Harrison v The Salvation Army - [2010] FMCA 846

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRISON v THE SALVATION ARMY

[2010] FMCA 846

HUMAN RIGHTS – Allegations of non-provision of services because of race – allegations denied – services in fact altered – race not a consideration in conduct of respondent’s officers – application dismissed.

Human Rights and Equal Opportunity Commission Act 1986

Applicant:

CARMEL HARRISON

Respondent:

THE SALVATION ARMY

File Number:

MLG 1417 of 2009

Judgment of:

Burchardt FM

Hearing dates:

28 & 29 September 2010

Date of Last Submission:

29 September 2010

Delivered at:

Melbourne

Delivered on:

10 November 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr A. Maher

Solicitors for the Respondent:

Marsh & Maher

ORDERS

The Application be dismissed.
The Applicant pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1417 of 2009

CARMEL HARRISON

Applicant

And

THE SALVATION ARMY

Respondent

REASONS FOR JUDGMENT

On 3 June 2009, Carmel Harrison, the applicant, attended the Salvation Army premises in Echuca together with her then 13 year old daughter, Angel. She says that she was told by Vivien Moody, the Salvation Army officer in charge at the time, to:
“… Go back to your own black community. We have our own money here and they have their own money there at the co-op. I won’t help you.”
The respondent denies that any such words were said and says further that Ms Harrison was offered assistance in the form of a food parcel, which Ms Harrison refused.
It is clear that if what Ms Harrison says is correct, she has been subject to discrimination in contravention of the Racial Discrimination Act. It is equally clear that if I accept the respondent’s version, no discriminatory conduct occurred.
For the reasons that follow, I think that the respondent’s version of events is correct and it follows that the application must be dismissed.

Some Introductory Matters

The respondent concedes that Vivien Moody’s actions were, for all effects and purposes, the actions of the respondent, even though

Ms Moody was not it appears necessarily an employee at the time. The respondent also concedes that if what Ms Harrison said was correct the conduct complained of would be discriminatory, and that concession is plainly correct.
The conduct of the case has been made somewhat more difficult by the fact that Ms Harrison has represented herself throughout, as she was of course entitled to. Nonetheless, this made any kind of interlocutory orders for the preparation of further affidavit materials or discovery wholly impracticable and I informed counsel for the respondent at an early directions hearing that the only practicable way to proceed was to simply start the case and see how it went. This view was borne out by the march of events.
This is not a case that requires any detailed exposition of the statute or the case law, at least until the question of liability is determined. It is a dispute that turns on two starkly differing versions of the events. In order to explain the conclusion I have already earlier indicated, it is appropriate to address the evidence given by each witness in turn.

The evidence of the applicant, Carmel Harrison

The applicant’s affidavit, filed on 6 November 2009, sets out her story in a succinct and clear way. She deposed, as is conceded, that she is a female of Aboriginal race. She further deposed that on 3 June 2009 at approximately 12.30 pm she attended at the social welfare program operated by the Salvation Army in Echuca, accompanied by her

13 year old daughter.
It should be noted that at paragraph 3 of the affidavit, she has made it clear that:
“The purpose of my attendance was to obtain assistance to purchase food and petrol by collecting vouchers.”
In the following paragraph of her affidavit, she stated:
“A female representative of the Salvation Army approached me as I was making my way to the voucher collection room. I asked the woman, “what’s the matter?”. The woman replied, “You go back to your own black community. We have our own money here and they have their own money there at the co-op. I won’t help you.”
Ms Harrison further deposed that:
“The exchange referred to (set out above) took place in full view and hearing of a number of men and women who were also attending the Salvation Army Church at that time.”
She went on to say that she immediately left the Salvation Army church with her daughter and that the incident left her feeling humiliated, degraded and upset.
When called to give evidence, Ms Harrison adopted her affidavit as true and correct. When invited by the Court to add anything she felt she wished to, she said at P-8:
“I had my child with me on that day. It did happen, and I did not go to an interview room whatsoever with anybody on that day, and I did not receive any food parcels whatsoever.”
Under cross-examination, Ms Harrison confirmed (P-9) that as she understood, persons were entitled to attend the Salvation Army three times per year. At P-10, she confirmed that she had been going there between 2006 and 2009, and she adopted the lists of dates of visits set out in the respondent’s response, which showed visits commencing on 4 December 2006 through to 8 April 2009.
At P-11, she confirmed that on most occasions she had attended, the form of relief she was provided with was “most probably petrol”. She went on to say that she did not remember in detail what she had been given on previous visits (P-11).
She described the process whereby people were addressed. There were two ladies who were volunteers who had applications which had to be filled out by each applicant putting their name and pension card details on them. People were then required to sit down and wait to be called. She said that you sit down and wait for one of the officers to come directly down the hall to call out your name, whereupon you get up and go with them. It was put to her that this was a little office at the end of about six or seven metres of hallway and Ms Harrison agreed (P-11).
The following exchange took place at P-11 at line 32:
“Yes. And once you’re in the office, what would happen then?”
Answer:
“You’d talk about your situation. If they had it there to provide you with it, they’d help you. If not, you’d - you leave.”
She confirmed that she had always been given assistance on previous visits. She further confirmed that she only saw the person of whom she complained on the occasion of 3 June 2009 once.
Ms Harrison confirmed that she had her then 13 year old daughter, Angel, with her and that they had waited in line just like everyone else. She confirmed about others who were waiting that some “might have been dark like me, but I don’t know them”. She asserted that after the officer in charge had seen several other men, she came back to the table to get the application (P-12). At P-13, she described the critical interchange:
“Well, she picked my name up, said my name, “Carmel Harrison.” “Come on, Angel, let’s go in here.” She – she seen me and she said, “No, you are not coming here. I’m not going to help you.” I said, “Why? What’s going on?” She said, “No, the black co-op. The co-op.” The co-op meaning Njernda Aboriginal Organisation. That’s two different words; it’s a co-operative and an organisation. So whichever way I put it it still means the same. The officer in charge said, “No, I am not going to help you. You go back to your own black co-op; they have their own moneys.” “What are you talking about? I don’t know what you’re talking about? Why? What have I done wrong?” Practically yelled in my face. I stood in shock not knowing why. I didn’t know what I did wrong. I still today don’t know. I said, “Can I have the ticket here, the application form?” I left in utter disgust.”
It is clear that thereafter Ms Harrison went to the Njernda Cooperative and spoke to Sonja Parsons. Ms Parsons took Ms Harrison, together with another woman whose name appears to be Phyllis Kerr but whose presence is completely unexplained, back to the Salvation Army. The daughter, Angel, remained at the Njernda Cooperative. When they got to the Salvation Army, Ms Parsons sought to speak to the officer in charge and after a short wait did so. Ms Harrison said that she did not know what was said between them because she was not there.
At P-19, Ms Harrison explained that after talking to the officer,

Ms Parsons came back and told her she could take her food parcel, and that Ms Harrison replied, “I don’t want no food now.”
Ms Harrison went on to say that she had had no contact with anyone from the Salvation Army and that no-one rang her or tried to speak to her about it in the days following, including Colin Lane.
The evidence of Ms Harrison was given with considerable emotion. It is clear that the events of that day upset her deeply and continue to do so.
It should be noted that at P-16 Ms Harrison, having confirmed that she had never seen Vivien Moody since 3 June 2009, said:
“There was only one person in charge, and his name was Colin Lane, from all those visits I’d had in 2006. And his children used to go to school with my children, and that’s - I only knew him. He was the only one that’s – was kind and gentle enough.”

The Evidence of Angel Harrison (date of birth 8 April 1996)

Angel Harrison, scarcely surprisingly, presented as somewhat intimidated by the process of giving evidence. It is clear that she and her mother had discussed the evidence she was to give. The questions she was asked were to an extent, and scarcely surprisingly, extremely leading.
When first asked what time of day it was when she attended the Salvation Army she replied, “About 9.” Ms Harrison’s then said, “It’s not open then,” and the witness then said, “Maybe lunchtime.”
Having confirmed that she had been to the Salvation Army with her mother, the applicant asked her, “Was the officer in charge there, the one we spoke about in the papers?” (emphasis added) (P-22).
The answer to that question was, “She told us to go back to our black organisation…because she couldn’t help us.” When asked because she couldn’t or she would not, the witness said “she couldn’t”. And when asked what she meant by that, she replied, “There wasn’t enough money for us.” She confirmed that there was no interview on that day and that there was no visit to the office, although that answer was given in response to a question that was, in my view, plainly leading.
Under cross-examination at P-29, the following exchange took place:
“Because it’s over a year ago, have you talked to your mother about this since?…Yes.”
I should make it plain that the clear impression I got was that Angel was talking to the Court in terms that followed what was clearly a process of discussion with her mother. It was obvious that she wished to give answers in such a way as to assist her mother and her mother’s case.

The evidence of Grace Grieve

Ms Grieve was called to give the Court some background understanding of the program that the Salvation Army was operating at Echuca on 3 June 2009. It appears that the Emergency Relief Program, which is what we are concerned with, is funded by Family and Community Service, which is a part of the Department of Human Services (“DHS”). She confirmed at P-32 that there is never enough money and that the program is designed to assist those that are in financial crisis. She further said at P-34 that no matter how difficult things are no-one is sent from the Salvation Army with nothing.
She did say, “But if you have come to our program and you’ve been there, you know, half a dozen times in six months, you know, you will be challenged. You will be challenged, and that’s around hopefully supporting you and giving you the tools to not having to access our service, because it is there for emergency relief. That’s what it’s there for.” (P-34).
Under cross-examination, it became apparent, as I think was probably clear already, that Ms Grieve’s practical experience is limited to the Seymour office where she herself works.

The evidence of Vivien Moody

Ms Moody is a retired Salvation Army officer who together with her husband still presents herself for any work that is requested by the Army that she do. She serves where required.
In about April 2009 she recommenced work for the respondent at Echuca together with her husband. At P-39 she described the work as “emergency food, a lot of referral.” Referral is a reference to domestic violence and pharmaceutical and housing and the like. She went on to say, “The Salvation Army in Echuca only do emergency relief for two hours on a Wednesday because they’re spread evenly amongst the different agencies in the community.”
The other agencies apparently involved are St Vincent de Paul and

St Luke’s, together obviously with the Salvation Army. She described the process whereby applicants are triaged as:
“In Echuca they would come into the back hall. There would be volunteers there who would then ask the prospective clients to fill in a form which would take their name, address, date of birth if they were willing to give it, their Centrelink number, and the number of siblings that they were looking after. They would then have a number put on the back of that form to determine which order that they would then – the client would then come down to see the person who was interviewing. (P-40)”
She confirmed:
“And where would you be at this point in time?---In the office down the passage.
And why would you be down in the office?---Because of confidentiality and interviewing.
So the interviewing that took place in the office?---Yes, always.”
Having confirmed that her husband was there because he made the entries on the computer, she answered the following question:
“Were there standard types of questions you might ask in those circumstances, or how would you handle an ordinary interview?---All right. Obviously on coming into us – and I say “us” because Brian is an integral part of that. And we would ascertain what their needs were and why they were at that stage. We would then ascertain when their next Centrelink payment was coming. We would also try and ascertain if they had had help from any other – any other agencies within the last week.
Why would you do that?---To try and spread the funds equally around the community.”
She went on to say that she did not recognise the applicant because she sees so many people. She also said at P-40:
“… at that stage because the Salvation Army were limiting their funding, Colin had asked that we would curtail on the amount of food vouchers that were given, but that we could certainly give out food. And so on this particular - it was exactly the same. When Carmel came, we ascertained that her next payment was on the Friday.”
Ms Moody confirmed that the discussion took place in the interview room, but then at P-41 said:
“Well, I would have asked the same questions that I do of anybody.
You can’t specifically recall?---Not, no.”
It should be interpolated at this point that it is quite clear that

Ms Moody has no actual memory of the particular interview with

Ms Harrison and, as I pointed out to counsel during the conduct of the trial, the defence, which does assert a positive state of recollection on her part is clearly, to that extent, misleading and wrong.
Ms Moody did, however, remember seeing Sonja Parsons from the Njernda Community on the day. She said at P-41 that she caused the volunteer to bring Ms Parsons to the interview room:
“Sonja told me that Carmel and her friend had been refused help, and I explained that they hadn’t. Certainly, we hadn’t given out any vouchers, but certainly there was food given, and explained the reason why. And Sonja would have said to us, “That’s fine; I’ll handle it from now.””
She confirmed that Sonja eventually indicated that food was not desired.
At P-42 she was asked:
“Did you at any time refuse to provide relief to someone on that day?---No, never. Never in my life. The Salvation Army policy is that we will always give.
What would you say to the proposition that you refused access to someone in the hall in the main waiting area?…No.
Are you able---?---I only ever would interview anybody in the interviewing room for their – for their own sakes. Even if they had been, say, for instance, the week before, then of course they’d be sent down. I mean, our role was that people would be sent down to us. What transpired in the main hall I would not be privy to.
What do you say to the proposition that you said the words, “You go back to your own black community. We have our own money here, and they have their own money there at the co-op”?---Definitely not. I would certainly have asked if they had been to their own whoever they were, the Aboriginal community, if they could give them any help, as I would ask also if they had been to St Vs to see if they could have help that day.”
Under cross-examination, Ms Moody confirmed that she would see an average of between 24 and 30 people per week and a mixture of races. She further confirmed at P-45 that she saw other Aboriginals that day but that there were no children in the interview room. At P-47, in response to a question as to whether she was lying, she said:
“Our standard procedure – and it never changes, and it’s never changed to me in over 30 years, no matter where I’ve worked for the Salvation Army, and I’m representing the Salvation Army – is that anybody who comes is interviewed in private to ascertain what their needs are.”
She repeated that answer later on at P-47 when having explained the procedure that has already been indicated, she said, “Standard procedure; no reason to change.”
At P-50, on having again denied the central assertion about going to the black community, she said:
“And it would never have taken place in the corridor. Everybody is interviewed individually or, if they’ve got a friend with them, with the friend in the interviewing room.
And I never ever escort anybody down. That’s not my role.”
On the same page the following question was put to Ms Moody by

Ms Harrison:
“Didn’t – you didn’t say nothing about that on this day?---No. I would have asked any Aboriginal – all right, any Aboriginal - if they have had any help from the Aboriginal community, as I would also ask if they’ve had help from St Vincent’s or St Luke’s or whatever, because we have to ascertain that people are getting the right amount of help, as far as we can.”
She went on to say:
“And also I notice that you say about vouchers. Vouchers is not a norm to be given out to everybody. Vouchers are used – and especially even now, they’ve had to tighten up - vouchers are used if people have got medical appointments, say, in Melbourne. Then vouchers would be used for transport to get them down to Melbourne and back. If they had appointments for work interviews, vouchers would be used for petrol. Again, with proven proof that they have got an interview, they would be given. Vouchers are not given for the normal running around or taking children to school or picking them up from school. I’m not saying that that’s what you wanted, but you claim as you – you say it was you - claim as emergency relief. Emergency relief then is food. That’s what ER is.”
At P-51, the following exchange took place:
“And you say today that no racist remarks, no one was told to leave?---Absolutely none. Carmel, if you really knew me and knew my history, our home is always an open home. We’ve had Aboriginal people actually living in our home because they’ve had no where else to go. We’ve actually conducted weddings of Aboriginal people because they’ve had nobody else to do it and paid for the reception.”
She went on to say:
“My response always would have been for the person to be interviewed in the interviewing room: standard procedure. Why would I change it just for you?”

On re-examination, the following question was put:
“Ms Moody, when you indicated you would ask an Aboriginal client whether they’d been to the Aboriginal co-operative, were Aboriginal people the only people you would ask about ---? ---No. No. I have a lady up from Melbourne who told me that she’d been to a particular group in Melbourne, and so I ascertained what help she’d received from that group.” (P-51).

The evidence of Brian Moody

Mr Moody’s evidence was essentially that he had no recall of the relevant events. It was his task to record matters on the computer.

Ms Harrison cross-examined him as to whether the last visit on 3 June 2009 was ever entered onto the computer. This was because it was not in what appears to have been the printout which gave rise to the dates set out in the respondent’s response.
It should be noted that I requested the respondent to produce the printout but the respondent was not able to do so. No orders for discovery had been made for the reasons I have earlier indicated.

The evidence of Sonja Parsons

Sonja Parsons has worked for the Njernda Co-operative for five years and knows, and I would infer is at least reasonably friendly with, the applicant.
She deposed that the applicant came to her on 3 June 2009. She saw Ms Harrison because the person who would ordinarily have seen her was not available.
The words used by Ms Parsons to describe what Ms Harrison said were:
“Carmel had actually been to the Salvation Army in Echuca, and Carmel said she was refused service there and I said – my actual words to Carmel – I said, “Well I find that hard to believe,” and she said, “Well, they wouldn’t give me any cards.” So then I offered to take Carmel to the Salvation Army to find out what had happened.” (P-63)
She went on to say:
“The Salvation Army actually give out food parcels or they used to give out Coles gift cards, where people could go and purchase what they needed.”
I would interpolate and say that “cards” is clearly in these circumstances another word for “vouchers”.
Ms Parsons confirmed that she and another lady who, as I say, appears to be Phyllis Kerr, went back to the Salvation Army hall. Ms Parsons asked to speak to somebody about Carmel and the people who were plainly the volunteers asked her to take a seat.
“I sat down for a while and then they came in and asked me to go in through to the office, and I spoke to a lady there and I don’t remember the lady’s name, I’m sorry. There was a couple of other people in the office and I asked – I said to the lady that I was here with Carmel and I was inquiring what had happened - that Carmel had been refused assistance and the lady said to me that, no, Carmel hadn’t been refused assistance; that Carmel had been there earlier and she had been quite hostile and had actually swore, and she said that Carmel had been offered food assistance and she said but Carmel had refused and I said, “What had she been offered?” and they took me through to a little area there and they showed us a freezer that had meat already prepacked and put in there, and they had like a big pantry area that had, you know, cans of fruit and cereal and things like that and I said, “What happened if the person wanted like the food – the food cards?”. She said, no, they didn’t have them. They only had the food hampers there. They said Carmel was offered the food parcel from there and that she didn’t want the frozen shit.”
Ms Parsons went on to say at P-64:
“I went back out and said to Carmel that the Salvation Army said that, you know, you’re quite welcome to go and, you know, take food and meat and that from their supply there and Carmel said, no, she didn’t want to.”
Under cross‑examination at P-64, the following exchange took place:
“You were in charge at the time, and told you about my complaint about one of the officers in charge.
Is that true? What had actually happened?---No, you didn’t say one of the officers. You said you’d been to the Salvation Army and they wouldn’t offer you any assistance.”
At P-65, the following question was asked:
“I asked for assistance at that day, you said I’d asked, and I explained to you the same situation at Salvation Army, but she told me and Angel – Angel my daughter here, I had to have with me – “go to your own black co‑op.” I don’t know whether I told you that, but I kept on telling everyone at the co‑op I needed assistance. “I don’t know what’s happening at the Salvation Army. Can someone help me find out what is – what they have done wrong to me?” Did I say that to you?---No.
“I got refused,” or whatever?---No. You only said that you – that you hadn’t received any service. “They refused to help you”. That’s the words that you said to me.”
At P-66 the following exchange occurred:
“You’re still saying, today, that I was the one being very abusive and everything. Is that why they refused me? Is that what you got told in ---?---No. No.
--- the office that day? ---No. The words the lady had said to me is that you had gone there looking for assistance. They had offered you the food parcel. You asked for Coles voucher cards. There was none available, but they offered you the food parcels. You didn’t want the food parcels and they said that you were abusive. I’m only going by what they said, Carmel.”

The evidence of Colin Lane

Mr Lane has known Ms Harrison during the time that he was stationed in Echuca between January 2005 and January 2010.
He had met her because he was a chaplain at the primary school her daughters attended, and because she had come to the Salvation Army for assistance on previous occasions.
Having been made aware of the incident that took place on 3 June 2009, Mr Lane formed the view that it was clear that Ms Harrison was upset and he wished to ring and apologise because of that upset.
He said that he tried to ring her on her mobile phone, tried to speak to her on the following Sunday when she attended church, and that he rang her and spoke to her the following week. He confirmed that she declined to speak to him on those occasions.
He was also cross‑examined by Ms Harrison as to the procedure for seeing people and his recitation was entirely consistent with the evidence of Ms Grieve and Ms Moody.

Findings as to Fact

I have set out the evidence in more detail than would ordinarily be the case because it is important in circumstances where there is stark conflict such as here to have a clear understanding.
What makes the case a little unusual is that Ms Moody and her husband clearly had no direct recollection of their interview with Ms Harrison. In many ways, much of what I can make of the evidence comes from the evidence of Ms Parsons which is plainly hearsay, although it is such a contemporaneous account of events as in my view to be admissible and have force.
Although all witnesses gave their evidence confidently and no doubt believed what they were saying, I have no doubt as to what took place.
The applicant, Ms Harrison, attended with her daughter and she wanted vouchers, whether for petrol or for other products.
Because of increasing financial pressures Mr Lane had effectively reduced, if not almost stopped, the issue of such vouchers.
On this occasion, Ms Harrison attended and filled out the form as required by the protocol that the Salvation Army has put in place.
Although Ms Moody could not recall the particular interview, her evidence about her practice and procedure, reflecting as it does some 30 years of experience, is compelling. It is consistent with common sense and ordinary courtesy that people in this sort of need are interviewed in private.
I think it is more probable by far than otherwise that Angel, who plainly went to the Salvation Army hall with her mother, remained with the volunteers. It was the volunteer’s job to take Ms Harrison to the interview room.
It is only common sense that a person in Ms Moody’s position, required to see some 20 to 30 people in only two hours, an average of some four minutes each, would not be spending their time walking up and down the hall, but would remain in the office as Ms Moody asserts is the case.
I think it is more probable than otherwise, particularly bearing in mind the contemporaneous account given by Ms Parsons, that Ms Harrison was disconcerted and/or annoyed by the fact that she was offered food, and frozen food at that, rather than vouchers. Whether or not it was her or some other person who became abusive on the day will never now be known.
Thereafter, Ms Harrison went straight to the Njernda Co-operative and Ms Parsons kindly agreed to return with her. The account given to

Ms Parsons contemporaneously is entirely consistent with what

Ms Moody has told the Court.
Evidence given by Ms Moody in which she denied being racist was in my view entirely believable.
At the end of the day, the Court is required, in cases where there is no written documentation to assist it, to have regard to what makes ordinary sense, as well as to the demeanour of the witness.
The demeanour of Ms Moody was entirely consistent with a person telling the truth as best they were able to remember it. Furthermore, what she said is consonant with common sense. The Salvation Army is not an organisation one would expect to have long term employees who harbour racial bigotry, rather the contrary. It is clear that a substantial number of those who access the emergency relief fund are of aboriginal race, and there is no earthly reason to assume that Ms Harrison was denied any service because of her race.
Indeed, it is clear from Ms Parsons’ evidence that, within a very short time of the matters that so distressed Ms Harrison occurring, an offer of the only sort of assistance that was otherwise available was made.
The evidence of Angel was, unfortunately, in my view heavily influenced by the discussion she has obviously had with her mother about it.
The evidence of Mr Lane that he had tried to contact Ms Harrison and been rebuffed was also plainly true. Ms Harrison herself identified Mr Lane as someone who was essentially sympathetic to her.

Mr Lane’s evidence was given in an entirely believable way and

Ms Harrison’s denial that anybody from the Salvation Army had tried to contact her after the events of 3 June 2009 is plainly wrong.
Taking all the evidence as a whole, I am fully satisfied that Ms Harrison was not told to go to her own black co‑operative as she asserts, nor was she refused service. It is more probable than otherwise that she was asked whether she had received any assistance from the Njernda Co-operative because Ms Moody was plainly in the practice of asking all applicants whether they had received assistance from other relevant potential donors.
This, however, is not a matter that was in any way impelled by questions of race, but rather the need to ensure that this emergency relief was given to those who most needed it.
As I have earlier indicated, Ms Harrison has not made her case that the words of which she complained, (which I note she plainly did not say to Ms Parsons when she saw her shortly thereafter) were said to her. It follows that the application must be dismissed with costs.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 10 November 2010