Mnyirrinna and Brigalow Brook Pty Ltd - [2009] WASAT 101

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: MNYIRRINNA and BRIGALOW BROOK PTY LTD [2009] WASAT 101

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 23 SEPTEMBER 2008

DELIVERED : 21 MAY 2009

FILE NO/S: EOA 22 of 2008

BETWEEN: SYLVIA MORNO YARNBA MNYIRRINNA
RACHEL MASON
Applicants
AND
BRIGALOW BROOK PTY LTD
Respondent

Catchwords:

Equal opportunity - Allegations of direct discrimination on the ground of race in relation to goods and services, racial harassment in relation to goods and services, and victimisation - Finding that the applicants were not harassed but that, in any event, racial harassment in the context of provision of goods and services does not fall within the ambit of the Equal Opportunity Act 1984 (WA) - Discrimination on the grounds of race alleged to be constituted by request to search bags at a supermarket and subsequent events - Finding that, on the evidence, the request to inspect bags was in accordance with a policy that was applied in a nondiscriminatory way and there was no causal connection between the request to inspect and the race of one of the applicants - Finding that requests to inspect bags were made prior to any assertion of rights based on advice from the Equal Opportunity Commissioner - Finding that there was no intention to cause detrimental consequences to the applicants - Complaints of discrimination dismissed

Legislation:

Equal Opportunity Act 1984 (WA), Pt III Div 3A, s 36, s 37, s 38, s 39, s 40, s 41, s 42, s 43, s 44, s 45, s 46, s 47, s 48, s 49, s 49A, s 49B, s 49C, s 67, s 67(1), s 90(1), s 90(2), s 161

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr TB Lyons

Solicitors:

Applicants: Self-represented
Respondent: Gibson Lyons

Case(s) referred to in decision(s):

Frost and WA Police Service [2005] WASAT 150
Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146
Lennon and State Housing Commission [2006] WASAT 344
Williams and Commissioner of Police [2005] WASAT 349

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants alleged discrimination on the grounds of race in connection with a request made by staff of a supermarket to inspect their bags at the check‑out of a supermarket and the events that followed a refusal by one of the applicants of that request. They also alleged racial harassment and victimisation arising from the same incident.
In relation to the complaint of racial harassment, the Tribunal found that the Equal Opportunity Act 1984 (WA) does not extend to racial harassment in relation to the provision of goods and services but that, in any event, the applicants were not racially harassed.
In relation to the complaint of discrimination on the grounds of race, the Tribunal was satisfied on the evidence that the requests to inspect the applicants' bags were made in accordance with the supermarket's published policy; that the requests were made in a non‑discriminatory way and were not in any way motivated by the race of one of the applicants, and that the applicants were not detained or accused of stealing during the course of their interaction with staff of the supermarket.
In relation to the complaint of victimisation, the Tribunal was satisfied on the evidence that the request to inspect bags had been made prior to any assertion by one of the applicants that the respondent had no right to request to inspect bags and that the applicant had received advice to that effect from the Equal Opportunity Commissioner. Further, the statement by the applicant about advice received was in relation to a general right to refuse inspections of bags, rather than advice in relation to rights under the Equal Opportunity Act 1984 (WA). In addition, the Tribunal was satisfied that the employees of the respondent had not in any way intended to cause any detriment to the applicants and that their request to inspect bags was not in any way connected to any assertion of any rights by the applicants.
Accordingly, the Tribunal dismissed all the complaints.

Background

On 7 May 2008 the Commissioner for Equal Opportunity (Commissioner) referred to the Tribunal under s 90(2) of the Equal Opportunity Act 1984 (WA) (EO Act) complaints made by Ms Sylvia Morno Yarnba Mnyirrinna (Ms Mnyirrinna) and her daughter, Ms Rachel Mason (Ms Mason), against Brigalow Brook Pty Ltd (respondent). Ms Mnyirrinna and Ms Mason are together referred to in these reasons as the applicants.
The complaints were made to the Commissioner by Ms Mnyirrinna and Ms Mason on 23 August 2007 alleging discrimination on the grounds of race, racial harassment and victimisation in the area of the provision of goods, services and facilities. The complaints related to events that were said to have occurred on 27 June 2007 at a Farmer Jack's supermarket in Thornlie (supermarket) operated by the respondent.
The referral informed the Tribunal that on 18 September 2007 the Acting Commissioner had dismissed the complaints of racial harassment and victimisation as misconceived, and that on 7 April 2008 the complaint of racial discrimination had been dismissed as lacking in substance. On 22 September 2007 and 24 April 2008 the complainants gave notice under s 90(1) of the EO Act requiring the Commissioner to refer those complaints to the Tribunal.
At a directions hearing held on 30 May 2008 the Tribunal ordered that the matter be listed for a final hearing on 22 July 2008, and that if any party proposed to give evidence or call any witness to give evidence at the hearing then the party must, by 15 July 2008, file with the Tribunal a signed statement of the witness's evidence and any documents upon which they intend to rely and give copies of those documents to the other parties. The respondent complied with the latter direction but the applicants did not.
On 22 July 2008, at the request of the applicants, the hearing was adjourned until 23 September 2008 and proceeded on that day. At the final hearing the applicants represented themselves and Mr TB Lyons represented the respondent. The Tribunal heard oral evidence from Ms Mnyirrinna and Ms Mason; and for the respondent from Ms Pamela Sharp and Ms Leanne Mahoney.
At the conclusion of the hearing Ms Mnyirrinna requested that she be provided with a transcript of the hearing in order to make written submissions. The Tribunal directed that any submissions be filed within 14 days of receiving a transcript and the respondent was able to make submissions in reply within a further seven days.
In the event, Ms Mnyirrinna was provided with a copy of the transcript but no written submissions were lodged by her. In the absence of any submissions from Ms Mnyirrinna the Tribunal has made its decision and publishes its reasons for that decision as set out in this statement of reasons.

The complaint to the Commissioner

The complaint made by the applicants, apparently prepared by Ms Mnyirrinna, stated that they had been 'slandered, threatened, and detained over 30 minutes by the security guard' at the supermarket, that 'unfounded allegations of stealing' had been made against them; they were 'threatened with arrest, arrested and detained'; that they had been followed around the supermarket by security staff; and that they had been 'threatened with assault detainment by security guard accomplices'. It was alleged that this had occurred 'due to my daughter and I being perceived as an Aboriginal person, an Abo, and targeted by security staff commencing 2000'.
In a statement prepared by staff of the Commissioner, the applicants stated that they had been followed around the supermarket by security staff, slandered, threatened and detained for over 30 minutes because of unfounded allegations of stealing; threatened with arrest by security staff and threatened with violence by other customers in the store; and that they had been arrested and detained while allegedly waiting for police to arrive to search them.

The evidence

Ms Mason, who is of Aboriginal descent and is the adopted daughter of Ms Mnyirrinna, said in her evidence that she and her mother had gone to the supermarket together. They had separated whilst in the supermarket and she had arrived at the check‑out counter shortly before her mother (who was close behind her) and started emptying items from the trolley and from two bags that she was carrying. As she was doing so, a female staff member (whom she now knows to be Ms Mahoney) walked across to the check‑out and asked if she could search the bags carried by Ms Mason. Ms Mason said that she agreed to the search and it was carried out without incident.
Ms Mason said that as her mother arrived at the check‑out, she (that is, Ms Mnyirrinna) was also asked by Ms Mahoney if the bags that she was carrying could be checked. Her mother refused to allow a search of her bags and began to protest loudly about the supermarket staff having no right to ask to search bags and saying that she had received advice from the Equal Opportunity Commissioner to that effect. Although her mother was not swearing, she was making quite a loud noise at the time. Ms Mahoney then asked a security guard who was in the supermarket to come over to the check‑out and he also asked Ms Mnyirrinna if he could check her bag, but she again refused. Either the security guard or Ms Mahoney then said that they would have to call the police and Ms Mahoney went off to an office, presumably to make that telephone call.
Ms Mason said that for a period of time she and Ms Mnyirrinna had sat on chairs near the check‑out and eventually Ms Mahoney came back and said that the police were not going to attend. While this was going on, two other customers in the supermarket, young men, came over to where they were waiting and said to the security guard in a loud and abusive manner that they would make sure that Ms Mason and Ms Mnyirrinna would not leave the supermarket. Both Ms Mahoney and the security guard told the two young men to go away but they stayed around the scene for some time.
Ms Mason said that she had visited the supermarket previously, she was aware of signs on the walls regarding the right of the supermarket to ask to inspect bags and she had no problems with having her bag searched. She agreed that supermarkets had good reason why they would want to search bags of customers at times.
Ms Mason initially said in her evidence that she and her mother had been 'arrested' by the supermarket staff for about an hour. However, she subsequently agreed that she and her mother could have left the scene at any time and that they were not physically prevented from doing so, either directly or indirectly.
Ms Mnyirrinna, who is not of Aboriginal descent but who identifies herself as Aboriginal, said in her evidence that she and Ms Mason separated whilst they were in the supermarket and this caused the security guard to get 'a bit upset'. She said that she had the trolley and both she and Ms Mason were carrying bags. She observed Ms Mason being asked if her bags could be checked and that occurring. When she (that is, Ms Mnyirrinna) was asked if her bags could be checked, she said 'No, I've already checked with Equal Opportunity Commission. They've informed me you have to have a valid reason to search people's bags …'.
Ms Mnyirrinna said that after paying for the items, the staff member, whom she now knew to be Ms Mahoney, continued to harass her and Ms Mason, and other customers in the supermarket started to yell at them, telling them to open their bags. Ms Mnyirrinna said that she '… raised my voice and said again, repeated over and over again, "I've checked with Equal Opportunity Commission. You have to have a valid reason to search people's bags" …'.
Ms Mnyirrinna said that as she and Ms Mason went to move out of the supermarket, the security guard was called over and he commenced to harass them, raising his voice. He smelled of alcohol and looked scruffy. The security guard said that 'if we didn't let him look in the bags, he was going to call the police' and she in turn told him that he could do so. She and Ms Mason then sat on the seats nearby. When staff asked her to go to a room out the back she declined to do so, saying 'we will wait out here for the police'. When the other customers started to intervene, Ms Mahoney asked the security guard to move these other customers along. Ms Mnyirrinna said that Ms Mahoney again asked to look in her bag, saying that she would 'shut her eyes' if she was able to look into the bag. Ms Mnyirrinna said that she refused that request and kept repeating that she had been given advice by the Equal Opportunity Commission about bags being searched.
In crossexamination, Ms Mnyirrinna said that she had not objected to Ms Mason's bag being searched, although she thought she had the right to do so, but she said that she did not accept that a supermarket was entitled to search customers' bags or else they had to have a good reason to do so. She saw this as 'vigilante behaviour in a penal colony'.
Ms Mnyirrinna said that she was not sure how long she and Ms Mason had been detained because she did not wear a watch. She said that she had never had her bag searched before, although she knew that shops asserted a right to do so, and she was not trying to use this particular occasion to test their right to ask to inspect. She said that she had visited the same supermarket the previous week and had not been asked for her bags to be searched.
Ms Mnyirrinna said that when she and Ms Mason were sitting on the seats at the front of the supermarket, she 'would have walked out' but she believed the security officer and the other customers, who were nearby, would have grabbed her. She did not accept that she was free to leave had she wished to do so. She said that she thought the security officer had 'used his bulk and size to usher us onto the seats …' and she said that the guard had touched her shoulder.
Ms Mnyirrinna agreed that she was carrying a large bag that had a number of items in it, including a hat, as well as carrying plastic shopping bags with items in them. She thought that Ms Mason had been carrying only one bag.
Ms Mnyirrinna said that there have been a number of other occasions, dating back to about 1999, when she had been asked in shops to have her bags inspected and that, when asked, she always refused to have her bags inspected. Usually the shops 'put up with it'.
In response to questions asked of her by the Tribunal, Ms Mnyirrinna said that she thought it was not safe to leave because she thought she and Ms Mason might be 'grabbed' by the other customers who were nearby, although she also said that 'we were free to leave'. She said, 'I could have walked out, but it was unsafe to do so'.
Ms Mnyirrinna also said that Ms Mahoney acted professionally, '… doing her job as she had been instructed by the shop'.
Ms Sharp gave her evidence‑in‑chief by way of a witness statement (Exhibit R1), which is to the effect that Ms Sharp is employed as a 'customer service specialist' and provides services to a number of stores, including the supermarket in question in this proceeding. In the course of this employment she supervises the compliance of stores with their internal policies and is involved in the supervision of 11 retail stores. She has been to the supermarket and has personal knowledge of its policies and training and how staff implement those policies.
Part of her role is to ensure that staff are familiar with and implement store policies and she is aware that the supermarket provides a policy manual to all its supervisors and they have a short induction sheet that they provide to new staff. The policy does not single out individual people or races for attention.
Ms Sharp was aware that the supermarket has a sign at the front of its store that notifies customers that it is a condition of entry that they can inspect their bags, and this policy is applied by checking most customer bags that are larger than a piece of A4 paper such as large shopping bags, backpacks and prams. Staff are also directed to check customer bags if a staff member has seen a customer put something in the bag and suspects that the customer is attempting to steal from the store. Because there are sometimes multiple offenders, staff at stores such as the supermarket are encouraged to watch customers closely and a policy of inspecting bags in appropriate circumstances then follows. Unfortunately, staff are sometimes verbally abused when asking to inspect bags, and the response of staff to these customers varies, depending on the person.
In crossexamination, Ms Sharp confirmed that staff are directed to look in bags that are bigger than a telephone book about the size of an A4 sheet of paper. In addition, if staff are suspicious of any customer, then they can ask anyone to have their bags inspected.
Ms Sharp said that advice about security issues is provided by a firm called Epic Security (Epic). She was referred by Ms Mnyirrinna to documents apparently prepared by Epic and attached to a witness statement of Ms Mahoney (Exhibit R2). Ms Sharp said she was aware of those documents and the policies referred to in them, but her job did not include training people about such matters. That was done by Epic and/or the management of each store. However, part of her job is to make sure that at least the supervisors at each store know about the policies and how to put them into practice. Similarly, she would expect security officers employed in stores to know about the policies and how to apply them.
Ms Mahoney gave her evidence‑in‑chief by way of a witness statement that became Exhibit R2, which was to the effect that she was employed at the supermarket as a 'frontend controller' from January 2007. The store had a set of policies for dealing with customers that had been given to them by Epic and she was familiar with the policies, which included information on how to carry out searches of customer bags and when customers could be detained or excluded from the store. Attached to Exhibit R2 were three pages with Epic letterhead. The first page was headed 'Excluding People from your Business' and was to the effect that there is no general right to exclude anyone from business premises, but it may be possible to exclude individuals ‑ such as people who had been convicted of thefts from the business, or offences such as criminal damage or of threatening or offensive behaviour in and around the business premises; or whose past unruly, threatening or offensive behaviour had been documented by staff or customers. If there was a wish to exclude someone, there were specific steps that needed to be taken.
The second page was headed 'Your Rights to Detain a Customer' and stated that business owners and employees do have a right to detain someone they believe on reasonable grounds to have committed or to be committing a criminal offence ‑ by way of a citizen's arrest. The page points out, however, that the staff member may commit a criminal offence or be subject to civil penalties if no reasonable grounds to detain someone exist. Staff are instructed that they must use force only where they have to defend themselves or someone else from an attack, such force being reasonable in the circumstances. A person is not to be searched or questioned and arrangements should be made to hand the person to a police officer as soon as possible. The page concludes with the statement that, if in doubt, staff members should do nothing, other than noting the description of the suspected person and writing it down for the police.
The third page is entitled 'Searching Customers and their Bags' and refers to the right of a business to set conditions of entry to their premises ‑ and that customers can be asked to present their bags and other containers on request for staff to check. If a staff member is going to make such a request, then conditions of entry statements should be displayed prominently so that they can be seen by all people as they enter; staff must be polite and courteous when checking customers' bags; and staff should not touch the customer or their property. Customers should always be asked to open any bag or package themselves. The page states that if a customer refuses to have their bag checked, then the staff member can point out and explain the conditions of entry and ask again to check the bag ‑ and if the customer still refuses, ask them to speak to the manager. If the customer continues to refuse, the customer can be asked to leave. If the staff member suspects that the customer is hiding stolen goods, the police can be called. All bag checks must be voluntary and a customer cannot be detained for refusing a bag check ‑ because that would amount to an arrest and a staff member must have reasonable grounds for arrest.

Ms Mahoney said that she was familiar with these policies and she knew that staff members could ask customers to present their bags, but could not touch the person or the bags or detain the person without reasonable grounds for suspecting they had committed an offence.
Ms Mahoney said that on the day in question she observed another staff member serving two customers at her register, one of whom was a female of Aboriginal or Islander descent, and Ms Mahoney noticed that this customer had a large bag. She approached the register and helped pack the customer's purchases, then asked her if she could check her bag ‑ and the customer complied. Ms Mahoney said she looked into the bag and saw there was a compartment on top of the bag. She asked the customer to lift a garment, which occurred, and that completed the bag inspection without incident. She now knows this customer to be Ms Mason.
The next customer was a Caucasian female who had a large cloth bag, which was bulging. She now knows this customer to be Ms Mnyirrinna. Ms Mahoney helped her pack her purchases and at the end of the transaction asked if she could check the bag. Ms Mnyirrinna replied, in what Ms Mahoney described as a 'very loud and obnoxious manner', 'I know my rights and refuse to show you my bag. You cannot ask me to do that'.
Ms Mahoney said that she explained to Ms Mnyirrinna that it was a condition of entering the store, but she continued to raise her voice and repeated what she had said earlier.
Ms Mahoney called the security officer over and explained the situation to him. He requested to see inside Ms Mnyirrinna's bag ‑ and got the same response, but louder.
At this point another customer (a man) nearby yelled at Ms Mnyirrinna ‑ who shouted back at him. Ms Mahoney said she and the security officer moved the applicants away from the register to the seats in the mall and tried to calm the situation down. The male customer again came over and said the same thing, and by this stage Ms Mnyirrinna was becoming obnoxious, accusing the security officer of being under the influence of alcohol. Ms Mahoney said that the security officer was not affected by alcohol but she did notice the smell of alcohol on the male customer.
The security officer told Ms Mnyirrinna that the police would be called, and Ms Mahoney went to make that call, and whilst doing so got a sign that was displayed in several places throughout the store that states 'It is a condition of entry to this store that bags, parcels and prams may be subject to inspection when leaving. Thank you for your cooperation'. Ms Mahoney said that she showed Ms Mnyirrinna that sign.
Ms Mahoney eventually made contact with police and was told that there would be a long wait before they could respond. She said that she asked the police if there were any other options about how to deal with the situation and she had been told that '… I could let her go, but I should advise her that she's not allowed to come back into the store again with a bag if she's not prepared to disclose the contents'.
Ms Mahoney said she told Ms Mnyirrinna this, who then said that she was going to the television and papers with the matter and accused Ms Mahoney of being racist, saying 'Is it because of me being black or Aboriginal?', to which Ms Mahoney said she replied 'You're whiter than me, how could I be racist?' Ms Mahoney said that Ms Mnyirrinna then left the mall with Ms Mason, still yelling abuse.
Ms Mahoney said that at the time of the incident she had been employed at the store for 15 months and that the area and customers were very multicultural. She said she had become friendly with many customers from all cultures and regularly had a chat with them when time permitted.
Ms Mahoney also said that bag inspections were regularly instigated, with more than 20 per day being undertaken.
In cross‑examination, Ms Mahoney said that every bag should be checked if it was over the A4 size, and the large majority of people who were asked willingly opened their bags without any problem. For those who did not agree, they are asked again, and she thought that the ones who did not agree to show their bags may have had something to hide.
In response to questions from the Tribunal, Ms Mahoney said that at no time did she consider that Ms Mnyirrinna and Ms Mason were being detained or in any way prevented from leaving the store. Rather, Ms Mnyirrinna had '… plonked herself on a chair' and had said '…Well, I'm not moving until the police get here anyway' ‑ or words to that effect. Ms Mahoney said that neither she nor the security guard said or did anything that would indicate that Ms Mnyirrinna and Ms Mason were going to be prevented from leaving.

Consideration

In proceedings under the EO Act, an applicant must prove on the balance of probabilities that a respondent has discriminated against him or her in one of the ways described in the EO Act. Where the respondent relies on an exception to the EO Act to support its conduct or to remove its conduct from the operation of the Act, the respondent must prove on the balance of probabilities that the exception applies: see generally Frost and WA Police Service [2005] WASAT 150 at [23] and Lennon and State Housing Commission [2006] WASAT 344 at [82].

Complaint of harassment on racial grounds

Pt III of the EO Act deals with discrimination on the ground of race. Section 36 of the EO Act defines discrimination on the ground of race in terms that are usually referred to as 'direct' and 'indirect' discrimination. Sections 37 to 49 of the EO Act make it unlawful to discriminate on the grounds of race in a number of situations. I will return to these provisions below. Div 3A of Part III deals with discrimination involving racial harassment in three particular contexts ‑ employment (s 49A), education (s 49B) and accommodation (s 49C).
It is apparent that the applicants' complaint to the Commissioner related to what they perceived to be racial harassment in relation to the provision of goods and services. The Commissioner took the view that that aspect of the complaint was misconceived because, under the EO Act, racial harassment was not unlawful in the area of goods, services and facilities. That view is, in my opinion, clearly correct and for that reason this part of the applicants' complaint must be dismissed. However, on the view of the facts that I have taken as set out below, I am not satisfied that the applicants were in any way harassed by the respondent or any persons for whom the respondent has responsibility. To be fair to Ms Mason, she did not assert at the hearing that she had been harassed. The complaint of racial harassment is dismissed.

Complaint of racial discrimination

As noted above, s 36(1) of the EO Act defines discrimination on the ground of race, relevantly providing that a discriminator discriminates against another person (the aggrieved person) on the ground of race if:
… on the ground of -
(a)the race of the aggrieved person;
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
Section 36(1a) of the EO Act extends that definition of racial discrimination to discriminatory treatment of an aggrieved person because of the race of any relative or associate of the aggrieved person.
Section 46 of the EO Act deals with discrimination on the grounds of race in the provision of goods, services and facilities and relevantly provides that it is unlawful:
… for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race ‑
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 161 of the EO Act deals with situations where one person may be liable for the actions of another person and is in the following terms:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent ‑
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
It is not in dispute in these proceedings, and the Tribunal accepts, that the respondent was in the business of providing goods and services at the relevant time and did provide the applicants with goods and services. Likewise, it was not in dispute, and the Tribunal accepts, that Ms Mason is an Aboriginal person and her claim under the EO Act is a claim on account of her race. Although it was not identified as such in the course of the proceedings, the Tribunal accepts that Ms Mnyirrinna's claim under the EO Act was a claim based upon the race of her associate or relative, Ms Mason.
As noted above at [51] the burden of proving discrimination lies on the applicants on the balance of probabilities. It is not necessary for the applicants to demonstrate an intention on the part of the respondent to harm or discriminate against them, but it is necessary for the applicants to demonstrate a causal connection between the ground of discrimination alleged and the decision or act complained about: see Williams and Commissioner of Police [2005] WASAT 349 at [34] ‑ [38].
Ms Mason, Ms Sharp and Ms Mahoney gave their evidence in careful and unemotional terms. The same cannot be said about Ms Mnyirrinna, who gave her evidence in a way that was, at times, inflammatory and unreasonable. She was, at times, quick to accuse Ms Mahoney of lying ‑ even when Ms Mahoney's evidence was consistent with that given by Ms Mason. In the circumstances, I accept the evidence of Ms Mason, Ms Sharp and Ms Mahoney but I do not accept the evidence of Ms Mnyirrinna in those important respects where her evidence differed from that of the other witnesses. I can readily accept that Ms Mnyirrinna has a deep‑seated sense of grievance about the treatment of Aboriginal people over the years and, it would seem, of treatment of herself by a number of other persons in circumstances that are quite unrelated to these proceedings. I believe that Ms Mnyirrinna has allowed that sense of grievance to colour her attitude towards providers of goods and services such as the respondent, and that this affected, and made unreliable, much of her evidence about the factual events in question in these proceedings.
I am satisfied that the events outlined by Ms Mason and Ms Mahoney occurred in much the way described by them. I am satisfied that Ms Mason and Ms Mnyirrinna were carrying large bags at the check‑out counter and that they were, consistent with the respondent's policy on checking bags, liable to be asked to have their bags checked. It is apparent from Ms Mason's evidence that this occurred in a way that was not overtly by reference to Ms Mason's Aboriginality and that there was nothing about the manner in which the request to examine the bags was made that was in any way discriminatory. The incident continued for longer than it would have otherwise because of Ms Mnyirrinna's refusal to have her bag searched in a loud manner and, at least in part, because of the intervention of other customers. I accept on the evidence that Ms Mahoney and the security guard attempted to minimise the extent of the disturbance in a reasonable manner.
Apart from that given by Ms Mnyirrinna (which I do not accept), there is no evidence to support a finding that Ms Mason and Ms Mnyirrinna were followed around the supermarket prior to arriving at the check‑out, accused of stealing, or threatened with detention or arrest. It is clear on the evidence that, although the applicants were invited to sit on chairs whilst a phone call was made to police, Ms Mnyirrinna chose to remain while that happened ‑ even though it was clear to Ms Mason that she could leave at any time and that Ms Mnyirrinna thought she could leave if she wished but that it might be unsafe to do so because of the involvement of the other customers.
It is apparent from the evidence that Ms Mnyirrinna has strong opinions about the right of shops, such as the supermarket, to inspect customers' bags and that she believes that there is no right to inspect, regardless of any racial aspect of such inspections. These proceedings are not an appropriate forum to consider whether or not supermarkets are entitled to insist on inspection of customers' bags in the absence of any racially motivated element to the request to inspect. I am satisfied that there is no sufficient evidence to the required standard to show that there is any causal link between the request to inspect the applicants' bags and the Aboriginality of Ms Mason. Rather, I accept the evidence that the respondent has a policy about checking bags in certain circumstances and that the policy is, in its terms, non‑discriminatory. There is evidence that the policy is adequately brought to the attention of customers at the supermarket and that the staff who are asked to administer the policy do so in a non‑discriminatory way. I am not satisfied that there was any discrimination against Ms Mason or Ms Mnyirrinna on the day in question and this part of the applicants' complaint to the Commissioner must be dismissed.

Complaint of victimisation

Section 67 of the EO Act makes it unlawful for a person (the victimiser) to subject, or threaten to subject, another person (the victim) to any detriment on the ground that the victim
(a)has made, or proposes to make a complaint under [the EO Act];
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under [the EO Act];
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under [the EO Act];
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under [the EO Act];
(e)has reasonably asserted, or proposes to assert, any rights of [the victim] or the rights of any other person under [the EO Act]; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA or IVB,
or on the ground that the victimiser believes that the [victim] has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
The Commissioner dismissed this complaint because the complainants had not shown that the main reason for any disadvantage suffered by them was due to the complainants asserting their rights, or someone's rights, under the EO Act and the allegations did not fall within the meaning of victimisation under the EO Act.
Once again, it is for the applicants to demonstrate on the balance of probabilities the victimisation complained about. In matters involving victimisation arising under s 67 of the EO Act, the matter or conduct complained of has to be a dominant or substantial reason for doing of the act of victimisation. In addition, there must be an intention to cause detrimental consequences and there must be a causative link between the conduct and the detriment: see Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146 at [143] per McKechnie J; Williams and Commissioner of Police [2005] WASAT 349 at [144].
I am satisfied on the evidence referred to above that Ms Mnyirrinna, when asked if her bag could be searched and subsequently, said words to the effect that she did not have to submit to such a search and that she had obtained some sort of advice to that effect from the Equal Opportunity Commissioner. It is apparent from the evidence that the request to search the bags of Ms Mason and Ms Mnyirrinna was made prior to any statement by Ms Mnyirrinna about having advice from the Equal Opportunity Commissioner. It cannot, therefore, be said that anything done by staff at the supermarket prior to that point in time could be said to be because of those statements, or that the request to search the bags of either of the applicants was in any way motivated by or a response to Ms Mnyirrinna saying anything about the Commissioner or her 'rights'. In any event, I consider that Ms Mnyirrinna's references to not being obliged to submit to a bag search was a reference to a general right not to have her bag searched, rather than any right arising under the EO Act.
More importantly, however, I am satisfied on the evidence of Ms Mason and Ms Mahoney that the requests to inspect the bags and the subsequent dealings between the applicants and Ms Mahoney and the security guard were not in any way caused by anything said by Ms Mnyirrinna that could in any way be brought within any of paras (a) to (f) of s 67(1) of the EO Act. Whatever Ms Mnyirrinna might have thought about the incident, I am satisfied on the evidence that Ms Mahoney and the security guard were doing nothing more than attempting to implement, in a non‑discriminatory way, a policy about bag inspections that Ms Mason and Ms Mnyirrinna knew about. Ms Mason, at least, acknowledged the right of the supermarket to inspect her bags and had no problems with what occurred subsequently. In the circumstances I am satisfied that, whatever Ms Mnyirrinna said about her rights and her taking of advice from the Equal Opportunity Commissioner, the actions of Ms Mahoney and the security guard were not in any way caused by those statements by Ms Mnyirrinna. I am also satisfied that Ms Mahoney and the security guard had no intention to cause any detriment to the applicants. Accordingly, the applicants' complaints of victimisation are dismissed.

Conclusion and orders

For the reason set out above, the applicants have failed to show that the respondent has discriminated against them under the Equal Opportunity Act 1984 (WA) and the Tribunal orders that the complaint of Sylvia Morno Yarnba Mnyirrinna and Rachel Mason against Brigalow Brook Pty Ltd made to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) on 23 August 2007, and referred to the State Administrative Tribunal on 7 May 2008, and the proceedings in the State Administrative Tribunal, are dismissed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER