Hussein v Commonwealth of Australia Department of Human Services Centrelink
[2015] FCCA 1440
•29 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUSSEIN v COMMONWEALTH OF AUSTRALIA DEPARTMENT OF HUMAN SERVICES CENTRELINK | [2015] FCCA 1440 |
| Catchwords: HUMAN RIGHTS – Claim under the Racial Discrimination Act 1975 (Cth) – whether applicant was required to leave Centrelink premises because of his race or ethnic origin – whether alternative service arrangements were implemented because of applicant’s race or ethnic origin – application dismissed. |
| Legislation: Racial Discrimination Act 1975 (Cth), ss.11, 11(c), 13, 18 |
| Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Nagarajan v London Regional Transport [2000] 1 A.C. 501 |
| Applicant: | QURBAN ALI HUSSEIN |
| Respondent: | COMMONWEALTH OF AUSTRALIA DEPARTMENT OF HUMAN SERVICES CENTRELINK |
| File Number: | SYG 2527 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 & 7 August 2014 |
| Date of Last Submission: | 4 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2015 |
REPRESENTATION
| Applicant in person. |
| Solicitors for the Respondent: | Mr N Gouliaditis of Australian Government Solicitor |
ORDERS
The application is dismissed.
The parties have liberty to apply to the Court by 19 June 2015 in relation to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2527 of 2013
| QURBAN ALI HUSSEIN |
Applicant
And
| COMMONWEALTH OF AUSTRALIA DEPARTMENT OF HUMAN SERVICES CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise out of an incident that occurred at the Auburn office of Centrelink in the afternoon of 28 February 2012, and its aftermath. The incident was Centrelink’s Service Centre Manager demanding that the applicant, Mr Hussein, leave the premises. The aftermath was Centrelink’s withdrawing the provision of face-to-face services to Mr Hussein.
Mr Hussein claims that, in the course of his being required to leave the office, the Service Centre Manager racially abused him. He says he was required to leave because of his Hazara ethnicity and, for that reason, he was discriminated against, contrary to the Racial Discrimination Act 1975 (Cth) (RD Act). Mr Hussein further claims that Centrelink implemented the alternative servicing arrangement because of Mr Hussein’s ethnicity, also contrary to the RD Act.
The Commonwealth accepts the Service Centre Manager required Mr Hussein to leave the Centrelink office. It denies, however, Centrelink staff racially abused Mr Hussein, or demanded that he leave the office because of his race or ethnicity. The Commonwealth says Centrelink staff demanded Mr Hussein leave because he was acting in a manner that was threatening to Centrelink staff and other customers. The Commonwealth also denies it altered Mr Hussein’s service arrangements because of his ethnicity.
Mr Hussein’s claims, therefore, turn on the resolution of a number of contested issues of fact. Was Mr Hussein racially abused in the course of his being required to leave the Auburn Centrelink office, and was he otherwise asked to leave because of his race or ethnicity? Or was Mr Hussein required to leave because he was considered to be a threat to Centrelink staff and other customers, as the Commonwealth contends? And did Centrelink alter Mr Hussein’s service arrangements because of Mr Hussein’s race or ethnicity, as Mr Hussein claims?
I will proceed as follows. I will first identify the competing accounts given by Mr Hussein and witnesses called on behalf of the Commonwealth. Second, I will identify and summarise other contemporaneous evidence relating to the incident. These consist of CCTV footage and an audio recording of a telephone call Mr Hussein made to 000 during the incident. Third, I will make findings about what occurred on 28 February 2012. Fourth, I will identify the events that occurred after the incident. Finally, I will consider whether Mr Hussein has established that the Commonwealth breached the RD Act.
Mr Hussein’s account of the incident
The incident, as recalled by Mr Hussein, was as follows.[1] Mr Hussein arrived at the Centrelink office in Auburn at around 4.40 in the afternoon on 28 February 2012. After waiting in a line for 15 minutes, he was called by a staff member. Although Mr Hussein does not state the name of the staff member who called him, it is not in question that it was Ms Aranka Novak who called him. Ms Novak was then employed as a Customer Service Officer at the Auburn Centrelink office.
[1] Mr Hussein’s account is set out in a document dated 10 March 2013 that is attached to the application he filed in this Court. I admitted the document as exhibit M.
Mr Hussein informed Ms Novak he had a particular problem with Centrelink for the past two months and that, after trying again and again, Centrelink was unable to fix the problem. The problem concerned Mr Hussein’s wife. Ms Novak informed Mr Hussein she could not address the problem without the permission of Mr Hussein’s wife.
Mr Hussein then asked whether Ms Novak could sort out an issue he had with his employment pathway plan. Mr Hussein brought a letter with him about that issue which he showed to Ms Novak. The following then occurred:
She looked at the latter [sic] and started saying for me to be able to put you on that plan you will have to be looking for work because you are only studying part time or you could apply for a parenting payment and your wife could apply for newstart payment. I [r]eplied, I have just transferred the family tax benefit into her name and you are telling me to do it all over again. I told her that my wife goes to TAFE and I look after children then she told me you should start looking for work and, I replied if I start looking for work and my wife goes to TAFE, where should I leave my children and then she said leave your children with your wife. I replied my wife goes to TAFE and you want me to start looking for work. She was confused and did not know what she was talking about and the argument was turning a little bit louder.
At that stage, another lady appeared and “started shouting at me to behave my self [sic]”. Although Mr Hussein does not identify her name, the lady Mr Hussein says appeared was Ms Jodie Kennedy, the Service Centre Manager at the Auburn Centrelink office. Mr Hussein tried to explain to Ms Kennedy the problem he was discussing with Ms Novak, and requested that she “please at least try to solve my problem”. Ms Kennedy kept on shouting and told Mr Hussein to get out of the office. The lady said words to the effect of “piss off” and “I do not want to see your ugly Asian face and get the fuck out of here”. Mr Hussein tried to tell Ms Kennedy to behave herself, and to stop showing Mr Hussein attitude, and that if she did not stop he would use the same attitude toward her, but Ms Kennedy “got really angry by me saying that”. Mr Hussein calmly requested to see the manager so that he could lodge a formal complaint about Ms Kennedy’s behaviour. Ms Kennedy said she was the manager and that “this place belongs to me”. Ms Kennedy then told the security guard to get Mr Hussein out of the office whichever way he could. Mr Hussein dialled 000 and asked for police assistance. He wanted to stay in the Centrelink office but decided to leave the office because of Ms Kennedy’s threats and the presence of the security guard. Ms Kennedy threatened Mr Hussein to have him arrested for trespass.
Mr Hussein waited outside the office for the police to arrive. When they arrived, the police approached Mr Hussein in an intimidating way. One of the officers requested Mr Hussein provide some identification, and Mr Hussein gave his account of what occurred. After the police officers had spoken with Ms Kennedy, the police told Mr Hussein he could get arrested for trespass if he decided to stay, and that he should go home and not come back to Centrelink for the next 24 hours, and that, if he did, he would be arrested and charged.
Mr Hussein also gave evidence under cross-examination. He said he had been frustrated with the service he had been provided with by Centrelink’s Merrylands office, and that was the reason he went to the Auburn Centrelink office.[2] Mr Hussein had been dealing with the Merrylands office for two months, and that office had given him wrong forms and wrong instructions.[3] He accepted that things started to get out of control,[4] and that occurred when Ms Kennedy intervened.[5]
[2] T46.45
[3] T47.10
[4] T43.1
[5] T44.35
Ms Novak’s account of the incident
Ms Novak, who, as I have already said, was employed as a Customer Service Officer at the Auburn Centrelink office, says that at around 4.50 pm on 28 February 2012 she saw a customer at her desk.[6] Although Ms Novak does not give a name, there is no question that Mr Hussein is the customer to which she intends to refer. Ms Novak says Mr Hussein wanted to lodge a form to claim a particular benefit. After Ms Novak informed Mr Hussein she could not process his request because he did not meet the relevant eligibility criteria, Mr Hussein “became upset and said words to the effect of “You do what I tell you to do””. Ms Novak said she could not do that.
[6] Ms Novak’s account is contained in her affidavit made on 7 March 2014
Ms Kennedy then came to Ms Novak’s desk. Ms Novak explained “what was happening”. Ms Kennedy “explained and confirmed the situation to” Mr Hussein. A conversation to the following effect occurred:
The customer said: Who the fuck are you?
Ms Kennedy said: I am the manger of this office.
The customer said: No you’re not. The manager is a man.
I said: She is the manager.
Ms Kennedy said: I am a manager of this office. Now, Aranka will do the form for you but she will do it the proper way.
The customer said: No, fuck you, you’re not telling me what to do.
The security guard arrived and stood near Ms Kennedy. Although Ms Novak does not mention his name, the security guard she intended to refer to is Mr Murat Uysal. The conversation continued as follows:
The customer said: Fuck you, get out of my way.
Ms Kennedy said: Leave the premises now.
The customer said: No, I will not, I will call the police.
Ms Kennedy said: If you do not leave the premises now or change your language, I will call the police.
As Mr Hussein was moving around the office, Mr Uysal said to Mr Hussein: “Please leave the premises until something else happens”. Mr Hussein then appeared to speak into his mobile phone saying in a loud voice words to the effect: “There is this Aussie bitch and she thinks that she is a manager”. Ms Kennedy and Mr Uysal continued to urge Mr Hussein to leave the office. Mr Hussein “then moved back and forth in front of the office”.
Under cross-examination, Ms Novak repeated that after she informed Mr Hussein that the rules and regulations did not permit Ms Novak to do what Mr Hussein wanted, he became “a bit upset about that”[7] and “you brushed me off and says, “You do as I say you do”.[8] The next process when a customer does not accept what a customer service officer advises “is to call the team leader”.[9] Ms Novak, however, did not call the team leader because at that point “I was still trying to explain to you . . . what are the rules and regulation”.[10] In answer to the question whether there was any physical contact or whether Ms Novak was threatened or abused, Ms Novak said “[y]ou were quite persistent”.[11] Ms Novak accepted “there was no threat nothing made . . . at that time”,[12] although Ms Novak did say that Mr Hussein’s saying “you do as I tell you to do” sounded as if Mr Hussein was forcing Ms Novak to do what Mr Hussein was telling her to do.[13] Ms Novak repeated the substance of what she said in her affidavit about what occurred when Ms Kennedy approached her and Mr Hussein. Ms Novak said that when Ms Kennedy came over, Ms Novak “explained the situation to her”, and then Ms Kennedy “explained it to you again why it cannot be done”,[14] the conversation being “this is why we cannot do this for you but we can do this and this for you”.[15]
[7] T65.10
[8] T65.15
[9] T66.5
[10] T66.15
[11] T66.25
[12] T66.45
[13] T67.15
[14] T68.15
[15] T69.25
Ms Novak otherwise gave evidence in cross-examination that reflected the substance of the evidence she gave in her affidavit. She maintained she heard Mr Hussein say into the phone “this Aussie bitch” even after the audio recording of Mr Hussein’s call to 000 was played to Ms Novak.[16] Ms Novak, however, acknowledged that she could be wrong in her recollection in that regard,[17] although, after making that acknowledgement, she did say in answer to a question from Mr Hussein that “[a]s far as I can recall that is what you said”.[18]
[16] T77.10
[17] T78.20
[18] T78.35
Ms Kennedy’s account of the incident
According to Ms Kennedy, on the afternoon of 28 February 2012 she was working at the Auburn Centrelink office as Service Centre Manager.[19] At around closing time her attention was drawn to Ms Novak who was with a customer who was being “quite loud”. Although Ms Kennedy does not name the customer, there is no doubt she intends to refer to Mr Hussein. Ms Kennedy says she observed Mr Hussein speaking loudly and “leaning across the desk towards Ms Novak and moving into her personal space”. Ms Kennedy observed Ms Novak sitting back on her chair, not leaning forward as a staff member would normally do when assisting a customer, and heard Mr Hussein making demands in a loud voice, using sentences beginning with the words “You do”. Ms Kennedy says she does not remember the words Mr Hussein used but she does remember Mr Hussein “was swearing at Ms Novak”.
[19] Ms Kennedy’s account is contained in her affidavit made on 11 March 2014
Ms Kennedy went to Mr Hussein and introduced herself as the manager. She said to Mr Hussein in a “soft, calm tone” words to the effect of: “Can I help you? You need to not swear and yell at my staff. Maybe I can have a look at this and see if I can help?”. A short time after introducing herself, Mr Uysal joined Ms Kennedy, Ms Novak, and Mr Hussein. Mr Hussein said words to the effect of “Get the man manager”, and acted aggressively towards Mr Uysal, including swearing. Ms Kennedy said words to the effect of: “We are unable to continue with the interview with this behaviour and I will have to ask you to leave. Please do not return with this behaviour”.
Mr Hussein did not leave. He continued to swear loudly and to use an aggressive tone. Ms Kennedy repeated her request that Mr Hussein leave the premises. When that did not occur, Ms Kennedy read out a standard text as follows:
I am an authorised person for the purposes of paragraph 12(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 and I am directing you to leave by virtue of the powers conferred under the Act. You will be liable to prosecution if you do not comply with this direction.
The duress button was pressed, and the duress alarm sounded. As the alarm sounded Ms Kennedy says she wanted the police, although she herself did not call the police. Ms Kennedy again read out the standard text, but Mr Hussein refused to leave; he kept yelling and swearing. Mr Hussein also yelled into his mobile phone words to the effect of “I want the police to come and arrest the manager because she will not serve me”. Ms Kennedy kept reading the standard text while the applicant was on the telephone. While on the phone Mr Hussein left the office.
Ms Kennedy repeated in her cross-examination the substance of the evidence she gave in her affidavit.
Mr Uysal’s account of the incident
Mr Uysal, the security guard on duty, says that, after he had locked all the doors, he heard loud noises coming from the customer who was with Ms Novak. There is no question that the customer Mr Uysal intends to refer to is Mr Hussein. It appeared to Mr Uysal that Mr Hussein was arguing with Ms Novak. Mr Uysal observed Ms Kennedy watching Mr Hussein. Mr Uysal walked to where Ms Kennedy was standing. After about one minute, Mr Uysal went to leave Ms Kennedy to go over to Mr Hussein and Ms Novak. Ms Kennedy told Mr Uysal that it was okay, she was watching. Mr Uysal insisted that he had to go over to Mr Hussein and Ms Novak. Mr Uysal went over to Ms Novak’s desk and said to Mr Hussein words to the effect of: “Could you calm down a little bit please”. Mr Hussein said he wanted to see the manager.
Ms Kennedy then came to the desk. She asked what was the problem. Ms Novak explained the issues she had been discussing with Mr Hussein, and why she was unable to assist Mr Hussein. Ms Kennedy then tried to explain the issue to Mr Hussein. Mr Hussein said the word “fuck” in a number of sentences and, after he said “Fuck this”, Ms Kennedy said to Mr Hussein words to the effect:
You can’t speak like that in front of my staff. And you can’t speak like that when there are kids around. Get out of my office.
Ms Kennedy then pressed the emergency button which sounded the alarm. Mr Uysal asked Mr Hussein to go outside. After telling Mr Uysal not to touch him, Mr Hussein got out his mobile telephone. In response to Ms Kennedy asking Mr Hussein what he was doing, Mr Hussein said he was going to call the police. Mr Uysal walked with Mr Hussein to the door so he could leave.
Mr Uysal prepared a security incident report dated 28 February 2012 in which he provided the following narrative of what occurred (errors in original):[20]
Customer so agresif to staff I went next to staff and told customer can u come down a little bit he said I want to talk to manager Manager come & customer use bad language manager gave . . . 3 warning he did not lisining he use bad language and manager said customer leave the office and customer try to call police but manager already pres to emergency button I asked customer can u wait outside he said don’t touch me I said I don’t touch you can u wait outside I look to door 10 minutes later 2 police come office come I take one of the police manager other police he went to customer & manager deal with police police talk all to report & they went
[20] Affidavit of M Uysal made on 7 March 2014, annexure “C”. The errors are in the original.
Mr Uysal gave evidence in cross-examination which was substantially the same as the evidence he gave in his affidavit.
The CCTV footage
There is in evidence CCTV footage[21] of the incident which, however, does not record any sound. Mr Hussein exhibited an ambivalent attitude to the CCTV footage. The basis of his ambivalence is that the footage had been provided to him by the Department for the purposes of these proceedings, and the images of persons who appear on the footage but who have nothing to do with these proceedings were distorted by pixelation so their identity cannot be determined. Mr Hussein did not accept the integrity of the CCTV footage and said the Department could have manipulated it.[22] Mr Hussein, however, did not object to my viewing the CCTV footage.
[21] Exhibit A
[22] T184.25-T187.15
I have viewed the CCTV footage and have found nothing that suggests to me the CCTV footage is not that which it purports to be. I propose, therefore to rely on it. It shows the following.
At one side of the office Mr Hussein is sitting on a chair next to a desk leaning on his arms that are placed at the edge of the desk. On the left side of the desk there is a computer screen. Mr Hussein is speaking, although the view of the person to whom he is speaking is blocked by what appear to be two wooden frames between two counters. Twenty seconds into the footage, as he is talking, Mr Hussein is pointing with his finger to something that is on the desk. At this stage Mr Uysal enters the scene. He moves to beside the counters that are some metres away from where Mr Hussein is sitting, and places a key in a drawer. He looks towards Mr Hussein and moves towards him, but then decides to move away. One minute and twenty seconds into the footage, as he is talking, Mr Hussein is again pointing his finger to something on the desk. Mr Uysal continues to observe Mr Hussein from a distance.
At about 1:47 minutes into the footage Ms Kennedy appears and moves past Mr Uysal. At about 2:14 minutes into the footage Mr Uysal moves towards where Ms Kennedy went. Although Ms Kennedy cannot be seen, it is apparent Mr Uysal spoke with Ms Kennedy. Ms Kennedy then moves to the middle of the office where two other customers are waiting in line. Ms Kennedy has a conversation with those two customers. She is facing where Mr Hussein is sitting while she is addressing the first customer and then she turns to her side. At 2:52 minutes into the footage Ms Kennedy breaks her conversation with the two customers and, after turning to glance at Mr Hussein, she walks towards Mr Uysal and appears to ask him to provide her with something from one of the counters. Mr Uysal complied with that request by obtaining and providing to Ms Kennedy what appears to be a card. Ms Kennedy had a further discussion with the two customers, referring to the card which Mr Uysal brought to her. Ms Kennedy’s conversation with the first customer in line ended at around 3:40 minutes into the footage.
At around 3:45 minutes into the footage Ms Kennedy moves towards Mr Hussein. Initially she stands one metre behind Mr Hussein but then moves about two metres behind him. By 4:05 minutes into the footage, Mr Uysal moves towards Mr Hussein and stands to the left of him. At 4:33 minutes into the footage, a customer at one of the counters turns to look towards where Mr Hussein is sitting. Both Ms Kennedy and Mr Uysal remain in their respective positions up to about 4:53 minutes into the footage. Both Ms Kennedy and Mr Uysal observe Mr Hussein, but without saying anything. During that time, Mr Hussein continued his discussion with Ms Novak. At 4:53 minutes into the footage, Ms Kennedy moves towards Mr Hussein’s right and continues to move to an unattended desk on the left of Ms Novak and in front of which there are two chairs. The desk and chairs are to the right in front of Mr Hussein. Ms Kennedy appears to have said something to Mr Hussein as she made this movement. When she reaches the desk on the left of Ms Novak, Ms Kennedy pushes one of the chairs towards the desk, and pulls out and pushes in the other chair. She then retraces her steps to the right of Mr Hussein, and continues her movement until she stands next to Mr Uysal on the left of Mr Hussein. Ms Kennedy appears to have spoken to Mr Hussein as she made this movement, and Mr Hussein’s head followed Ms Kennedy’s movement from his right to his left.
At 5:11 minutes into the footage, just before Ms Kennedy ends her movement towards Mr Uysal, Mr Hussein is speaking to Ms Kennedy. He does so with some animation, extending his arm to what appears to be a document on the desk, and points to the document two times as he is talking to Ms Kennedy. At 5:14 minutes into the footage, Ms Kennedy speaks to Mr Hussein. At 5:17 minutes into the footage, Mr Hussein again speaks to Ms Kennedy, pointing three times to the document. At 5:20 minutes into the footage, Mr Hussein and Ms Kennedy are speaking to each other. As Ms Kennedy speaks, Mr Hussein also speaks, holding his hands out with his palms facing upwards. Ms Kennedy also moves her hands. At 5:27 minutes into the footage the same customer that turned around earlier turns around again and looks over towards where Mr Hussein is sitting. At 5:28 minutes into the footage, Mr Uysal begins to talk to Mr Hussein and, as he speaks, Mr Hussein motions with his left hand towards his left three times. At 5:33 minutes the customer looks over again. At 5:34 minutes into the footage, as Mr Hussein is motioning his hand for the third time, Ms Kennedy points towards what I infer is the entrance of the office, and then proceeds to touch a document on the desk that was to Mr Hussein’s right. It appears the document belonged to Mr Hussein because at 5:35 minutes into the footage he grabs it and suddenly stands up. At 5:38 minutes into the footage, Mr Hussein is standing up about half a metre away from the desk. He says something, and points his hand downwards. As he is talking, Ms Kennedy appears to be pointing towards the position of the CCTV camera which appears to be near the entry to the office. Ms Kennedy then speaks and motions her pointed finger towards the position of the CCTV camera.
At 5:45 minutes into the footage Mr Hussein walks away from the desk towards the door, but then turns to his right and moves into the middle of the office. Mr Hussein then moves around the middle of the office looking for something in his pocket. As he is doing this, Mr Uysal follows him, remaining close to him in a manner that indicates Mr Uysal is seeking to lead Mr Hussein out of the premises. At around 5:50 minutes into the footage, Mr Hussein pulls out his mobile phone and at 5:58 minutes into the footage begins to talk. As he is talking Mr Hussein is moving around in the middle of the office and Mr Uysal stays close to him again, apparently trying to guide Mr Hussein out of the premises. Ms Kennedy also stays close to Mr Hussein and she appears to be talking and pointing to one part of the office. At 6:26 minutes into the footage, Ms Kennedy returns to the desk at which Mr Hussein had sat, and Ms Kennedy appears to speak to Ms Novak. Mr Hussein, in the meantime, remains in the middle of the office speaking into his telephone, with Mr Uysal staying close to Mr Hussein. That continued until 8:12 minutes into the footage when Ms Kennedy approaches Mr Hussein. Ms Kennedy appears to be reading from a card. At around 8:30 minutes into the footage, Mr Hussein ceases his telephone conversation and leaves the office. As he leaves, he is talking and on two occasions points his hand to Ms Kennedy.
Audio recording of telephone call to police
There is also in evidence an audio recording of the call Mr Hussein made to 000. Not all of it is decipherable to my ear; but a significant portion is. Mr Hussein told the operator he needed assistance. He said “there is a lady she thinks she is the manager. She says what she says [indecipherable]”. In response to the operator’s question “what’s the problem”, Mr Hussein said: “There is a lady I had some customer dealing issues. She comes up she starts speaking showing me attitude. She was telling me to get out, it’s her office. She does not want to see me, this and that, she has been threatening me to get out says I need to get out [indecipherable] There is a security guard ordering him basically to beat me up to get me out of here”. At that stage of the conversation Mr Uysal can be heard telling Mr Hussein that he needs to go outside. Mr Hussein firmly, but politely said “I will stay here, I cannot go outside”. In response to the operator’s question: “Has anyone had a physical fight?”, Mr Hussein said: “No, but it was almost very close to, like you know”. Mr Hussein says “she says she is the manager”. Towards the end of the recording (which lasts around 2 minutes), Ms Kennedy can be heard repeating the notice under the Public Order (Protection of Persons and Property) Act 1971 (NSW). Mr Hussein responded by saying, calmly, and politely, “I know, I know, OK, OK”. After the operator said the police will be sent, Mr Hussein said “I’ll stand in front of the office”.
What occurred on 28 February 2012?
There are aspects of the evidence given by each of Ms Kennedy, Ms Novak, and Mr Uysal that cause me to doubt the reliability of their accounts. I first turn to the evidence of Ms Novak.
Ms Novak’s evidence
First, Ms Novak says that after she informed Mr Hussein that she could not do what Mr Hussein was demanding of her, Ms Kennedy came to Ms Novak’s desk, Ms Novak explained to Ms Kennedy what was happening, and Ms Kennedy then explained the situation to Mr Hussein. It was at that point, according to Ms Novak, that Mr Hussein began to swear and demand to see the manager. This evidence, however, is not borne out by the CCTV footage. The footage does not disclose any conversation between Ms Novak and Ms Kennedy. It certainly does not indicate a conversation of the sort Ms Novak recalls occurred.
As I have already said, the CCTV footage shows that Ms Kennedy moved to the empty desk on the left of Ms Novak, pushed in one chair, and pulled out and pushed in the other chair, and then moved around Mr Hussein to stand next to Mr Uysal. Further, it is clear from the CCTV footage that Ms Kennedy asked Mr Hussein to leave at 5:36 minutes into the footage, whereas the first verbal interaction between Ms Kennedy and Mr Hussein occurred at 4:53 minutes into the footage. Thus, only 43 seconds passed after Ms Kennedy first spoke to Mr Hussein before he was asked to leave. I find it difficult to accept Ms Novak’s evidence that, during that 43 second period, Ms Kennedy “explained and confirmed the situation to” Mr Hussein.
Second, Ms Novak says that the security guard – by which Ms Novak must mean Mr Uysal – came and stood near Ms Kennedy and Mr Hussein after Ms Kennedy and Mr Hussein first spoke and during which Ms Novak says Mr Hussein abused Ms Kennedy. That evidence, however, is not borne out by the CCTV footage. Mr Uysal came and stood next to Mr Hussein before Ms Kennedy came to speak with Mr Hussein.
Third, the audio recording shows that in his telephone conversation with the 000 operator, Mr Hussein did not say words to the effect “[t]here is this Aussie bitch and she thinks that she is a manager”. It is conceivable that Mr Hussein said this into his phone before his call was connected to the 000 operator. I find, however, that Mr Hussein made no such statement. It is inherently unlikely that Mr Hussein would be speaking into a phone before his call had been connected.
Ms Kennedy’s evidence
I also have doubts about the reliability of Ms Kennedy’s evidence. First, Ms Kennedy’s evidence that Mr Hussein was “leaning across the desk towards Ms Novak and moving into her personal space” is not borne out by the CCTV footage. Mr Hussein was certainly leaning on the desk, and on occasion his hand extended across some part of the desk to point to what appears to have been documents on the desk. The footage does not record Mr Hussein moving into Ms Novak’s “personal space”. Second, although Ms Kennedy does not recall the words Mr Hussein used, she says Mr Hussein swore while he was being served by Ms Novak. Ms Novak, however, says Mr Hussein swore after Ms Kennedy came to the scene. Third, Ms Kennedy says that the security guard – by which Ms Kennedy must mean Mr Uysal – joined Ms Kennedy, Mr Hussein and Ms Novak after Ms Kennedy introduced herself as the manager and after she asked whether she could help Mr Hussein. The CCTV footage, however, shows that Mr Uysal joined Mr Hussein and Ms Novak before Ms Kennedy spoke with Mr Hussein. Fourth, Ms Kennedy’s evidence that after Mr Hussein refused to leave he “kept yelling and swearing” is not borne out by the CCTV footage. It is certainly correct that the footage shows that Mr Hussein was refusing to leave the office, even though Mr Uysal and Ms Kennedy were motioning him to leave. The CCTV footage, however, shows Mr Hussein to be calm. That calmness is confirmed by the audio recording of Mr Hussein’s telephone conversation to 000. It is true Mr Hussein said “I will stay here, I cannot go outside”, but he said this calmly and politely. Further, as I have already noted, Mr Hussein calmly said “Ok Ok” as Ms Kennedy was reading the notice under the Public Order (Protection of Persons and Property) Act 1971 (NSW).
Mr Uysal’s evidence
I finally turn to the evidence of Mr Uysal. The broad narrative of his account does not sit well with what the CCTV footage shows. Although the footage shows that Mr Uysal went to Mr Hussein and Ms Novak, there is nothing to indicate that he then spoke to Mr Hussein before Ms Kennedy arrived on the scene. In making this observation, I take into account the relatively poor quality of the footage. However, until Ms Kennedy comes on the scene, Mr Hussein’s face is directed to Ms Novak. He did not turn his head to Mr Uysal before Ms Kennedy came on the scene. And when she did, Mr Hussein turned his head towards Ms Kennedy. Also sitting ill with the footage is Mr Uysal’s evidence that when Ms Kennedy arrived on the scene Ms Novak first explained to Mr Kennedy the issue Mr Hussein had raised and why she was unable to assist, and that Ms Kennedy tried to explain that to Mr Hussein. As I have noted above, the footage does not show any conversation between Ms Novak and Ms Kennedy.
Findings
What, then, occurred at the Auburn Centrelink office at around 5 pm on 28 February 2012? On the balance of probabilities, I find the following occurred.
Well into his consultation with Ms Novak, Mr Hussein became upset when Ms Novak informed him she would be unable to do that which Mr Hussein wanted Centrelink to do. Mr Hussein’s upset was aggravated by his perception that, for the previous two months, Centrelink’s Merrylands office had failed to give him proper advice, and had failed to understand his issues, and he now perceived the Auburn Centrelink office as also failing to understand his issues. Mr Hussein manifested his upset by firmly expressing his point of view in a raised voice and with firm hand movements. Mr Hussein himself says that “the argument was turning a little bit louder”. I accept Ms Novak’s evidence that Mr Hussein said to her words to the effect of “you do as I say you do”, but did so in the heat of frustration. I do not accept, however, that Mr Hussein swore at Ms Novak. Nor do I accept that he had acted in a threatening or otherwise abusive way. I do find, however, that because he spoke with a raised voice, and he expressed his point of view with firmness, it was open to reasonable persons in the positions of Ms Kennedy and Mr Uysal to consider that Mr Hussein’s behaviour was aggressive, and that Mr Hussein, therefore, could potentially pose a risk to the security of Centrelink staff and customers. At the very least, Ms Kennedy was reasonably entitled to form the view that Mr Hussein’s behaviour was behaviour her staff was not obliged to tolerate, and from which her staff ought to be protected.
Mr Hussein’s raising his voice attracted the attention of Ms Kennedy, Mr Uysal, and at least one customer. Mr Uysal went and stood next to Mr Hussein as Mr Hussein continued to talk to Ms Novak. Ms Kennedy stood initially about one, and then two, metres behind Mr Hussein where she observed Mr Hussein’s behaviour. After about one minute, Ms Kennedy moved past the right of Mr Hussein towards an unattended desk that was to the left of Ms Novak, she pushed in one chair, and pulled out and pushed in another chair, then moved past Mr Hussein’s right, went behind him, and then stood next to Mr Uysal who was standing to the left of Mr Hussein. I find that in the course of this movement, Ms Kennedy made some comment about Mr Hussein’s behaviour. I do not accept Ms Kennedy said the words either she or Ms Novak or Mr Uysal say Ms Kennedy said. I find that Ms Kennedy said words to the effect that Mr Hussein was not acting appropriately and that he should act appropriately. Whatever words Ms Kennedy used, I find their effect was close to what Mr Hussein claims Ms Kennedy said, namely, that he needed to behave himself.
There then followed a heated discussion between Mr Hussein and Ms Kennedy that lasted no more than 40 seconds. I do not accept the evidence of Ms Kennedy, Ms Novak, or Mr Uysal that when Ms Kennedy came to where Mr Hussein sat, Ms Novak explained to Ms Kennedy the issue that she and Mr Hussein were discussing, or that Ms Kennedy attempted to elucidate to Mr Hussein those issues. I find that, after Ms Kennedy said to Mr Hussein words that suggested his behaviour was inappropriate, Mr Hussein heatedly said words that at the very least included his wanting to see the manager. I find that Ms Kennedy informed him that she was the manager and asked him to leave the premises. This made Mr Hussein angrier and I think it is likely that Mr Hussein swore at this stage.
Although Mr Hussein showed anger that resulted in his swearing, he quickly regained his composure. He decided he would not leave the premises, despite Ms Kennedy’s demand, but instead telephone 000. I find Mr Hussein intended to obtain some form of police intervention to prevent him from being evicted from the premises. It was not a rational plan, given it was late afternoon, and that it was obvious that Ms Kennedy had resolved that Mr Hussein should leave the premises. He nevertheless proceeded to carry out his intention calmly and politely. I do not accept the evidence of Ms Novak that Mr Hussein said into the phone or otherwise words to the effect of “there is this Aussie bitch and she thinks she is a manager”, or the evidence of Ms Kennedy that Mr Hussein said into the phone words to the effect of “I want the police to come and arrest the manager because she will not serve me”. I do not accept that after Mr Hussein regained his composure he yelled or swore. What then caused concern to Ms Kennedy and Mr Uysal was not any aggressive or abusive behaviour by Mr Hussein; it was Mr Hussein’s refusal to leave the premises. That led Mr Uysal and Ms Kennedy to shadow Mr Hussein so as to guide him off the premises. When that did not appear to have the desired effect, Ms Kennedy left Mr Hussein and then caused the duress button to be pressed.
Was Mr Hussein racially abused?
Mr Hussein submits I should accept his evidence that Ms Kennedy said words to the effect of “piss off” and “I do not want to see your ugly Asian face” and “get the fuck out of here”, and that I should reject Ms Kennedy’s denial, as well as the denials of Ms Novak and Mr Uysal, that Ms Kennedy said words to that effect. Mr Hussein submits I should prefer his evidence because at least part of the evidence of each of Ms Kennedy, Ms Novak, and Mr Uysal is demonstrably wrong when assessed against the audio recording of the telephone call he made to 000. Mr Hussein went so far as to submit that each of Ms Kennedy, Ms Novak, and Mr Uysal was lying.
It is true that the evidence Ms Kennedy, Ms Novak, and Mr Uysal gave about what Mr Hussein said while on the telephone was not borne out by the audio recording. It is also true that I have found other aspects of their evidence not to be credible. That does not, however, mean that Ms Kennedy, Ms Novak, and Mr Uysal lied in giving that evidence. Long before psychologists began systematically analysing the inherent weaknesses of eyewitness testimony[23] – and in particular, the capacity to accurately observe and remember an event – courts were aware of and reflected on the potential weaknesses of witnesses to accurately observe the event in question and retain in memory that which they did observe,[24] and errors in what a witness perceives and recalls is more often due to these weaknesses rather than perjury.
[23] See, for example, E. F. Loftus Eyewitness Testimony 1979, 1996, Harvard University Press, which what may now be regarded as the classical modern study of the topic.
[24] C C Moore A Treatise on Facts : or, The Weight and Value of Evidence 1908 Northpoint, Long Island, N.Y. : E. Thompson Co. Vol 2, Chapter XIV (Observation), Chap XV (Memory)
I find Ms Kennedy, Ms Novak, or Mr Uysal did not lie in giving their evidence. I find that Ms Kennedy, Ms Novak, and Mr Uysal each believed the evidence they gave to be true, but that, in relation to that part of their evidence I have not accepted, they were mistaken in what they perceived of the incident or in what they remembered of the incident or both. One explanation for their mistaken perception or memory is that the incident was one of great tension that created stress to all concerned, and in particular Ms Kennedy and Mr Hussein. Stress is a factor that may affect a person’s ability to correctly observe an event.
That still leaves unresolved the question whether I should prefer Mr Hussein’s evidence to the evidence of Ms Kennedy, Ms Novak, and Mr Uysal. It does not follow that, because I have not accepted some aspects of their evidence, I should also not accept all aspects of their evidence.[25] I first consider the inherent probabilities that a person in the position of Ms Kennedy would say words to the effect Mr Hussein attributed to her.
[25] “Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.” – EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) at [74] (Peter Smith J)
Ms Kennedy occupied a senior position in an organisation it is reasonable to assume provided services to a large number and a wide variety of people, including people from different ethnic or racial backgrounds. It is unlikely Ms Kennedy would have come to assume the position of leadership she held if she was prone to making racial slurs in relation to Centrelink customers. From that I infer that Ms Kennedy was not a person who was prone to making racial slurs and thus, it is unlikely that she made any racial slur during the incident.
There are, however, two other items of evidence that increase the probability that Ms Kennedy did not say words to the effect Mr Hussein claims she said. The first is the audio recording of the telephone conversation Mr Hussein made to 000. Mr Hussein did not in that telephone conversation, particularly after he was asked “what’s the problem”, say that anyone had said to him words to the effect of “piss off” or “I do not want to see your ugly Asian face” or “get the fuck out of here”. As I have set out above, Mr Hussein responded:
There is a lady I had some customer dealing issues. She comes up speaks showing me attitude. She was telling me to get out, it’s her office. She does not want to see me, this and that, says I need to get out [indecipherable] There is a security guard ordering him basically to beat me up to get me out of here.
Had Ms Kennedy said to Mr Hussein words to the effect of “piss off” or “I do not want to see your ugly Asian face” or “get the fuck out of here”, it is likely Mr Hussein would have said so in his telephone conversation with the 000 operator. That he did not do so is evidence, and, in my opinion, strong evidence, that Ms Kennedy did not say words to that effect.
The second item of evidence is a record made by an employee at Centrelink in a computerised log maintained by the Department of Human Services (Department) of the complaint Mr Hussein made to Centrelink on 9 May 2012. The entry records the following:[26]
Customer has called to lodge a complaint in relation to the way he was spoken too [sic] and treated by a Customer Service Adviser (CSA). The customer stats [sic] he was needing help with some extra assistance from Centrelink but felt that staff had been providing the customer with incorrect information that was delaying the assistance he required. The customer stats [sic] when he was dealing with one staff member the (CSA) is [sic] question interrupted and became very loud and started accusing the customer and asking the customer to leave the office, all the customer wanted was some advice and help but the customer stats [sic] the (CSA) would not listen and was asked to leave on the spot. The customer feels he has been treated unfairly and feels the level of service was very over the top and the (CSA) went totally out of the way to make sure the customer was not helped. The customer stats [sic] he will be taking this matter further as he feels he has been discriminated against.
[26] Exhibit B, page 10
There is no reference in this record to Mr Hussein stating that he had been racially slurred and had been the subject of any inappropriate language.
I find that Ms Kennedy did not say to Mr Hussein words to the effect of “piss off” or “I do not want to see your ugly Asian face” or “get the fuck out of here”. I find that Ms Kennedy believed that Mr Hussein was acting inappropriately and that she believed that it was necessary for the protection of her staff to require that Mr Hussein leave the premises. As I have already described, Ms Kennedy’s attention was attracted by Mr Hussein’s conversation with Ms Novak; and she observed him for a little while before she decided to intervene. All this indicates, and I find, that Ms Kennedy assessed the situation and, on the basis of that assessment, considered that Mr Hussein was acting aggressively, that her staff was not obliged to tolerate such behaviour, and that her staff needed to be protected from that behaviour.
Events after 28 February 2012
On 1 March 2012 Ms Kennedy completed an “Alternative Servicing Arrangements Proposal” form (ASA Proposal) in relation to Mr Hussein.[27] It proposed the “[w]ithdrawal of face-to-face services”. The proposal was stated to be based on the following information:
Details of the incident. Customer attended Auburn SC on 28th February at approx. 5pm. He was seen by CSA for EPP update. Attention of security and manager was drawn to customer as he was yelling swearing and intimidating CSA. Manager attempted to difuse [sic] situation by offering alternatives which cust [sic] refused screaming and swearing that it will be done his way. Customer was advised that his behaviour was inappropriate and that we would be unable to assist him while he was yelling and swearing. customer [sic] then began making threats to manager and security guard at which point he was directed to leave the SC. Customer refused to leave and duress was activated. Customer was advised that police had been called, he still refused to leave but did move to the centre of the SC where he call 000 requested police assistance as we would not service him and had told him to leave.
[27] Exhibit 2
This summary of the incident bears little resemblance to what I have found occurred. I have found that, although Mr Hussein spoke with a raised voice and in a manner that could be considered aggressive, he did not swear or intimidate Ms Novak. Ms Kennedy did not offer Mr Hussein any alternatives which he refused to accept. There is no evidence that Mr Hussein made any threats to the manager (Ms Kennedy) or to the security guard (Mr Uysal).
Under the heading “Details of individuals impacted”, the proposal contained the following:
There were 5 CSAs serving customers in the vicinity of the incident each stated that their customers were effected and that they provided support to them by completing the business as quickly as possibly [sic] so they could leave the site. The CSA servicing the customer involved, the security guard, and the manager.
The ASA Proposal was submitted to Mr Chant who was employed by the Department as Service Leader of Sydney, Centrelink. In that capacity Mr Chant apparently had the authority to approve alternative servicing arrangements with customers of Centrelink. Based on the matters contained in the proposal, Mr Chant decided it was appropriate to withdraw face to face services to Mr Hussein.
A letter dated 1 March 2012 recording that decision was sent to Mr Hussein.[28] The letter, which was signed by Mr Chant, stated:
I am writing about your visit to Auburn Customer Service Centre on 28th February 2012. Your behaviour during this visit has been reported to me as being verbally threatening and aggressive. I understand that as a result of your behaviour, the police were required to attend the office.
This type of behaviour is distressing to staff and other customers in the office and is unacceptable in any Centrelink Customer Service Centre or any other location where you have contact with Centrelink staff.
[28] Exhibit H
Under the heading “Changes to how you can contact Centrelink” the letter continues as follows:
After careful consideration, I have decided to change the way you can contact Centrelink. This is because your behaviour during your recent visit to Auburn Customer Service Centre was not acceptable.
The letter then described the alternative servicing arrangements (ASA) that were to apply to Mr Hussein. In short, Mr Hussein was permitted to deal with Centrelink only by telephone or by fax or by letter. Finally, the letter stated that the ASA “will be reviewed on 6th June 2012 and you will be given an opportunity to contribute to this review”.
On 9 March 2012 Mr Hussein contacted the Customer Relations Unit of Centrelink and lodged a complaint about the incident that occurred on 28 February 2012.[29] According to an internal email of the Department,[30] the complaint was recorded as a “Staff Attitude Complaint”, and it was noted that the customer wanted a senior officer to return his call to discuss the matter further. Mr Hussein was told that “a call will be returned within three days”.
[29] Exhibit B, page 5
[30] Exhibit B, page 5
The same internal email records that on 12 March 2012 the following occurred:[31]
[31] Exhibit B, page 5-6
RM Monica made phone contact with customer with regards to CRU complaint. Customer stated that he was not provided with a professional service at Auburn SC by the manager as he was advised to leave the office without his enquiry being resolved. Customer stated that the manager used inappropriate language towards him. Customer stated that he has called the police whilst he was at the office and stated that he is taking the matter further with the antidiscrimination board. Customer was aware of the current ASA that is in place till [sic] June 2012.
RM apologised and advised that feedback will be provided.
Also according to the internal email, Mr Hussein posted a letter dated 9 March 2012 complaining about the ASA implementation, but Mr Hussein’s complaint “was not addressed at the time”. It was not until around 4 June 2012, when the Auburn Centrelink manager contacted Mr Hussein to discuss the ASA, that the manager became aware of the complaint Mr Hussein had lodged on 9 March 2012. The internal email records:[32]
Mr Hussein’s ASA was reviewed by the new Auburn SC Manager (different Manager to when the original incident took place) and this review took place on 4 June 2012. The Manager contacted Mr Hussein to discuss the ASA as well as discussing the complaint he had lodged. The Manager decided to end the ASA and Mr Hussein is now able to access DHS via all channels.
It is unclear when the office realised they had not seen the letter of complaint that was scanned with the original ASA letter. However the Manager of Auburn discussed this matter with Mr Hussein during the ASA review discussion on 4/06/12 and apologised for the complaint being missed. The Manager made it very clear to Mr Hussein that the ASA removal and the complaint letter were two different issues that she was addressing for him and the letters she was sending were not connected. He understood this to be the case. The Manager offered an apology to Mr Hussein about the incidents that had taken place and advised him that he was very welcome to attend Auburn SC, however Mr Hussein advised he did not ever want to attend Auburn SC again following the events that had taken place in February. A letter of acknowledgment was sent to Mr Hussein in relation to his complaint.
[32] Exhibit B, page 6
The letter of acknowledgment to which the internal email referred appears to be that dated 12 June 2012 which stated as follows:[33]
I would like to formally acknowledge receipt of your letter dated 9 March 2012. In the letter you expressed your concerns regarding the service you received from staff at the Auburn Service Centre on the 28th February 2012.
We apologise for the delay in the response to your complaint. All issues you raised, regarding Centrelink have been investigated and finalised.
[33] Exhibit H
In an undated letter addressed to Mr Hussein which, I find, he received on 10 August 2012,[34] the Department responded to “the issues you raised with the Commonwealth Ombudsman in relation to your dealings with” the Department. The letter stated that its author, Ms Bacusi, spoke with Mr Hussein on 12 March 2012 “about your complaint”. The letter stated:
In response to our conversation, the issues you raised were investigated, feedback was provided to staff and if appropriate, action was taken.
[34] Exhibit L. The basis of my finding is there is written on the front page of the letter “RECEIVED 10/8/2012”
The letter also stated that in June 2012 when the manager of the Auburn Service Centre was reviewing Mr Hussein’s ASA, the manager “identified that you had sent a letter to the office, again raising concerns about the manner in which you were treated”. The letter continues:
On 12 June 2012 the manager of the Auburn Service Centre sent you a letter acknowledging your complaint and confirming that the issues you had raised had been investigated.
In your letter you have asked that the incident be reviewed. In response to your contact with the Customer Relations Unit, and our conversation on 12 March 2012, the issues you raised have been reviewed and feedback provided. The matter has been finalised.
It appears the Department did undertake an investigation of the incident. That is evident from the letter dated 25 May 2012 the Department sent to the NSW Anti-Discrimination Board in response to the complaint Mr Hussein made to that body.[35] The Department states in that letter that it “has conducted inquiries regarding the incident on 28 February 2012, in which Mr Hussein alleges he was subject to racial discrimination”. More importantly, the letter sets out what the Department claimed occurred on 28 February 2012 in more detail than is set out in the “Alternative Servicing Arrangements Proposal”. This indicates that the Department did conduct inquiries into the incident.
[35] Exhibit O
Although the Department undertook an investigation, it did not in any meaningful way address the complaint Mr Hussein made about the incident on 28 February 2012. In particular, the Department did not provide to Mr Hussein any “feedback” which the Regional Manager, in her telephone conversation with Mr Hussein on 12 March 2012, indicated would be provided to Mr Hussein.
There is another incident that features largely in the claims Mr Hussein makes. The incident, which appears to have occurred shortly before 12 April 2012, [36] is described in the following record maintained by the Department:[37]
Customer states he was sent an SMS to attend an appointment and when he arrived has [sic] was asked to leave as there was a withdrawal of face to face service in place and was advised the Police would be called.
[36] Exhibit B, page 6
[37] Exhibit B, page 3
Mr Hussein, in cross-examination, asked Mr Chant whether Mr Chant was aware that that had occurred to Mr Hussein. Mr Chant answered as follows:[38]
I wasn't aware of that and I would apologise if that happened. Generally, what that - I am aware that that has happened to other people as well, and generally what that tends to be is that we have an automated reminder service, and because the imposition of the withdrawal of face to face is probably administrative rather than system-based, the system doesn't know that you are not allowed in. So I would apologise for that. We have - I'm pretty sure we have instituted changes since that back in 2012 so that that's less likely to happen, but I am aware it has happened to other people and I apologise for that, if it happened.
[38] T109.30
Legal Principles
Mr Hussein claims the Department discriminated against him because he is a Hazara. He contends the discrimination occurred in two ways. The first was in Ms Kennedy’s racially abusing him on 28 February 2012 and requiring Mr Hussein to leave the Auburn Centrelink office. The second was the Department imposing the ASA. Because I have found Ms Kennedy did not racially abuse Mr Hussein, the only claims I will consider are the claims based on Mr Hussein’s having been required to leave the Centrelink premises, and the Department’s imposing the ASA.
If Mr Hussein can establish those matters he will also establish that the Commonwealth contravened s.11(c) and s.13 of the RD Act. Paragraph (c) of s.11 provides it is unlawful for a person to require another person to leave or cease to use any place that members of the public are, or a section of the public is entitled or allowed to enter or use “by reason of the race, colour or national or ethnic origin of that other person”. Section 13 provides:
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a)to refuse or fail on demand to supply those goods or services to another person; or
(b)to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
These sections must be read with s.18 of the RD Act which provides:
Where:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done for that reason.
There is no issue that Mr Hussein was asked to leave the premises at Centrelink’s Auburn office, and that members of the public or a section of the public were or was entitled or allowed to enter or use those premises. And there can be no issue that the ASA constituted the provision of services to Mr Hussein on less favourable terms than the Department otherwise provides those services. The question, therefore, is whether the Department required Mr Hussein to leave Centrelink’s premises, and whether the Department imposed the ASA, “by reason of” Mr Hussein’s race or ethnicity.
Before I consider this question, there are two questions of principle I should address. The first is the scope of the expression “by reason of the race . . . or ethnic origin of that other person”, as used in s.11 and s.13 of the RD Act. The second is the means by which something was done “by reason of the race . . . or ethnic origin of that other person” may be proved.
Meaning of “by reason of the race . . . or ethnic origin of that other person”
Unaided by authority, the engaging in the conduct described in s.11 and s.13 of the RD Act (relevant conduct) “by reason of the race . . . or ethnic origin of that other person” (prohibited reason) would appear to require the presence in the mind of a person who engaged in the relevant conduct of a reason for engaging in the relevant conduct; and that reason is properly to be characterised as relating to another person’s race or ethnic origin. The consequence of this construction, if correct, is that the expression “by reason of the race . . . or ethnic origin of that other person” calls for what Heydon J, in a different context, said is “an inquiry into the mental processes of the person responsible for” the relevant conduct.[39]
[39] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [140].
The meanings of the expressions “by reason of” or “because” or similar expressions have been considered in the context of the RD Act and other antidiscrimination statutes. The authorities, as they stood in 2001, were reviewed by Kiefel J in Creek v Cairns Post Pty Ltd, where her Honour said:[40]
There have been differences of view expressed about the meaning of phrases such as “on the ground of” and “by reason of” in the context of discrimination legislation, and as to whether they require a causal connexion between the act complained of and the characteristic or attribute of the person identified in the legislation, which is to say the reason for the conduct. In some judgments it has been held that it does not matter if intention or motive are absent.
[40] [2001] FCA 1007 at [19]
Her Honour,[41] however, favoured the view expressed by McHugh J in Waters v Public Transport Corporation:[42]
[41] [2001] FCA 1007 at [24]
[42] [1991] HCA 49 at [9]
The words “on the ground of the status or by reason of the private life of the other person” in s. 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against.
. . .
The words “on the ground of” and “by reason of” require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (“the victim”). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.
There are suggestions in the authorities, however, that the expression “by reason of” includes subconscious reasons for acting. For example, in Sharma v Legal Aid (Qld) the Full Federal Court said (emphasis added):[43]
It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433.
[43] [2002] FCAFC 196 at [40] (Heerey, Mansfield and Hely JJ)
In their reasons for judgment in Purvis v New South Wales,[44] McHugh and Kirby JJ set out two passages from cases that assumed the sufficiency of unconscious reasons for discrimination. One was the following passage from the speech of Lord Nicholls in Chief Constable of the West Yorkshire Police v Khan (emphasis added):[45]
For the reasons I sought to explain in Nagarajan v London Regional Transport ... a causation exercise of this type is not required ... The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
[44] [2003] HCA 62
[45] [2001] 1 WLR 1947 at 1954 [29]
The other referred to by McHugh and Kirby JJ in Purvis[46] is the following passage from the judgment of Ormiston J in University of Ballarat v Bridges:[47]
[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.
[46] [2003] HCA 62 at [163]
[47] [1995] 2 VR 418 at 428
A strong statement of the sufficiency of subconscious reasons is that contained in the following passage from the speech of Lord Nicholls in Nagarajan v London Regional Transport:[48]
All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
[48] [2000] 1 A.C. 501 at pages 511-512
In my opinion, notwithstanding the Full Federal Court’s apparent acceptance in Sharma that a person may engage in conduct for the prohibited reason even if the person is unaware of that reason, that proposition is inconsistent with the reasoning in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[49] where the High Court, in the context of analogous provisions in the Fair Work Act 2009 (Cth), held that the actual reasons of the employer were the only reasons into which it was relevant to inquire.
[49] [2012] HCA 32
In these reasons, however, I will assume that a person may engage in the conduct identified in s.11 and s.13 of the RD Act for the prohibited reason even if the person was unaware of that reason, provided that the proper inference to be drawn from the evidence is that the respondent engaged in the conduct identified in s.11 or s.13 for the prohibited reason.
Before I leave this section of my reasons, it would also be useful to consider what is capable of constituting “by reason of the race” or “by reason of the ethnic origin” of the person who complains of discrimination. The clearest case would be an internal thought by the alleged discriminator to the effect of “I will do X because the person is of a particular race or ethnic origin”. It may be assumed, however, that it will be a rare case where a person would articulate in his or her mind a reason in such precise terms and decide to act for such reason. This will not matter if, on the correct construction of s.11 or s.13 of the RD Act, a person may contravene those provisions even if he or she is unaware of the prohibited reasons. It does matter, however, if a person can breach s.11 or s.13 of the RD Act only if he or she must be aware of the prohibited reason. All that can be said is that a person will act for the prohibited reason if, at the time he or she engaged in the relevant conduct, that person had in his or her mind that the person in relation to whom the conduct was engaged was of a particular race or ethnic origin.
Proof of prohibited reason
In broad terms there are two means of proving prohibited reasons. One is by statements made by the alleged discriminator. If, for example, I had found that Ms Kennedy had racially abused Mr Hussein, as he claimed she did, it would have been a short step to concluding that she required Mr Hussein to leave because of his race or ethnic origin, and that the ASA was imposed because of Mr Hussein’s race or ethnic origin. The second manner would be by showing the discriminator had treated the complainant differently from how the discriminator treated or would have treated persons who are not members of the complainant’s race or of the same ethnic origin. That could be done, for example, by proving the alleged discriminator had procedures for the carrying out of particular tasks but those procedures were not followed in the particular case of the complainant, and there is no reason consistent with the alleged discriminator not having the prohibited reason why the procedure was not followed in the case of the complainant.
Was Mr Hussein racially discriminated against?
Apart from his claim that Ms Kennedy racially abused him, which I have not accepted, Mr Hussein relies on a number of matters for claiming it was due to his ethnicity that he was required to leave the Centrelink premises on 28 February 2012, and for the Department imposing the ASA.
First, Ms Kennedy, Ms Novak and Mr Uysal gave false evidence which, moreover, was highly offensive to Mr Hussein. Second, the Department failed to investigate his complaint and represented, contrary to the facts, that Mr Hussein’s complaint had been investigated. Third, Mr Hussein submits the information contained in the ASA Proposal was incorrect. Mr Hussein submits that each of these matters, considered individually establishes that his being asked to leave, and the implementation of the ASA, occurred because of his ethnicity. He also submitted that it was not open to me to dismiss each of these matters as arising from mistake or general inadvertence because it is inherently unlikely that so many mistakes could have been made in relation to Mr Hussein.
As to the first matter on which Mr Hussein relies, I have already found that, although Ms Kennedy, Ms Novak, and Mr Uysal gave evidence which, in important respects, I did not accept, they did not give false evidence. I have also found, however, that the incident about which they gave evidence was charged with tension. It began with Mr Hussein acting in a manner that could reasonably have been interpreted as aggressive and which could reasonably have been regarded by a person in the position of Ms Kennedy as posing a potential risk to the security of Centrelink staff and customers. When Ms Kennedy intervened, matters escalated to the point where I have found Mr Hussein swore and, as Mr Hussein informed the 000 operator, things got “very close to” a physical fight. In these circumstances, it is not surprising that the recollection of Ms Kennedy, Ms Novak and Mr Uysal were inaccurate to the extent they exaggerated the aggression Mr Hussein in fact exhibited. Their mistaken evidence was not due, however, to Mr Hussein’s race or ethnicity, but to their perception which they genuinely held of what was undoubtedly a highly charged incident.
As to the second matter on which Mr Hussein relies, I have found that the Department did undertake an investigation. It was not, however, an investigation of the sort Mr Hussein believes the Department should have undertaken. Mr Hussein expected that some independent person would investigate his complaints and report back to him. Instead, the Department investigated the matters in its own interest to respond to the complaints Mr Hussein made to the Anti-Discrimination Board of New South Wales. There is nothing to suggest, however, the Department did that because of Mr Hussein’s race or ethnic origin. The explanation for that investigation was Mr Hussein’s complaint to the Anti-Discrimination Board of New South Wales.
I have also found that the Department did not provide to Mr Hussein the feedback the Regional Manager informed Mr Hussein on 12 March 2012 would be provided to him in relation to the complaint he made. That failure was compounded when the Department, in its letter dated 12 June 2012, and in the letter Mr Hussein received on 10 August 2012, asserted that the complaint had been undertaken without providing the “feedback” the regional manager informed Mr Hussein would be provided to him. Again, however, there is nothing to suggest that this occurred because of Mr Hussein’s race or ethnic origin. Inadvertence is a more likely explanation. Another explanation is that Mr Hussein had made complaints to other bodies, and that it was for those bodies, not the Department, to undertake the inquiry that Mr Hussein was demanding.
As to the third matter on which Mr Hussein relies, namely, the incorrect information contained in the ASA Proposal, I have found that it did contain incorrect information. I do not accept, however, that the information was intentionally false. I find that the information reflected what Ms Kennedy believed occurred on 28 February 2012.
Mr Hussein relied on two other matters. One was Mr Hussein’s suffering from post-traumatic stress disorder. Mr Hussein submitted the Department owed him a duty of care by which I understand Mr Hussein intended to submit that those with whom he dealt on 28 February 2012 should have been aware of his condition. There is nothing, however, to indicate Ms Kennedy, Ms Novak or Mr Uysal were aware of Mr Hussein’s medical condition.
The other matter on which Mr Hussein relied was Mr Uysal having described Mr Hussein in the incident report as a person of “Middle Eastern appearance”. Mr Hussein submitted this indicated “they pre-arranged”.[50] The mere fact Mr Uysal described Mr Hussein as a person of Middle Eastern appearance does not indicate that Mr Uysal conducted himself towards Mr Hussein on 28 February 2012 because of Mr Hussein’s ethnicity.
[50] T175.35
There is one final matter I should refer to; and that is Mr Hussein’s attending a Centrelink office in response to an SMS message and being asked to leave. I do not understand Mr Hussein to have submitted that this unfortunate incident occurred because of his ethnicity. In any event, I do not find that the incident did occur because of Mr Hussein’s ethnicity. As Mr Chant said in his evidence, which I accept, the SMS was sent to Mr Hussein in error, and that it was due to a system error.
Conclusions and disposition
Mr Hussein has succeeded in establishing that the information on the basis of which the Department implemented the ASA exaggerated the aggressiveness Mr Hussein displayed at Centrelink’s Auburn office late in the afternoon of 28 February 2012. The inaccurate information, however, reflected Ms Kennedy’s actual perception of what occurred. Ms Kennedy did not racially abuse Mr Hussein. Ms Kennedy believed Mr Hussein engaged in aggressive and unacceptable conduct, and that it was solely on the basis of that belief, not on the basis of Mr Hussein’s race or ethnic origin, that Ms Kennedy demanded and required Mr Hussein leave Centrelink’s premises.
I acknowledge Mr Hussein felt humiliated by his removal from Centrelink’s Auburn office, and by the imposition of the ASA based on information that exaggerated the aggressiveness he actually exhibited during the incident. Mr Hussein’s humiliation, however, was not caused by conduct that occurred by reason of Mr Hussein’s race or ethnic origin. Further, his humiliation was by no means entirely due to Ms Kennedy. Mr Hussein himself must accept some degree of responsibility for it. The incident arose out of his being unable to restrain the frustrations that had built up over what he perceived, correctly or incorrectly, to be the inadequate service and advice he received from Centrelink’s office at Merrylands; and the incident escalated when Mr Hussein was taken to task about his initial behaviour.
Mr Hussein was also humiliated by his attending a Centrelink office in response to an SMS message and being asked to leave. That was clearly an error by the Department, and Mr Hussein had every right to feel humiliated. As I noted earlier in these reasons, however, Mr Chant explained why the error occurred. Mr Chant also apologised for the error.
Mr Hussein has not established the Commonwealth breached the RD Act. I propose, therefore, to dismiss the application. As to the question of costs, my preliminary view is that the Commonwealth should pay its own costs. I will reserve liberty to the parties, however, to apply for an order for costs within twenty one days after I deliver these reasons.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 May 2015
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