1994.
7 On the evening of 24 February 1995 an altercation took place between Mrs Edwards and Sergeant Cross, an off-duty police officer based at Bourke. Mrs Edwards alleges Sergeant Cross provoked her by calling her a slut. Sergeant Cross denies this. Mrs Edwards was asked to leave by (then) Acting Club Manager, Mr Robert Rumble. Mrs Edwards left the Club as requested.
8 On 26 February 1995 Mrs Edwards made an official complaint to the Bourke Police about Sergeant Cross’s comments to her on Friday evening. This complaint was the subject of a Conciliation Report, signed by Mrs Edwards on 27 February 1995.
9 The Club wrote to Mrs Edwards on 27 February 1995 advising her that her membership had been revoked until the next Board meeting of the Club due to your unacceptable behaviour at the Club on February 24.
10 Mrs Edwards was invited to attend a meeting of the Club’s Board scheduled for 21 April 1995. She attended this meeting and spoke to the proposed suspension.
11 Mrs Edwards was advised by letter, dated 22 May 1995, that her membership of the Club had been suspended for the “life of the Board”, that is the unexpired portion of the term of office of the directors elected to the Board. The Club’s directors are elected for a one-year term at the Club’s Annual General Meeting. She was told she could apply for re-admission to the new Board.
12 Mrs Edwards submitted a membership application in December 1996. The Board advised her by letter, dated 21 December 1996, that the application was unsuccessful. Since then Mrs Edwards has not applied for readmission.
13 The Board of Directors of the Club makes decisions relating to Club membership. Such decisions are determined by a simple majority of those Board Directors present at the relevant meeting. Voting in relation to admission and readmission is by way of a secret ballot. Votes in relation to membership suspension are by a show of hands.
14 From 1995 to 1999 the majority of members suspended from the Club for alleged inappropriate behaviour were suspended for the life of the Board.
15 With the exception of Mrs Edwards, all persons suspended from the Club because of alleged inappropriate behaviour have been readmitted on application. Not all expelled members have re-applied for admission.
EVIDENCE
Mrs Edwards
Incident 24 February 1995
16 Mrs Edwards gave evidence that she attended the Club in the company of her husband Mr Robert Olsen and family friend, Mr Michael Knight.
17 At about 10.30pm she approached Sergeant Maurie West, who was also at the Club that evening, and inquired about the progress of a complaint made to the Ombudsman relating to her son. Sergeant Gerard Cross, who was also at the Club at the time, was playing poker machines and was, in her estimate, “a few machines away”.
18 During the course of this conversation Sergeant Cross approached Sergeant West and herself and Mrs Edwards, and according to her said: “Hey you little slut, you can get the Ombudsman or whoever you like,” to which Mrs Edwards replied “don’t you call me a slut”.(Affidavit, J. Edwards , 7 April 1999, par 4)
19 In cross-examination Mrs Edwards stated that Sergeant Cross had used the words: “Hey you little black slut you can get the Ombudsman or whoever you like”.
20 Mrs Edwards gave evidence that Mr Olsen was at the Club on the evening of 24 February 1995. She said that after the altercation with Sergeant Cross, Mr Olsen approached Sergeant Cross and said, “Fuck you, don’t call my wife a slut”.
21 Mrs Edwards said that directly after the incident she verbally complained to Mr Rumble, “That Inspector has just called me a black slut.”
22 At the request of Mr Rumble Mrs Edwards then left the Club premises in the company of her husband and others. Mrs Edwards said that she walked over to a police car that had just arrived outside the Club and reported the words Sergeant Cross had used.
23 In cross-examination she denied abusing Sergeant Cross and using offensive language. She further denied that she was a different person when drinking. She said she did not use offensive language, drunk or sober.
Conciliation Report
24 Mrs Edwards gave evidence that following the Club incident she made an official complaint to the Police about her treatment by Sergeant Cross. On 26 February Sergeant Carey of Bourke Police Station visited her at home. In her presence Sergeant Carey had completed a Conciliation Report. Under the heading “Details for basis of Conciliation” it read:
Matter has been conciliated on the basis that she receive feedback in relation to another matter being investigated by the police which deals with her son. Furthermore that she approach Police formally when requesting information about this matter and not after working hours. Furthermore I have offered an apology on behalf of the Police Service for her perceived treatment and for the police not getting back to her with the information she required. She accepted this conciliation and requested no further action. While agreeing that she signed the report, Mrs Edwards said that she did so following an explanation as to its meaning by Sergeant Carey: “This is apologies Janice for what happened to you at the Bowling Club” (T p47 atL20-22)Mrs Edwards said her request to take the report away and obtain legal advice was refused.
25 In cross examination it was put to Mrs Edwards that the 26 February conciliation related in part to her son’s complaint to the Ombudsman as evidenced by the note under the Complaint Report, “Details for the basis of Conciliation”. Mrs Edwards rejected this account saying that the conciliation related exclusively to Sergeant Cross’s alleged statement.
Incident 15 April 1995
26 On 15 April Mrs Edwards went to the foyer of the Club and explained to (then) Club President, Mr Carl Moore, that she needed to see her husband, who was in the Club, as he had their house keys. Mr Moore passed on the message and Mr Olsen joined Mrs Edwards at the front entrance of the Club. Mrs Edwards said she argued with her husband as she left the Club. She was angry with him for attending the Club, given her suspension.
27 In cross-examination Mrs Edwards said that while it was a term of her suspension that she not visit Club premises, the Club President did not appear to mind given the circumstances. She denied using offensive language or being intoxicated. She agreed she had been drinking.
Mr Michael Knight
28 Mr Knight gave evidence that he arrived at the Club at about 7.30pm on 24 February 1995, joining Mrs Edwards and Mr Olsen who were already at the Club. Throughout the evening he was seated with Mr Olsen and the applicant and from time to time played the poker machines.
29 He had three or four beers throughout the course of the evening. He estimated that Mrs Edwards had at least three small glasses of bourbon and coke (7’s). Mr Olsen was drinking beer.
30 He was playing poker machines at the time of the alleged incident between Sergeant Cross and Mrs Edwards. He gave evidence that immediately before the incident he turned and saw Mrs Edwards approach from the bar, having just bought him a beer. Mrs Edwards put down his beer. He then heard Mr Cross use the words “you black slut”.
31 Mr Knight heard Mrs Edwards say, “Don’t call me a black slut”. Otherwise he did not hear her raise her voice or use offensive language. He then went over to Mr Olsen and said “Robbie. He just called your Mrs a black slut over there, Gerard Cross over there.”
32 He gave evidence that he had not seen Mrs Edwards in conversation with Sergeant West.
33 Mr Knight did not see Mrs Edwards being asked to leave.
Robert Olsen
34 Robert Olsen gave evidence that he was present at the Club on the evening of 24 February 1995.
35 He said he saw his wife talking with Sergeant West but did not overhear any of the conversation. Similarly he saw his wife in discussions with Sergeant Cross but did not overhear any of that discussion. He gave evidence that Mrs Edwards “got wild”. Mr Knight then came over to him and said, “That copper Cross just called your missus a little black slut.” (Affidavit, R Olsen,12 June 1998, par4) Following this, Mr Olsen said he went over to Mr Cross and threatened him in a loud voice using abusive language.
Evidence for the Respondent
Gerard Cross
36 Gerard Cross gave evidence that on the evening of 24 February 1995 he attended the Club in the company of colleague Sergeant West and his wife. The three had dinner in the Club’s Dining Room. After the meal he played poker machines with Sergeant West.
37 While so doing he noticed Janice Edwards and Sergeant West in conversation. As the conversation proceeded Mrs Edwards’ voice became raised, referring to a police investigation involving her son.
38 Sergeant Cross said he turned to Mrs Edwards saying, “Janice, you have made your complaint, it is being investigated, let the matter run its course. There is nothing Mr West can do” To which, Mrs Edwards replied, “Don’t you fuckin’ swear at me you grey-haired old cunt, I’ll talk to who I like.” (Affidavit, G.Cross, 29 April, 1999, par4). He denied using the words “slut” or “black slut” to Mrs Edwards.
39 In cross-examination he could offer no explanation as to why Mrs Edwards had repeatedly used the words, “Don’t call me a slut.”
40 Mr Cross said he then walked away, hearing Mrs Edwards arguing loudly with Club staff and using abusive language. He left the Club about 15 minutes later through the main door. He met Mrs Edwards on the footpath outside the Club. She continued to yell at him.
41 He gave evidence that he did not recall Messrs Olsen or Knight being present at the Club at the time the incident took place or indeed at any time on that evening. In cross-examination he conceded that it was possible that both Mr Olsen and Mr Knight could have been in the downstairs part of the Club when he came down from the dining room, but he was almost certain they were not. He said the first he saw of Mr Olsen on the evening was, as he left the Club, on the footpath of Richardson Street outside the Club’s main entrance.
42 He said he was not drinking alcohol on the evening. He did not drink because of a medical condition. In his opinion Mrs Edwards was moderately to well affected by alcohol.
Conciliation report
43 Mr Cross was aware that Mrs Edwards had complained to Sergeant Carey on 26 February. He understood that this complaint, together with a complaint relating to Mrs Edwards’ son, was conciliated in accordance with relevant police regulations. As is usual police practice he was not invited to participate in the conciliation.
Susan Davis
44 Susan Davis gave evidence that on 24 February 1995 she was working behind the bar at the Club. She remembered it as a quiet Friday evening and estimated there to be about six patrons in the Club at the time of the incident.
45 She gave evidence that she was certain Mr Olsen was not in the Club at the time of the incident as she saw him walking towards her as she left the Club at the end of her shift, late that evening. She conceded that it was possible that Mr Olsen had been at the Club earlier in the evening. She had no recollection of Mr Knight on the evening and agreed that it was possible that he was there. She could not remember who else was in the Club on the evening
46 She said that in the course of the evening she heard a female, whom she later identified as Mrs Edwards, swearing at the top of her voice. She claimed Mrs Edwards said repeatedly in a loud voice, “I am not a slut.”
Robert Rumble
47 Robert Rumble is the Secretary Manager of the Club, a position he has held since March 1996. He has worked for the Club in various roles for approximately 21 years.
Incident 24 February 1995
48 Mr Rumble was working as Acting Manager at the Club on the evening of 24 February 1995. He recalled that Sergeant West, Sergeant West’s wife, Sergeant Cross, and Mrs Edwards were patrons of the Club at the time of the incident. He was unable to recall who else was there at that time. He gave evidence that Mr Olsen and Mr Knight were not at the Club at the time of the incident.
49 In the course of the evening he said he heard a raised female voice, he later identified as Mrs Edwards', using offensive language. He went over and asked what was happening, to which Mrs Edwards replied, “He (Cross) called me a slut.”
50 According to Mr Rumble, Mrs Edwards continued swearing at Sergeant Cross notwithstanding Mr Rumble’s caution “to ease up a bit” (Affidavit ,R Rumble,9 April 1995, par5). Mr Rumble asked Mrs Edwards to leave, which she did.
51 Mr Rumble said Mrs Edwards had not made a written complaint to the Club regarding Sergeant Cross’s alleged slur. He recalled Mrs Edwards’ verbal complaint against Sergeant Cross. Mr Rumble said he had questioned Sergeant Cross who denied the allegation. The matter was taken no further.
Board Voting Procedures
52 Mr Rumble gave evidence that decisions regarding admission to Club membership are made by the Board of Directors of the Club. The Secretary Manager was not part of the decision-making process though he/she provided advice to the Board on request and took minutes of the meetings.
53 Mr Rumble said the Board, in assessing applications for membership or re admission, “Just find out who the person is and then it’s up to the Board. They direct themselves. They don’t discuss much at all.” (T p195 at L32-33) No formal criteria are used.
54 Mr Rumble identified the following examples of unacceptable behaviour which could lead to suspension of membership privileges:
- · Swearing, abusive language or obscene language, particularly where the member refuses a request from staff or management to cease the use of the language;
· A second notification of misbehaviour of any kind;
· Physical abuse or assault of other members, staff or management;
· Refusal to leave premises after being refused service for intoxication.
55 Complaints concerning unacceptable behaviour by Club members are referred to the next meeting of the Board for determination. Where management is concerned that a member’s behaviour represents a risk to other members or staff, management may, at its discretion, suspend membership on an interim basis until the matter is determined at the next meeting of the Board.
Suspension of Mrs Edwards' Membership
56 Mr Rumble characterised Mrs Edwards’ behaviour on the evening of 24 February as falling within the first category of unacceptable behaviour, namely swearing and abusive language. Before 24 February the Club had no reason to raise concerns in relation to her behaviour. He agreed that Mrs Edwards’ behaviour on the evening of 24 February did not involve any physical violence and in his opinion did not represent a risk to other Club members or staff.
57 Mr Rumble was not in attendance at the Board meetings of April 1995 and December 1996 when Mrs Edwards’ membership was considered. He said no one had asked him about the 24 February incident. However he believed that the Board would have been aware of Mrs Edwards’ side of the story as he had verbally advised the President and a few other Board members.
Previous Decisions of the Board on Suspension
58 In his affidavit Mr Rumble listed the names of the 65 individuals suspended from the Club in the period January 1995 to April 1999. Mr Rumble identified that 29 of this group were of Aboriginal descent; 36 were non-Aboriginal. In cross-examination Mr Rumble provided information on the alleged inappropriate behaviour of each suspended member listed and their race.
59 Mr Rumble said Club members, Anthony Atkins and Desmond Smith were suspended from the Club for one month in 1995 following a heated argument involving “some pushing and shoving”. In cross-examination Mr Rumble was asked whether he could offer any explanation for the different penalties imposed against Janice Edwards as compared to Messrs Atkins and Smith. Mr Rumble said, “It’s actually not up to me. I have got nothing to do with it. It goes to the Board and the Board decides.” ( T p161,L31-33).
60 Mr Rumble was asked for his opinion of the worst example of unacceptable behaviour by a Club member. He nominated an incident where a member, Mr Moore, had thrown a glass hitting another member, cutting him on the chin. His penalty was for the life of the Board. Mr Moore did not re-apply for membership.
61 He said most of the members suspended between 1995 and 1999 were barred for the life of the Board.
Jean Honeyman
62 Mrs Honeyman is the assistant manager at the Club.
63 On 15 April 1995 she was working at the Club as a bar stewardess. She gave evidence that as she left the Club that evening at about 9.30 to 9.45pm she saw Janice Edwards and her husband arguing. They were standing just outside the entrance to the Club foyer. Mrs Honeyman said that Mrs Edwards was using loud and offensive language at the top of her voice.
FINDINGS OF FACT
64 While we have not made direct reference to all evidence in this Inquiry, we have taken all evidence into account.
65 The evidence establishes that on 24 February 1995, Mrs Edwards attended the Club. She had been drinking. At about 10.30pm she approached Sergeant West, an off-duty police officer and raised with him her concerns about the progress of an Ombudsman’s investigation concerning her son.
66 Sergeant Cross who was also a patron at the Club that evening intervened and asked her not to disturb Sergeant West on a social occasion. The applicant alleges that Sergeant Cross called her “a slut”. He denies this allegation. He agrees however that the applicant said to him, “Don’t call me a slut.” Other witnesses heard this. The only natural and reasonable inference to be drawn from this evidence was that Sergeant Cross did call Mrs Edwards a slut.
67 In cross-examination Mrs Edwards claims that Sergeant Cross called her a “black slut”. This is inconsistent with her affidavit evidence and that of other witnesses. We are not prepared to accept her evidence on this point.
68 Sergeant Cross’s taunt inflamed Mrs Edwards. The weight of evidence shows she was shouting and using abusive language. Mr Rumble asked her to desist. She persisted and was eventually asked to leave. She complied with the request. She continued shouting and using abusive language outside the Club.
69 We accept Mr Knight’s evidence that he was present at the Club and was witness to the incident. While it may have been that Mr Olsen was at the Club for part of the evening, the weight of evidence does not support a finding that he was present at the Club at the time of the incident between his wife and Sergeant Cross.
70 On 27 February Mrs Edwards was advised that her Club membership had been revoked pending determination by the Club’s Board at their next monthly meeting.
71 Except where a member’s inappropriate conduct represents a physical threat to patrons or staff, membership privileges are not withdrawn until the alleged misconduct is considered by the next monthly Board meeting. Mrs Edwards’ behaviour on the evening of 24 February could not be considered threatening.
72 On 15 April, during the period of her suspension, she visited the Club to ask her husband for her house keys. She did not enter the body of the Club but remained in the foyer. She had been drinking. When her husband emerged from the Club with her keys, she was highly agitated. They argued loudly. She was shouting and using offensive language.
73 Of the 65 members suspended during the period 1995 to 1996, the usual penalty was “life of the Board”. This was the case irrespective of the nature of the alleged inappropriate behaviour. In this period at least 25 members were suspended for “language.” Of these approximately 13 were Aboriginal and 12 non Aboriginal.
Evidence of Mrs Edwards' behaviour after December 1996
74 Evidence of Mrs Edwards’ alleged inappropriate behaviour was admitted to evidence on a provisional basis. This evidence could be relevant only on the issue of her credit in relation to her claim that she does not use foul or abusive language, drunk or sober. We reject her evidence on this point because it is contradicted by reliable witnesses who were present at the Club on 24 February 1995 and 15 April 1995. It is therefore unnecessary and irrelevant to consider what she may have done after December 1995.
RELEVANT LEGISLATIVE PROVISIONS
75 The relevant statutory provisions are those relating to race and sex discrimination by registered clubs.
Race Discrimination
76 Section 4 of the Act defines race to include “colour, nationality, descent and ethnic, ethno-religious origin”.
77 The test of what constitutes discrimination on the ground of race is set out in s 7 of the Act which states:
- (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
- (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
78 Section 20A(1) makes it unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of race by:
- (a) by refusing or failing to accept the person's application for membership, or
79 Section 20A(2) makes it unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race:
- (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club,
(b) by depriving the person of membership or varying the terms of the person's membership,
80 The Act also makes it unlawful to discriminate against a person on the grounds of their sex: s24. The test of what constitutes discrimination on the grounds of sex is in all material respects identical to the s7 test of the race discrimination:
- 1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
- (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
81 Section 34A (1) makes it unlawful for a registered club to discriminate against a person who is not a member of the registered club on the grounds of sex :
- (a) by refusing or failing to accept the person's application for membership, or
in the terms on which it is prepared to admit the person to membership.
- (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club,
(b) by depriving the person of membership or varying the terms of the person's membership, or
(c) by subjecting the person to any other detriment.
83 Section 4A of the Act provides if:
- (a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.
SUBMISSIONS
Applicant’s submissions
84 The applicant’s case is based on the direct discrimination provisions of the Act. The essence of the submissions put by counsel for the applicant is that the actions taken by the Club, namely the April 1995 suspension and the later refusal to re-admit her to membership, were discriminatory, referrable to Mrs Edwards’ race and gender.
85 We understand Counsel for the applicant argues that even if the respondent’s case regarding Mrs Edwards’ behaviour on the evening of 24 February is taken at its highest, the punishment of membership suspension and the later refusal to readmit her to membership was unnecessarily harsh. In short, Ms Black argues the punishment did not fit the crime, because she was an Aboriginal woman.
86 Ms Black asks the Tribunal to contrast the following examples of the Club’s treatment of non-Aboriginal males with its treatment of Mrs Edwards: the failure to act after Mrs Edwards’ husband swore loudly at Mr Cross on Club premises, and the one-month suspension of Messrs Atkins and Smith following a verbal altercation involving some pushing and shoving.
87 Of particular significance argues Ms Black, is the uncontested fact that Mrs Edwards is the sole example of a suspended member refused readmission after the expiration of their suspension. Many of the applicants for readmission were suspended for behaviour involving physical violence, behaviour that the Club considered more serious than that for which Mrs Edwards had been suspended.
88 The Tribunal was referred to the Club’s failure to investigate Mrs Edwards’ complaint against Mr Cross. This contrasts sharply, argues Ms Black, with the Club’s treatment of the applicant who was referred to the Board for disciplinary action notwithstanding the absence of any complaint being made against her.
89 The respondent’s submission that the applicant has been unable to identify any examples of discriminatory treatment of either Aboriginal persons and /or women is irrelevant, argues Ms Black. The applicant’s case is to be determined on an assessment of whether Mrs Edwards has been the subject of discriminatory treatment. It is unnecessary for Mrs Edwards to establish a pattern of discrimination to succeed.
Respondent’s submissions
90 Mr McKay, for the respondent, submits that the Club’s actions, about which the applicant complains, do not amount to unlawful discrimination.
91 Mr McKay submits that the reason the respondent’s Board rejected Mrs Edwards’s application for re-admission in December 1996 was because of the applicant’s reputation for inappropriate behaviour when intoxicated. The Board is entitled to reject such an application providing the rejection is not based on “discriminatory” grounds.
92 The applicant, argues Mr McKay, has not identified any policy or practice of the respondent that suggests the Club operates a discriminatory policy in relation to membership admission or the disciplining of members. Indeed, Mr McKay submits, notwithstanding the occasional difficulty that has confronted the Bourke community in the past, the respondent has operated a racially integrated Club to the satisfaction of the majority of its members, both Aboriginal and non-Aboriginal.
93 Mr McKay submits that in asking the applicant to leave the Club on the evening of 24 February, Mr Rumble acted reasonably. His decision must be considered against the background of Sergeant Cross’s sobriety in contrast to Mrs Edwards’ intoxicated state and the disturbance her behaviour was causing. It was also reasonable that Mr Rumble failed to take Mrs Edwards’ complaint further as the complaint was never formalised.
CONCLUSIONS
Has the Respondent acted unlawfully?
94 To succeed in her complaint the applicant must establish, on the balance of probabilities, that the Club unlawfully discriminated against her on the grounds of her race or sex (as defined in s7 and s24 respectively) or both. The applicant must establish the following two elements to establish discrimination under s 34(A) and s20(A):
· that the respondent Club treated her less favourably, in the same or similar circumstances than the respondent Club treated or would treat a person of a different race or sex or both; and
· that the less favourable treatment suffered by the applicant was "on the ground” of her race or sex or both.
95 The subject of the complaint is the decision to bar the applicant for the life of the Board in April 1995 and the Board’s decision not to readmit her to membership in December 1996.
96 We understand the applicant’s case to be that the following actions of the Club amount to further evidence of less favourable treatment: the applicant’s removal from the Club on the evening of 24 February 1995; her suspension by Club management on 27 February 1995; and the dismissal of the applicant’s complaint against Sergeant Cross.
97 The Tribunal must first consider whether the actions of the Club about which Mrs Edwards complains constitute less favourable treatment.
The applicant’s removal from the Club on the evening of 24 February 1995
98 The Tribunal is satisfied on the evidence that Mr Rumble’s removal of the applicant on this evening does not constitute less favourable treatment. As found by the Tribunal, the Applicant was arguing loudly and using offensive language. She was intoxicated. She continued after being asked to “tone it down” by Mr Rumble. The evidence supports a finding that a non-Aboriginal person, male or female, would have been requested to leave the Club’s premises in the same circumstances, or circumstances not materially different.
99 We are not persuaded by Ms Black’s argument that the failure to remove Sergeant Cross at the same time points to evidence of “less favourable” treatment. It is apparent from the evidence that Mr Cross’s behaviour on the evening of 24 February was demonstrably different from that of Mrs Edwards.
100 The evidence of Mr Rumble is that the Club’s primary concern is not what is said in private discussions between patrons but whether the behaviour of one or more Club members interferes with others’ quiet enjoyment of the Club. However distasteful Sergeant Cross’s remarks may have been, they did not represent a threat to the quiet enjoyment of other patrons. Of course, if he had repeatedly made such comments in private conversations, his behaviour may have amounted to harassment. There is no evidence that this is the case.
The April 1995 decision to bar the Applicant for the duration of the Board
101 Ms Black argues that the April suspension of Mrs Edwards amounts to less favourable treatment on two counts: first, the manner in which the complaint came before the Board; and second, on account of the severity of the penalty imposed.
102 Ms Black argues that the manner in which the complaint against Mrs Edwards came before the Board stands in contrast to the Club’s treatment of Mrs Edwards' complaint. Notwithstanding the absence of a complaint, Mrs Edwards' alleged inappropriate behaviour was referred to the Board of the Club.
103 Ms Black asks the Tribunal to contrast Mr Rumble’s perfunctory treatment of the applicant’s complaint. He merely asked Sergeant Cross if he called Mrs Edwards “a slut” and accepted his denial. Neither he nor Club directors made further enquires.
104 We are not persuaded by this submission. There is no evidence, as suggested by Ms Black, that the Board requires a complaint to be lodged by another Club member or some other person, before an incident of alleged inappropriate behaviour is considered. Indeed it would appear from the evidence that in the normal course, Club management refers examples of alleged inappropriate behaviour to the Board. The process by which Mrs Edwards' complaint was referred to the Board does not appear to be unusual.
105 It is clear that Mr Rumble was quick to accept Sergeant Cross’s word against Mrs Edwards. Again we are not persuaded that this is evidence which would support a finding of “less favourable treatment”. Mrs Edwards was intoxicated. Sergeant Cross was sober. No doubt Cross’s status as an officer of police was a factor in Mr Rumble’s assessment. However regrettable it may be that the word of a police officer may be given greater credibility than that of a member of the public, it is of itself not conclusive evidence of anything other than that fact.
106 It is also relevant that Mrs Edwards was given an opportunity to put her provocation defence to the April 1995 meeting of the Board. While we have no evidence on what occurred at that meeting we believe it reasonable to assume that Mrs Edwards used the opportunity to bring Sergeant Cross’s provocative comments to the Board’s attention.
107 Ms Black further submits that the severity of the penalty imposed by the Board, namely suspension for “life of the Board” is additional evidence of Mrs Edwards' less favourable treatment.
108 Before examining this submission it is necessary to make some general observations on the evidence presented concerning the Club’s practice of disciplining members accused of inappropriate behaviour.
109 As found by the Tribunal, the overwhelming number of members suspended during the period January 1995 to April 1999 were suspended for “life of the Board”. While there was limited evidence before the Tribunal on the precise nature of the alleged misconduct in each case, it is apparent that from 1995 to1999, “life of the Board” was the standard sentence handed down, irrespective of the nature of the alleged inappropriate conduct.
110 It is also relevant to note that for those individuals suspended for the life of the Board, the actual length of their suspension was determined primarily by the timing of the complaint, ie the time the complaint against them came before the Board, rather than the nature and severity of the alleged misconduct. Thus a member involved in a physical fight might only be suspended for one month if their charge came before the Board in the final month of its term. In contrast, a member suspended for a minor verbal altercation may find themselves suspended for close to a year if their alleged misbehaviour came before the first meeting of the Board.
111 From the evidence it is clear that during the period 1995 to 1999 successive Boards of the Club have taken a ‘one size fits all’ approach in dealing with membership suspensions. What is unclear, given the absence of evidence before the Tribunal, is the practice of the Board in dismissing complaints of alleged inappropriate behaviour by Club members.
112 There is no evidence of a pattern of discrimination in the Club’s treatment of women or Aboriginal people in relation to membership suspension. If anything, the evidence tends to show that the club operates a non-discriminatory policy. That, of course, does not preclude it from singling an individual out for racial or sex discrimination. However it is reasonably powerful circumstantial evidence supporting the respondent’s case.
113 We deal now with the issue of whether Mrs Edwards was treated less favourably by the Club in the same circumstances, or not materially different circumstances, than a non-Aboriginal person, would have been treated.
114 Ms Black referred the Tribunal to the Club’s comparatively light treatment of club members Atkins and Smith. It is difficult not to conclude that this penalty of one month was lenient in comparison with the treatment afforded other members, Aboriginal and non- Aboriginal, male and female. The respondent did not provide the Tribunal with any evidence that might explain this anomaly.
115 Whatever the explanation, a single example of disparate treatment (if indeed it is) does not of itself support Mrs Edwards' complaint of less favourable treatment. It is our view that it is more instructive to look at the evidence of the Club’s treatment of all suspended members in the period surrounding Mrs Edwards' suspension. From an examination of all the evidence we are unable to draw the inference that Mrs Edwards was treated less favourably than non-Aboriginal members, male or female.
116 We do not find the claim of less favourable treatment substantiated.
Board’s refusal to readmit Mrs Edwards to membership
117 Ms Black submits that the Board’s failure to accept Mrs Edwards' application for readmission in December 1996 is evidence of the Club’s less favourable treatment of the applicant. Ms Black argues that the Board, when considering Mrs Edwards' application for readmission, had before it only two examples of alleged misconduct. These were the incident involving Sergeant Cross on 24 February 1995 and Mrs Edwards' argument with her husband at the Club during the period of her suspension on 15 April 1995.
118 Ms Black refers the Tribunal to other examples of members suspended for fighting and physical violence who were readmitted on application at the expiration of their suspension. And yet the applicant was not readmitted despite the fact that her misconduct on the evening of 24 February 1995 did not represent a threat to other patrons or Club staff.
119 The evidence supports a finding that the treatment of Mrs Edwards was less favourable than that afforded non-Aboriginal persons, both male and female, and Aboriginal persons, again both male and female. That the evidence indicates that Mrs Edwards was treated less favourably than a person of her own sex or race, does not negate a finding of “less favourable treatment” within the meaning of s20(A) and s34(A).
Management’s suspension of Mrs Edwards on 27 February
120 Mr Rumble gave evidence that it is not Club practice to suspend an errant member before their alleged misconduct is considered by the Board. Management only takes such drastic action when, in their opinion, the member represents a risk to staff or patrons. Mr Rumble’s evidence accepted by the Tribunal was that in his opinion Mrs Edwards' behaviour on the evening of 24 February did not represent such a risk.
121 The Tribunal must now assess whether this less favourable treatment, namely the 27 February suspension and the December 1996 refusal to re-admit her to membership, was on the grounds of the applicant’s sex or race or both.
122 There is no direct evidence before the Tribunal that these decisions of the Club were based on the applicant’s race or sex or both. The applicant’s case is based on circumstantial evidence.
123 This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone v State HousingCommission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial."
124 The Tribunal recognises the difficulty faced by an applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the applicant was on the ground of the applicant's race or gender.
125 In cases where there is no direct evidence of the discrimination, the applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R.
126 The decision of the High Court in Chamberlain v The Queen (1984) 153 CLR 521 establishes that a Tribunal of fact, such as this Tribunal, should decide to accept a particular fact not by considering the evidence directly relating to that fact in isolation but in the light of the whole of the evidence. It can draw an inference from a combination of facts, none of which viewed alone would support that inference. A fact relied on as the basis of an inference adverse to a party need not be proved to the requisite standard of proof: Dawson J in Shepherd v The Queen 97 ALR 161 .
127 It is open to the Tribunal, having taken into account all the circumstances surrounding the respondent’s treatment of the applicant, to make a finding of unlawful discrimination. However such a finding cannot be inferred where more probable and innocent explanations are available on the evidence: Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319; Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT.
128 In this Inquiry, we have to undertake the same exercise, asking the question whether the evidence taken as a whole supports the inference that the applicant’s race or gender or both were operative factors in the actions of the Club that adversely affected her. The applicant need not establish that her sex and or race were the only reasons for her alleged discriminatory treatment. Section 4A of the Act provides that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination, the act is to be taken to have been for the unlawful discriminatory reason.
129 On the limited evidence before the Tribunal, there would not appear to be any pattern of discrimination in the Board’s decisions relating to readmission of suspended members. Non-Aboriginal males have been readmitted after their suspension for what would appear to be behaviour more extreme than Mrs Edwards. The same can be said for Aboriginal members, both male and female.
130 The respondent argues that this anomaly may be explained by the Board’s knowledge of Mrs Edwards' reputation and by the fact that there is a degree of self-censorship on the part of suspended members. Believing that their applications for readmission will be rejected, they elect not to reapply.
131 There was no reason given in evidence for the Board’s decision to blackball Mrs Edwards’ application for re-admission in December 1996. Mr Rumble was not present at that meeting. None of the Club’s directors was called to give evidence concerning the discussion (if there were any) about the application. It is apparent that there is usually little discussion before the Board members cast their votes by secret ballot.
132 It was open to Ms Black to submit that an inference should be drawn that the directors’ evidence, if it had been given, would not assist the respondent’s case. She did not do so (See Jones v Dunkel (1959) 101CLR 298). Even if she had, the Tribunal would not necessarily arrive at such a conclusion. “The rule [in Jones v Dunkel] cannot be employed to fill gaps in the evidence, or turn conjecture and suspicion into evidence.” (Byrne, D QC & Heydon JD, Cross on Evidence, Buttterworths, Sydney, 1986, p36) That is, the applicant’s case, if it lacks substance itself, cannot be made out by the absence of evidence on the other side.
133 If the evidence were finely balanced, the absence of an explanation from the directors for their decision could lead to an adverse inference against them being drawn more readily. However in this case there is evidence from Mr Rumble that the Board will take into account a person’s general reputation. This is offered as the likely explanation for the Board’s decision.
134 Ms Black submits that the Club had apparently been satisfied only two months before it suspended the applicant that she was a person whose reputation was acceptable to it as she had been granted membership by the club. The implication of her submission is that it cannot have been Mrs Edwards' general reputation that caused the Board to reject her application in December 1996, and that the only other explanation for the rejection is that offered by the applicant: racial and sex discrimination.
135 This submission omits to give any or sufficient weight to the fact that in April 1995, about two months after the applicant had been suspended and barred from the Club’s property, not only did she visit the premises but she proceeded to harangue her husband in loud, acrimonious and abusive terms, using foul language. This was the very conduct that had led to her suspension. Moreover, she appeared to be under the influence of alcohol.
136 The Board would have been entitled to draw the conclusion that the applicant not only became angry and abusive in public when intoxicated, but that she had insufficient respect for the Club’s rules to make her a suitable member. While, of course, in the absence of direct evidence from the Board members, there is a degree of speculation about that scenario, it strikes us as being more probable than the theory advanced by the applicant. This is particularly so when we consider the case in light of the Club’s general policy of non-discrimination against women and Aboriginal people.
137 In all the circumstances we do not consider that the applicant has been able to discharge her burden of proof in relation to this aspect of the complaint.
138 It remains for us to consider whether the Club Manager’s decision on 27 February 1995 to suspend Mrs Edwards from membership was made on the grounds of the applicant’s race or sex or both.
139 Mr Rumble’s evidence was that the decision to suspend Mrs Edwards on 27 February had nothing to do with him. We note that the suspension notice issued to Mrs Edwards on that day would appear to be signed by Mr Rumble. This was not raised by either party.
140 Mr Rumble could not explain the reasons for Club Manager Keenan’s apparently anomalous treatment of Mrs Edwards.
141 Why was this decision made? The respondent has put no explanation to explain Mr Keenan’s actions.
142 In the absence of a more innocent and probable explanation, is the Tribunal entitled to infer that Mr Keenan’s less favourable treatment of Mrs Edwards was on the grounds of Mrs Edwards' sex or race or both?
143 Mr Keenan did not give evidence in this Inquiry. As was the case in relation to the directors of the Club, counsel for the applicant did not submit that an inference could be drawn from the respondent’s failure to call Mr Keenan.
144 The authorities are clear. The absence of an explanation cannot be relied upon by itself to provide the missing element of proof. See, for example, Department of Health V. Arumugan (1988) VR 319 and Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92. While the respondent has failed to provide a satisfactory reason to explain Mr Keenan’s actions the Act does not require that of the respondent.
145 On balance, we are not persuaded that taking into account all of the alleged instances of unfavourable treatment and the circumstances surrounding them, that the applicant has made out her case to the requisite standard.
146 Mrs Edwards understandably considers that she was treated unfavourably by the Club. There is no doubt that her treatment at least in relation to management’s decision on 27 February and the refusal to readmit her in December was anomalous. Mrs Edwards is justified in being deeply offended by Sergeant’s Cross’s remarks and the Club’s perfunctory treatment of her complaint. However, the Act requires stronger evidence than has been provided to the Tribunal in this Inquiry, or indeed that may be available to applicant, for a claim of racial or sex discrimination to succeed.
147 The Tribunal orders that the complaint be dismissed. No order is made as to costs.
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