PICKETT and CHAN - [2010] WASAT 55

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: PICKETT and CHAN [2010] WASAT 55

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)

HEARD: 8 DECEMBER 2009

DELIVERED : 27 APRIL 2010

FILE NO/S: EOA 17 of 2009

BETWEEN: VIOLET PICKETT
First Applicant
TREVOR PICKETT
Second Applicant
AND
ANNA TAK CHAN
Respondent

Catchwords:

Provision of services - Refusal of services - Manner in which services provided - Accommodation - Preaccommodation stage - Race - Less favourable treatment - Damages for hurt and humiliation

Legislation:

Equal Opportunity Act 1984 (WA), s 3(a), s 3(d), s 4, s 4(1), s 5, s 18, s 36, s 36(1), s 37(1)(a), s 37(1)(b), s 37(1)(c), s 38(1), s 46, s s46(a), s 46(c), s 47, s 47(1)(a), s 47(1)(b), s 47(1)(c), s 66K, s 66K(1), s 93, s 127(b), s 127(i)
Equal Opportunity Bill 1984 (WA)
AntiDiscrimination Act 1991 (QLD), s 82, s 82(a), s 82(c), s 82(d), s 83
AntiDiscrimination Act 1977 (NSW), s 20(1), s 20(1)(a)
Interpretation Act 1984 (WA), s 18, s 19(2), s 19(2)(e), s 19(2)(f)

Result:

Claims under s 46(a) and s 46(c) substantiated
Claims under s 47(1)(a) and s 47(1)(b) dismissed
Damages of $2,000 and $1,000 ordered

Category: B

Representation:

Counsel:

First Applicant              :     Mr J Rosales-Castaneda
Second Applicant          :     Mr J Rosales-Castaneda
Respondent:     Mr TH Ee

Solicitors:

First Applicant              :     Equal Opportunity Commission
Second Applicant          :     Equal Opportunity Commission
Respondent:     Mr TH Ee

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

Airflite at 44; Alexander v Home Office (1988) 1 WLR 968
Airflite Pty Ltd v Goyal [2003] WASCA 45
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Baker (1963) 36 SR (NSW) 301
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coe and Anor v Bobilak (19841985) EOC 92026
Coyne v Trittler (1993) EOC 92538
D v G and O Pty Ltd [1997] QADT 8
Department of Health v Arumugam [1988] VR 319
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
Hall v A & A Sheiban Pty Ltd (1989) EOC 92-250
Holmes and Ors v Donhardt and Ors (1989) EOC 92270
IW v The City of Perth (1997) 191 CLR 1
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
King v John McMahon Stock Realty Pty Ltd [2005] NSWADT 260
Lynton v Maugeri and Queensland AntiDiscrimination Commission [1995] QADT 3
Mungaloon and Ors v Stemron (1991) EOC 92345
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Sheather v Daley [2003] NSWADT 51
Thompson v Evans (1999) EOC 93019
Zangari and St John Ambulance Service [2010] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants in this case, Mrs Violet Pickett and Mr Trevor Pickett, are mother and son. In September 2008 Mrs Pickett was assisting Mr Pickett in his search for rental accommodation for his family. The applicants alleged that they were discriminated against by Ms Anna Chan, the proprietor of a rental property in Balga, on the ground of race in the areas of accommodation and the provision of services, contrary to the Equal Opportunity Act 2004 (WA).
The applicants complained that Ms Chan discriminated against them on the ground of race by refusing Mr Pickett's application for accommodation, contrary to s 47(1)(a), and in the terms or conditions on which accommodation was offered to him, contrary to s 47(1)(b). The Tribunal considered whether the Equal Opportunity Act 2004 (WA) makes discrimination on the ground of race in the preaccommodation area unlawful, and found that it does not. It therefore determined that s 47(1)(a) did not apply as there was no application for accommodation made in this case. The Tribunal also determined that Ms Chan had not made any offer to rent the property to Mr Pickett, conditional or otherwise, so s 47(1)(b) was not contravened.
The applicants also complained that Ms Chan discriminated against them on the ground of race in the area of the provision of services contrary to s 46(a) and in the manner in which those services were provided contrary to s 46(c). The Tribunal found that Ms Chan refused to provide the applicant with services, namely accurate information that the property was still available to rent, contrary to s 46(a). The Tribunal also found that Ms Chan discriminated against the applicants in the manner in which she provided Mrs Pickett with information in relation to the property, by providing inaccurate information, contrary to s 46(c). In both cases the Tribunal found that the information was refused, or inaccurately provided, because Mrs Pickett and Mr Pickett were Aboriginal.
Having found the complaints of discrimination contrary to s 46(a) and s 46(c) substantiated, the Tribunal awarded damages to the applicants under s 127(b). In determining the quantum of damages, the Tribunal took into account the damages awarded in relevant case law, evidence of the damages suffered by the applicants, and Ms Chan's character and circumstances. The Tribunal ordered Ms Chan to pay Mrs Pickett and Mr Pickett $2,000 and $1,000 respectively for the hurt and humiliation they suffered by reason of Ms Chan's breaches of the Equal Opportunity Act 2004 (WA).

Factual background and overview of the case

Mrs Pickett and Mr Pickett are mother and son. They are Aboriginal. Towards the middle of 2008 Mr Pickett secured a job with a mining company which required him to fly in and out from Perth on a regular basis. He decided to move to Perth with his family. Mrs Pickett owns a house in Balga and Mr Pickett and his family moved into this house in Balga. At the time, Mrs Pickett was living in Bunbury where she was working. Eventually, however, Mrs Pickett decided to move back to Perth. Mr Pickett was aware of his mother's plans to return to Perth and to occupy her house in Balga, so he started looking for rental accommodation for his family.
In September 2008, Mr Pickett and his partner asked Mrs Pickett if she could help them find a house to rent by looking at advertisements in the newspaper and obtaining information from landlords or agents. Mr Pickett requested that his mother look for three bedroom houses in the Balga area and surrounding suburbs with a weekly rental of between $300 and $400. Mrs Pickett assisted Mr Pickett's partner to identify suitable properties, to ring landlords and agents and to accompany Mr Pickett's partner to inspect houses about which they had inquired. She would also help Mr Pickett's partner to fill in an application form for any property for which they wanted to apply.
Ms Chan is 59 years of age and is an Australian citizen who migrated to Australia from Hong Kong in November 1987. She is the proprietor of a timber floor products business and also rents out two rental properties. One of those properties is located at 19 Kenwick Way, Balga (the property). Between 17 September 2008 and 4 October 2008 Ms Chan advertised the property in The West Australian newspaper's rental classified section. The property was advertised as 'Balga $350 3 x 1 hse. Secure, no pets, n/smkr, employed. Ref' and the phone number for enquiries was included (the advertisement).
On Sunday 21 September 2008, Mrs Pickett saw the advertisement and telephoned Ms Chan to make enquiries in relation to the property. There were several telephone conversations between Mrs Pickett and Ms Chan that day in relation to the property. Ms Chan gave Mrs Pickett the address of the property and Mrs Pickett drove past and then decided to request an inspection of the interior of the property. She was not given the opportunity to do so.
Mrs Pickett and Mr Pickett claim that Ms Chan failed to provide Mrs Pickett with accurate information in relation to the property, namely that it was in fact available for rent, and that she failed to do so because they were Aboriginal. Mr Pickett also claims that Ms Chan refused his application for accommodation or sought to impose different terms and conditions in relation to the rental of the property, because he was Aboriginal.
Ms Chan says that she did not allow Mrs Pickett to inspect the property because she had agreed to hold the property for a Mr Michael Watts and his wife. Mr and Mrs Watts inspected the property on Wednesday 17 September 2008 and requested that Ms Chan hold it for them until they made enquiries with their real estate agent about their existing tenancy.
Ms Chan says Mrs Pickett did not make an application for the property for her son and that she did not discuss the terms and conditions of a tenancy with Mrs Pickett.
On Monday 22 September 2008 Mrs Pickett discussed her conversations with Ms Chan with a work colleague, Ms Oades. Ms Oades then telephoned Ms Chan and inquired about the property.
We deal below with the evidence concerning the conversations between Ms Chan and Mr Watts, Ms Chan and Mrs Pickett, and Ms Chan and Ms Oades.
Mrs Pickett and Mr Pickett complained to the Commissioner for Equal Opportunity about Ms Chan's conduct, which they claim constituted discrimination on the ground of their race (the complaints). The Commissioner for Equal Opportunity referred the complaints to the Tribunal, pursuant to s 93 of the Equal Opportunity Act 1984 (WA) (EO Act).
Section 36(1) of the EO Act provides that a person discriminates against another person on the ground of race in various ways. One of those ways is if, on the ground of the race of the aggrieved person, the discriminator 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. 'Race' includes colour, descent, ethnic or national origin or nationality: s 4 of the EO Act.
The EO Act provides that discrimination on the ground of race is unlawful in certain contexts, including in the area of the provision of goods and services and the area of accommodation.
The complaints allege that Ms Chan discriminated against Mrs Pickett and Mr Pickett on the grounds of their race, in the area of accommodation and in the area of the provision of services, contrary to s 36(1), s 46(a) and (c) and s 47(1)(a) and (b) of the EO Act. Mrs Pickett and Mr Pickett allege that as a result of Ms Chan's breaches of the EO Act, they suffered pain, humiliation and embarrassment for which they seek monetary compensation.
Mrs Pickett and Mr Pickett bear the onus of proof and must prove their case on the balance of probabilities. Allegations of racial discrimination are serious matters and have serious consequences under the EO Act. It is well accepted that the approach discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 362 (Dixon J) (Briginshaw) applies. Consequently, although the civil standard of proof on the balance of probabilities applies, we must feel an 'actual persuasion' that the facts said to demonstrate the alleged discrimination actually occurred and that we are reasonably satisfied that the allegations of discrimination have been proved, before we may make such a finding.

Materials before the Tribunal

We have before us a copy of the complaints referred to us by the Commissioner for Equal Opportunity. In addition, the parties each filed statements of issues, facts and contentions and a joint statement of agreed facts and issues.
Mrs Pickett and Mr Pickett each filed a witness statement and gave oral evidence. In addition, they filed a witness statement prepared by Ms Anne Oades, and Ms Oades also gave oral evidence. Mrs Pickett and Mr Pickett also filed a bundle of documents relating to their complaints.
Ms Chan filed a witness statement and gave oral evidence. Ms Chan also filed a document described as a witness statement of Michael Watts which contained a statutory declaration made by him. Mr Watts did not attend to give evidence. Counsel for Ms Chan did not make an application for an adjournment in order to enable Mr Watts to attend and Mr Watts' statement was not formally tendered into evidence. However a copy of the statutory declaration made by Mr Watts was attached to Ms Chan's witness statement. Ms Chan also filed a bundle of documents related to the complaints.

The issues

These reasons for decision address the following matters:
1.An overview of the complaints;
2.The evidence and findings of fact;
3.Alleged discrimination in the area of accommodation;
4.Alleged discrimination in the area of the provision of services; and
5.Compensation.

Overview of the complaints

Mrs Pickett and Mr Pickett allege that Ms Chan discriminated against them on the ground of their race in the area of the provision of services, contrary to s 46 of the EO Act. That section makes it unlawful for a person who provides services to discriminate against another person on the ground of the other person's race by refusing to provide the other person with those services (s 46(a)), or in the manner in which the service provider provides the other person with those services (s 46(c)).
Mrs Pickett and Mr Pickett allege that Ms Chan was providing services to persons interested in the rental of her property and that those services constituted the provision of information in relation to the property. Mrs Pickett and Mr Pickett allege that Ms Chan refused to provide Mrs Pickett, who was acting on behalf of Mr Pickett in making enquiries, with accurate information in relation to the property, namely whether the property was in fact available for rent at the time Mrs Pickett contacted Ms Chan, and that that refusal constituted discrimination on the ground of their race, contrary to s 36 and s 46(a) of the EO Act.
Mrs Pickett and Mr Pickett also allege that Ms Chan discriminated against them on the ground of their race in the manner in which Ms Chan provided Mrs Pickett with services, in that she provided inaccurate information to Mrs Pickett, namely that the property was no longer available for rent, contrary to s 36 and s 46(c) of the EO Act.
Ms Chan denies any discrimination against Mrs Pickett and Mr Pickett in the provision of services and says that the information she provided to Mrs Pickett was accurate, namely that by the time Mrs Pickett telephoned her, a couple had already applied for the property and would probably take it.
Mr Pickett also alleges that Ms Chan discriminated against him on the ground of his race in the area of accommodation, contrary to s 47(1) of the EO Act. That section makes it unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's race, by refusing the other person's application for accommodation (s 47(1)(a)) or in the terms or conditions on which accommodation is offered to the other person (s 47(1)(b)). 'Accommodation' is defined in s 4 of the EO Act to include residential and business accommodation.
Mr Pickett alleges that Ms Chan discriminated against him on the ground of his race by refusing his application for accommodation, contrary to s 36 and s 47(1)(a) of the EO Act. Mr Pickett alleges that Ms Chan's refusal to provide accurate information in relation to whether the property was available, or her provision of inaccurate information (that the property was not available) constituted a refusal of his application for accommodation.
In addition, Mrs Pickett and Mr Pickett allege that in the course of her conversation with Mrs Pickett, Ms Chan stated that the rent for the property would be increased and asked if Mr Pickett's family could afford it. Mrs Pickett said that they could. Mr Pickett alleges that by advising Mrs Pickett that the weekly rent for the property would increase, Ms Chan unlawfully discriminated against him, on the ground of his race, in the terms and conditions on which accommodation was offered to him, contrary to s 36 and s 47(1)(b) of the EO Act.

The evidence and findings of fact

We turn now to consider the evidence of the conversations which took place between Ms Chan and Mr Watts, Ms Chan and Mrs Pickett, and Ms Chan and Ms Oades.

(i) Ms Chan's discussions with Mr and Mrs Watts

The property was advertised on Wednesday 17 September 2008 in The West Australian newspaper. Ms Chan said that on that day she was contacted by a number of people including Mr Michael Watts to enquire about the property and to arrange for an inspection.
Ms Chan said that that evening she showed the property to Mr Watts and his wife (who Ms Chan stated was Ethiopian) and they confirmed they were interested in renting it. Ms Chan stated that Mr Watts requested that she hold the property for them pending further enquiries with the real estate agent responsible for their existing property.
Ms Chan said that she didn't ask Mr Watts to sign an application form for the property. Ms Chan told us that her agreement with Mr Watts was to hold the property till his reference checks were completed, he signed an agreement and paid the bond. Ms Chan also said that she considered the property was taken or held for Mr Watts and his wife and she informed all persons who called about the property of that situation.
Nevertheless, Ms Chan said that she placed another advertisement for the property in the newspaper the following weekend because she wanted to keep the market open.
Ms Chan stated that on Thursday 25 September 2008 Mr Watts told her that he and his wife would not be able to take up the tenancy of the property because they were not able to withdraw early from their existing tenancy agreement without penalty.
Ms Chan told us that after she agreed to reserve the property for Mr Watts, a number of people rang to express interest in the property. She said she told them that she couldn't show them through the property because it was reserved for another prospective tenant but that the property was still available until she had signed a lease with that person. Ms Chan said that she would give other potential tenants the address of the property but she refused to show them the inside of the property until she heard from Mr Watts as to whether he would take the property.
However, Ms Chan told us that if the people calling her were not suitable tenants, for example, if they were smokers or if they had pets, then she did not give them the address of the property so they could view it. She denied that she had asked these other callers questions to determine their suitability as tenants because she did not know if Mr Watts was in fact going to take the property. Ms Chan said that she wanted to obtain information about other potential tenants because if Mr Watts decided not to take the property or his reference checks were unsatisfactory she would lose potential tenants.
Annexed to Ms Chan's witness statement was a statutory declaration completed by Mr Michael Watts dated 19 August 2009. The content of Mr Watts' declaration is consistent with Ms Chan's evidence about her agreement to hold the property for him and his wife. His declaration also confirms his inability to take the property and that he notified Ms Chan of this on Thursday 25 September 2008.
It is apparent from this evidence that on Sunday 21 September 2008 the property had not been leased to Mr and Mrs Watts. The nature of the agreement between Ms Chan and Mr and Mrs Watts appears best described as an agreement that Ms Chan would give Mr and Mrs Watts priority above other applicants for the lease of the property in the event that they confirmed that they wished to enter into a lease and that their reference checks were satisfactory. Until that occurred, however, it is apparent from Ms Chan's evidence that she remained willing to discuss the property with other potential tenants as she considered it was still available to rent.

(ii) The conversations between Ms Chan and Mrs Pickett

In the morning of 21 September 2008 Mrs Pickett rang the telephone number in the advertisement and told the woman who answered the phone (Ms Chan) that she was ringing on behalf of her son in relation to the house advertised in the paper. There does not appear to be a great deal of dispute in relation to most of what was said in this conversation. Mrs Pickett's evidence was that Ms Chan asked her a number of questions, such as Mr Pickett's age, how big his family was, and whether he was employed, and Mrs Pickett provided this information. Ms Chan's evidence was that she asked Mrs Pickett the same questions she asked of all prospective tenants, namely whether the prospective tenants were employed, whether they were smokers, what their age and gender was, whether they had pets and whether they had rental references.
When Ms Chan finished asking these questions, she asked Mrs Pickett to call her back because at the time of the call she was using a hands free mobile phone while she was driving.
Mrs Pickett's evidence was that in the same conversation Ms Chan told her the address for the property and suggested she drive past it, and told her that if she wanted to look through the property she should call Ms Chan back. Mrs Pickett said that at the end of her first conversation with Ms Chan she felt confident that she would be able to inspect the interior of the property.
Ms Chan's evidence was that she told Mrs Pickett the address of the property in their second conversation. She said that when Mrs Pickett called her back (as she had asked her to) Ms Chan was busy with a customer so she told Mrs Pickett the address of the property and asked her to drive past it and to call her back.
In crossexamination, counsel for Mrs Pickett and Mr Pickett sought to pursue this issue, and relied on a discrepancy between a response Ms Chan gave to the Commissioner for Equal Opportunity, when the complaints were first made, and the witness statement Ms Chan filed in the Tribunal. The discrepancy pertained to whether Ms Chan gave Mrs Pickett the address of the property during their first or second telephone conversation. We do not place any weight on this discrepancy because it is relatively minor in nature and did not suggest that the substance of Ms Chan's response to the complaints had changed. We find that Ms Chan gave Mrs Pickett the address of the property and invited her to inspect it from the outside.
Mrs Pickett and Mr Pickett's partner drove past the property later in the morning of 21 September 2008 and decided they would request an inspection of the inside of the house. Mrs Pickett's evidence was that early in the afternoon of the same day she rang the telephone number in the advertisement and advised that she would like to see the inside of the house. Mrs Pickett said that her intention was that once she inspected the property, and if it was suitable, her son and his family would apply for it.
The witnesses differed a little in their evidence as to whether certain things were said in their second conversation or during a third conversation. Ms Chan said that on the second occasion when Mrs Pickett rang, she was busy with a customer and so invited Mrs Pickett to call her again later on her landline. Mrs Pickett's evidence was that the conversation proceeded, but at the conclusion of the conversation the woman 'then asked me to call her back on her work number within 10 minutes'. Again, we do not consider this discrepancy in the evidence to be particularly significant because there was no dispute as to the substance of much of the conversation that took place, whether it occurred in this second conversation or in the third conversation Mrs Pickett and Ms Chan had that day.
In what was either their second or third telephone conversation, Mrs Pickett said that after she asked to inspect the property the woman (Ms Chan) asked for her name and then asked what nationality she was. Mrs Pickett stated that she 'giggled a little bit and told her I'm Aboriginal'. Mrs Pickett told us that she giggled when asked her nationality because she thought this was a 'pretty bold' question to ask and she was shocked to be asked. Mrs Pickett said that 'once you disclose you are Aboriginal things are different'. Mrs Pickett felt that after she told Ms Chan that she was Aboriginal the 'barriers came up'.
Ms Chan admitted that she asked Mrs Pickett about her nationality. She said when she asked for Mrs Pickett's name so she could call her back, she didn't understand Mrs Pickett's name. In her witness statement, Ms Chan stated that she:
could not get the full name of Violet said over the phone due to the Violet accent. I then asked Violet for the spelling of her name and her nationality. I asked these questions to all others when I could not understand the callers or even customers and how to spell their names. I, being from Hong Kong am not fully conversant in English as my mother tongue is Cantonese [sic].
Mrs Pickett then said that the woman told her she 'didn't sound Aboriginal'. Ms Chan confirmed that she had said this. Ms Chan told us that what she meant was that Mrs Pickett did not have an accent 'like other foreigners we all have our own accent'. She said that she meant that Mrs Pickett's accent was very clear 'just like Englishspeaking people'.
As we have noted, at the conclusion of this conversation, Ms Chan asked Mrs Pickett to call her back. In her witness statement, Mrs Pickett stated:
She then asked me to call her back on her work number within 10 minutes so that she could arrange for someone to show us through. I rang her about 10 minutes later, and she told me that she couldn't get anyone to show us the property, and that she was at work and couldn't leave. She asked for my phone number and said she would call me back if she could arrange to show us through the house.
On Ms Chan's version of events, she did not suggest to Mrs Pickett that she would be able to inspect the property.
A little later on the same day, Ms Chan telephoned Mrs Pickett. In her witness statement, Mrs Pickett stated:
She called me a little later saying she couldn't show us through and added that an Indian couple had applied for that house and would probably take it. She also added that the rent would probably be increased, and asked if Trevor could afford it, and I said that he could.
I then told her 'don't waste my time or yours if there is no chance of getting the property'. She did not try to dissuade me otherwise.
She then added that she had previously had Aboriginal tenants who wrecked the place and cost her thousands of dollars to repair.
I told her that we were not all the same, and told her that my son worked in the mines and my husband is an artist. She agreed with my statement, and told me that it was very hard to get a rental property, and told me that Indian families were in similar situations.
Mrs Pickett's evidence was that she had told Ms Chan not to waste her time if there was no chance of getting the property because it was 'a lot of emotional drain' to go through the process and it was easier to not try to get through the conversation. She did not ultimately inspect the property.
Ms Chan's evidence of what was said was somewhat different. Ms Chan said that she told Mrs Pickett that another couple had applied for the property and would probably take it. She denied saying that the couple were Indian. In her witness statement Ms Chan stated:
I told Violet that I could not show Violet the premises because a couple was interested to rent the premises which is being held for them. I told Violet that it would be wasting both of our time to view the premises as the premises had been taken or held for the interested couple. I said to Violet that I would ring her if the interested couple did not take up the tenancy.
I then had a friendly or cordial chat with Violet for about 15 to 20 minutes. Violet told me that her husband was an artist, her son works in the mines and she has a good job and they all work hard. I did not make any comment when Violet said that she and her family are different. Violet also told me that as soon as she told people they were Aboriginal she would be rejected immediately. I replied to Violet and sympathized with her and mentioned that some foreign people are also being turned down in renting accommodation. I said further that some Indians had the same problem when they want to rent a place as I heard from the accommodation officer of the Uniting Church.
I told Violet that I had not had Aboriginal tenants before as no Aboriginal person had applied to rent the premises. I had young Australian tenants who damaged the premises and I had to spend a substantial amount of money and took three months to repair and reinstate the house.
Ms Chan also gave evidence that she told Mrs Pickett that she would ring her back if the other prospective tenants didn't take the property.
Ms Chan denied ever saying to Mrs Pickett that because her son was Aboriginal the rent might be increased. She stated:
I did not discuss or have any negotiations at all about the amount of rent or any increase of rental with Violet as Violet was merely seeking information on behalf of her son about the premises and further Violet had not inspected the premises or applied for accommodation at the premises.
…
I did not say to Violet that the weekly rental of the property in question was going to be increased and neither did I ask if Violet's son would be able to afford the increase.
…
The contact between me and Violet was merely for the obtaining and giving of the information about the premises. As such, no terms and conditions regarding rental or otherwise were discussed, as Violet's son had not applied to rent the premises and had not inspected the premises. The accommodation was not offered to Violet or her son for the only reason that at the material date I was holding the premises for an interested party which fact was communicated to Violet.
Ms Chan stated that during 21 September 2008 she received many other telephone calls from people enquiring in relation to the property and each time she informed them that she was unable to let them view the inside of the property as it had been taken or held for a couple who was interested in renting it.

(iii) Conclusion in relation to evidence of Mrs Pickett and Ms Chan

We found Mrs Pickett to be a credible and reliable witness. She gave her evidence in a forthright manner. She did not seek to exaggerate any aspect of her evidence.
Ms Chan also gave her evidence in a forthright manner, but there were three aspects of her evidence which we consider lacked credibility.
First, one of the key aspects of Ms Chan's evidence concerned why she asked what Mrs Pickett's nationality was. Ms Chan's explanation was that her English is conversationally quite good but she has difficulty in her comprehension of English and sometimes doesn't understand things that are said. She said she often asks people's nationalities when she is unfamiliar with their names. We do not find that a credible explanation in the circumstances. During the course of her evidence, Ms Chan did not convey to us the impression that she had difficulty with her comprehension of English to any or any significant extent. In any event, even if Ms Chan does have some difficulty with understanding English, that does not explain how enquiring about Mrs Pickett's nationality would have assisted her to understand Mrs Pickett's name.
Secondly, Ms Chan denied that she had any issue with Mrs Pickett's race, and said that if she had had an issue of that kind she wouldn't have called her back. Ms Chan's evidence was that she told Mrs Pickett that she would ring her back if the other prospective tenants didn't take the property. In her witness statement Ms Chan also stated that after Mr Watts notified her that he and his wife would not be able to take up the tenancy of the property, Ms Chan wanted to telephone Mrs Pickett to inform her of that but found that she had lost Mrs Pickett's telephone number. We did not find this aspect of Ms Chan's evidence persuasive. Under crossexamination, Ms Chan accepted that she had not checked her mobile phone call log in order to obtain Mrs Pickett's telephone number to call her back after Mr Watts advised that he would not take the property. That would have been an easy means to enable her to contact Mrs Pickett had she genuinely wished to do so.
Thirdly, and most significantly, Ms Chan was crossexamined as to why she had not mentioned at the outset in her discussions with Mrs Pickett that the property had been reserved for other prospective tenants. Ms Chan said that she hadn't given this information to Mrs Pickett because she had asked Mrs Pickett questions about herself and her son and didn't go through other details in relation to the property. We do not find that explanation credible. If, as Ms Chan said, she considered that since Wednesday 17 September the property was 'reserved' for Mr Watts and his wife, we would have expected that Ms Chan would have told Mrs Pickett of that situation from the outset, rather than suggesting that Mrs Pickett view the exterior of the property first. Alternatively, if Ms Chan was concerned that Mr Watts might not take the property (as she also suggested in her evidence) then we would have expected that she would have shown Mrs Pickett the interior of the property to maximise her prospects of securing the rental of the property at the earliest opportunity.
These concerns about the credibility of Ms Chan's evidence would have led us to hesitate before preferring Ms Chan's evidence to that of Mrs Pickett. In addition, however, we heard evidence from Ms Anne Oades, who had a conversation with Ms Chan the day after Mrs Pickett's conversations with Ms Chan. Ms Oades' evidence supports the conclusion that we should reject Ms Chan's evidence concerning her conversations with Mrs Pickett, where her evidence differs from that given by Mrs Pickett.

(iv) The conversation between Ms Chan and Ms Oades

Ms Oades worked with Mrs Pickett in Bunbury in September 2008. Ms Oades provided a witness statement to the Tribunal. She stated that she and Mrs Pickett worked together and in the course of their work used to discuss personal things when they had an impact on their jobs, including small family matters. Mrs Pickett had told Ms Oades that her son, Mr Pickett, was looking for a place in Perth due to his job commitments. Ms Oades' daughter was also moving out of shared accommodation and wanted to find accommodation in Perth and Ms Oades had discussed this previously with Mrs Pickett.
Ms Oades stated that she recalled a conversation with Mrs Pickett on a Monday in September 2008, when she asked Mrs Pickett how she was going in looking for a rental property for her son in Perth. Mrs Pickett then recounted her conversations with Ms Chan over the previous weekend. Mrs Pickett told her that after Ms Chan learned that she was Aboriginal, she said the house was already taken. Ms Oades stated that she was 'pretty cross' about this and that she then suggested to Mrs Pickett that she would call Ms Chan and find out if the house was available.
Ms Oades stated that she called a mobile telephone number that Mrs Pickett gave her. Ms Oades said that she told the woman who answered (Ms Chan) that she was ringing in relation to the property and that it was for her daughter who was in her thirties and was a teacher.
Ms Oades stated that the woman told her her name was Anna and that she had a set of questions she was asking 'as to who [was] the best tenant'. Ms Chan then asked her a series of questions including whether she was employed and how old she was. Ms Oades stated that Ms Chan told her 'I've been telling people the property is taken if I don't like the tenants'.
According to Ms Oades, Ms Chan 'went on to explain how she had an Aboriginal lady call the day before asking about the property'. Ms Chan then told her that 'these people are not reliable and do nasty things to each other'. Ms Oades understood this to be a reference to Aboriginal people. Ms Oades told Ms Chan that she found her comments offensive, and Ms Chan replied that 'she had a difficult court case with tenants'. Ms Oades also gave evidence that Ms Chan told her that she was not taking Indians as tenants either. Ms Oades stated that Ms Chan told her that she was readvertising the property.
Ms Chan said that she told Ms Oades that the property was taken or being held for an interested couple. She denied telling Ms Oades that an Aboriginal lady had called her or that she had ever said the words 'these groups are not reliable'. She denied that she had ever had experience or contact with Aboriginal people. She also denied that she told Ms Oades that she was 'not taking Indians too'.
Ms Oades gave oral evidence and was crossexamined. We found her to be a credible witness. We prefer the evidence of Ms Oades to that of Ms Chan in relation to the content of their telephone conversation for the following reasons.
First, Ms Oades' evidence was very clear. There was nothing to suggest that she may have been mistaken in her recollection of what was said by Ms Chan. In order to reject Ms Oades' evidence we would need to find that she had fabricated almost the entirety of the content of her telephone conversation with Ms Chan, who was a person she had never met and about whom she knew nothing, apart from what Mrs Pickett had told her. We are unable to identify any basis for that finding. Ms Oades had nothing to gain by fabricating details of her conversation with Ms Chan.
Counsel for Ms Chan sought to suggest that Ms Oades was trying to assist Mrs Pickett, who was her friend, and that it was Mrs Pickett who suggested that Ms Oades telephone Ms Chan. (Mrs Pickett had previously been crossexamined about the same issue. Her evidence was that she did not remember whose idea it was that Ms Oades should ring Ms Chan.) Ms Oades denied thast. Ms Oades told us that she had worked with Mrs Pickett on a number of projects but that they were 'more colleagues than friends' and they had not visited each other's homes. Ms Oades said that she decided to make the call because Mrs Pickett was distressed and she was appalled and outraged by what Mrs Pickett said she had been told by Ms Chan. Ms Oades told us that she was 'intrigued and curious' that discrimination could happen and that that was why she made the call. We accept Ms Oades' explanation for why she decided to call Ms Chan.
Secondly, Ms Oades' evidence was supported by contemporaneous notes she made during her conversation with Ms Chan. The notes were made on a notepad which was handed to her by Mrs Pickett immediately prior to her phone call to Ms Chan, and Mrs Pickett saw Ms Oades take those notes. We were provided with the page out of that notebook on which the notes were written. Ms Oades' notes included the following:
Anna
•Yesterday
•Aboriginal
•I told them it was taken.
…
•Those groups are not reliable.
•Nasty things to others.
•Had a court case.
These notes are entirely consistent with Ms Oades' evidence as to what was said in the course of her conversation with Ms Chan, and quite contrary to Ms Chan's evidence.
Ms Oades' evidence supports the conclusion that once Ms Chan discovered that Mrs Pickett and her son were Aboriginal, she told Mrs Pickett that the property was taken and was not available for inspection.

(v) Findings as to the information conveyed by Ms Chan to Mrs Pickett

We find that Ms Chan told Mrs Pickett that another couple had applied for the property and would probably take it. By that comment she conveyed to Mrs Pickett that the property was no longer available for lease, and that was how Mrs Pickett understood the comment.

Given that Ms Chan did not try to dissuade Mrs Pickett when Mrs Pickett told her not to 'waste my time or yours if there is no chance of getting the property', and having regard to Ms Chan's conversation with Ms Oades, we find that Ms Chan deliberately sought to convey the understanding that the property had been taken and was no longer available for rent by Mr Pickett.
We find that Ms Chan only conveyed this information to Mrs Pickett after she found out that Mrs Pickett and Mr Pickett were Aboriginal. At that point Ms Chan had indicated her willingness to permit Mrs Pickett to inspect the property.

Alleged discrimination in the area of accommodation

It is convenient to deal first with Mr Pickett's complaint that he was discriminated against in the area of accommodation on the ground of his race.
Mr Pickett says that Ms Chan discriminated against him on the ground of race by refusing his application for accommodation, contrary to s 47(1)(a) of the EO Act and in the terms or conditions on which accommodation was offered to him contrary to s 47(1)(b) of the EO Act.
Ms Chan's case in relation to this complaint by Mr Pickett is that there was no application made by Mr Pickett for accommodation but merely a request by Mrs Pickett to view the exterior, and then the interior, of the property. Accordingly, Ms Chan says that s 47(1)(a) of the EO Act does not apply.
In relation to the allegation that Mr Pickett was discriminated against on the ground of his race in the terms or conditions on which accommodation was offered to him, Ms Chan says that there was no discussion or negotiation in relation to the rent or any likely increase in the rent for the property and that the allegations to this effect made by Mrs Pickett are completely untrue. Accordingly Ms Chan's case is that s 47(1)(b) of the EO Act does not apply because no terms or conditions were discussed.

The complaint under s 47(1)(a) of the EO Act

Paragraph 47(1)(a) of the EO Act provides:
(1)It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's race —
(a)by refusing the other person's application for accommodation;
In relation to Mr Pickett's complaint of discrimination contrary to s 47(1)(a) of the EO Act the issues which arise are:
•Was Mrs Pickett acting on behalf Mr Pickett when she contacted Ms Chan in relation to the property?
•Did Mrs Pickett's enquiries on behalf of Mr Pickett amount to an application for accommodation within the meaning of s 47(1)(a) of the EO Act?
•If so, did Ms Chan refuse that application?
•If so, did that refusal constitute less favourable treatment than Ms Chan did afford or would have afforded to a person of a different race in the same circumstances or in circumstances that were not materially different?
•Was that less favourable treatment afforded on the ground of Mr Pickett's race?

Was Mrs Pickett acting on behalf of Mr Pickett in making enquiries of Ms Chan in relation to the property?

It was conceded by counsel for Ms Chan that Mrs Pickett was acting for her son when she made enquiries of Ms Chan in relation to the property. Accordingly, Ms Chan does not dispute that Mrs Pickett was acting as an agent on her son's behalf in making those enquiries.

Did Mrs Pickett's enquiries on behalf of Mr Pickett amount to an application for accommodation within the meaning of s 47(1)(a) of the EO Act?

In order to determine whether Mrs Pickett's enquiries of Ms Chan amounted to an application for accommodation, it is necessary to interpret the meaning of the words 'application for accommodation' in s 47(1)(a).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47] Hayne, Heydon, Crennan and Kiefel JJ observed:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [Citations omitted].
Accordingly, to determine the meaning of the words used in s 47(1)(a) we start by considering the ordinary and natural meaning of those words. According to the Shorter Oxford English Dictionary, the word 'application' has a variety of meanings, one of which is '[the making of] a request, especially of a formal nature'. The ordinary and natural meaning of the word 'application' suggests that in order for there to be a refusal of an application for accommodation a request for that accommodation must first be made.
Nothing in the EO Act suggests that an application must be made in a particular form and an application could clearly be made either in writing or orally. In this case, there was no evidence that any written application was made by Mrs Pickett on behalf of Mr Pickett for a lease of the property. In addition, Mrs Pickett did not suggest in her evidence that she had made an oral request to Ms Chan for a lease of the property on behalf of Mr Pickett. Instead, her evidence was that she had simply requested the opportunity to inspect the interior of the property. Moreover, her evidence as to the practice she had adopted in looking for rental properties was that she and Mr Pickett's partner would look at the exterior of the property, and if interested in the property they would request an inspection of its interior. Following that inspection, if they considered the property suitable, they would submit an application for a lease of the property. There was nothing in the evidence before us which suggested that Mrs Pickett's request for an inspection of the interior of the property constituted a request on behalf of Mr Pickett and his family for a lease over the property.
Counsel for Mr Pickett submitted that the reference to an 'application for accommodation' in s 47(1)(a) should be construed as encompassing all of a prospective tenant's conduct following his or her first enquiry to a landlord about the availability of a rental property. The immediate difficulty that arises in respect of that submission is that prospective tenants may inspect the exterior and interior of a rental property without then reaching the view that they in fact wish to rent the property. Counsel's submission might more readily be accepted in a case where a request for the rental of a property was ultimately made. However, in cases such as this one, where no such request is made, it is difficult to see how general enquiries made of a landlord could be characterised as an 'application' for accommodation.
Counsel for Mrs and Mr Pickett also submitted that if the EO Act was not construed as he submitted, prospective tenants could be discriminated against on the grounds of race by being dissuaded from making an application for a rental property rather than by being refused that application once it is made. That submission should perhaps be understood as a submission that s 47(1)(a) should be given a broad construction, having regard to the purpose of the EO Act. We are unable to accept counsel's submission as to the construction of s 47(1)(a) having regard to four considerations:
(i)Absence of ambiguity in s 47(1)(a);
(ii)The purpose of the EO Act;
(iii)Contextual considerations; and
(iv)Authority.

(i) Absence of ambiguity in s 47(1)(a)

It is well accepted at common law and required by s 18 of the Interpretation Act 1984 (WA) that in the interpretation of a statutory provision a construction that would promote the purpose or object underlying the statute, whether or not that purpose is expressly stated in the statute, is to be preferred to a construction that would not promote that purpose. For s 18 of the Interpretation Act 1984 (WA) to apply, however, two competing interpretations of a statutory provision must be open. In that event, the command in s 18 is to choose the construction that would promote the purpose or object of the EO Act rather than a construction that would not promote that purpose or object: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 (Dawson, Toohey and Gaudron JJ). In this case, for the reasons we have set out, we do not consider that there is any ambiguity in the meaning of the term 'application for accommodation' in s 47(1)(a). Consequently, we do not consider this to be a case where we need to choose between two competing constructions which are open.

(ii) The purpose of the EO Act

The EO Act is beneficial legislation and therefore should be given a liberal construction, rather than one which is literal or technical: IW v The City of Perth (1997) 191 CLR 1 (IW) at 12 (Brennan CJ and McHugh J). However, even bearing that approach in mind, we do not consider that the purpose of the EO Act necessarily supports the construction of s 47(1)(a) for which counsel for Mr Pickett contends. Counsel did not expressly address the purpose of the EO Act. The long title of the EO Act is:
An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination… [on various grounds, including race].
The objects of the EO Act include 'to eliminate, so far as is possible, discrimination against persons' on various grounds including race and in various areas including accommodation and 'to promote recognition and acceptance within the community of the equality of persons of all races': s 3(a) and (d) of the EO Act. However, not all instances of discrimination on the grounds of race are prohibited by the EO Act. Under Pt 3 of the EO Act, for example, discrimination on the ground of race is prohibited in various areas, including accommodation. Even within those specified areas, there are a number of exceptions provided to the general proposition that discrimination on the grounds of race is unlawful in those areas. For instance, in the area of accommodation, exceptions are set out in s 47(3) of the EO Act. It is, therefore, not possible to discern an intention by the Parliament to prohibit discrimination in all aspects of accommodation.
Sometimes the identification of the purpose of a statute can be discerned through extrinsic material such as an explanatory memorandum in relation to a Bill or a speech made to a House of Parliament made by a Minister on the occasion of the second reading of a Bill: s 19(2)(e) and (f) of the Interpretation Act 1984 (WA). However, counsel advised us that nothing in the record of the debates in relation to the Equal Opportunity Bill 1984 (WA) shed any light on the interpretation of s 47 and we have not been able to locate an explanatory memorandum for the Bill.
In IW, Brennan CJ and McHugh J observed (at 14 15) that:
[G]iven the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination…
…
Those legislatures have also deliberately confined the application of antidiscriminatory legislation to particular fields and particular activities within those fields.
…
Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.
We consider those observations to be equally apt in the present context.
We are unable to discern any indication that the purpose of the EO Act was to prohibit discrimination on the grounds of race in all contexts in relation to accommodation, and in particular prior to any application for accommodation being made.

(iii) Contextual considerations

Contextual considerations also mitigate against the construction of s 47(1)(a) advanced by counsel for Mr Pickett.
In other provisions of the EO Act where racial discrimination is prohibited, such as in the area of work, Parliament has expressly prohibited discrimination in the determination of who should be offered employment. It has also expressly prohibited discrimination in the conduct of an employer or prospective employer prior to that decision being made, namely in the arrangements made for the purpose of determining who should be offered employment.
Section 37(1) makes it unlawful for an employer to discriminate against a person on the ground of the race of that person in various circumstances. These include determining who should be offered employment and the terms or conditions on which employment is offered (s 37(1)(b)(c)), but also expressly makes unlawful discrimination on the grounds of race in the arrangements made for the purpose of determining who should be offered employment (s 37(1)(a)).
Similar provisions can be seen in s 38(1) of the EO Act in relation to the engagement of a commission agent.
In some areas, therefore, Parliament has expressly made discrimination on the ground of race unlawful in the 'preapplication' or 'preoffer' stage. In those circumstances it is more difficult to conclude that Parliament must have intended s 47(1)(a) to encompass discrimination prior to an application being made for accommodation, when the EO Act does not expressly say so.
Had the Parliament wished to address the area of 'preaccommodation' in the EO Act, it could have done so expressly. Equal opportunity legislation in some other jurisdictions expressly makes racial discrimination by a landlord or prospective landlord unlawful in the period prior to an application for accommodation being made, or prohibits discrimination on the grounds of race which may manifest itself when a landlord or prospective landlord subjects a prospective tenant to any detriment in relation to accommodation. By way of example, we note that s 82 of the AntiDiscrimination Act 1991 (Qld) is headed 'Discrimination in preaccommodation area'. Section 82 provides that:
A person must not discriminate against another person—
(a)by failing to accept an application for accommodation; or
(b)by failing to renew or extend the supply of accommodation; or
(c)in the way in which an application is processed; or
(d)in the terms on which accommodation is offered, renewed or extended.
In addition, s 83 of the Queensland legislation provides that:
A person must not discriminate against another person—
…
(d)by treating the other person unfavourably in any way in connection with the accommodation.

(iv) Authority

No Western Australian authorities deal with the question of construction of s 47(1)(a) raised by this case. Counsel for Mr Pickett did not refer us to any authority from other jurisdictions which provided support for the construction of s 47(1)(a) which he advanced. Those cases to which he referred us in the context of racial discrimination in the area of accommodation, were referred to in relation to the question of damages. Each of those cases King v John McMahon Stock Realty Pty Ltd [2005] NSWADT 260 (17 November 2005) (King), Lynton v Maugeri and Queensland AntiDiscrimination Commission [1995] QADT 3 (4 May 1995) (Lynton) and Sheather v Daley[2003] NSWADT 51 (12 March 2003) (Sheather) is distinguishable on its facts or dealt with a legislative provision in different terms to s 47(1)(a), and therefore does not assist to determine the proper construction of s 47(1)(a) of the EO Act.
We have, however, identified one authority which provides some support for the construction of s 47(1)(a) advanced on Mr Pickett's behalf. In D v G and O Pty Ltd [1997] QADT 8 (12 February 1997) (D v G and O) the AntiDiscrimination Tribunal of Queensland dealt with a claim of race discrimination in the area of preaccommodation in circumstances very similar to those in the present case. In that case, the complainant saw an advertisement in a newspaper for a unit and rang up on a Friday evening, spoke to the landlord, and made an appointment to view the unit on the following Monday afternoon. On that day, the complainant arrived early for the appointment. The landlord arrived some time later. The complainant's case was that the landlord got out of his car and told her that after she called about the unit, another person had called and that he had rented the flat to this other person. The complainant formed the impression that the landlord had seen her, realised she was Aboriginal and made up the story about the flat being rented.
After this occurred, a relative of the complainant telephoned the same telephone number in the advertisement and enquired as to the availability of the unit. He was advised that the flat was still available. That telephone conversation was found to have taken place less than two hours after the complainant was told that the unit was not available.
The Queensland Tribunal found that the landlord treated the complainant less favourably on account of her race and that this was an instance of discrimination by failing to accept an application for accommodation and/or in the way in which the application was processed, in breach of s 82(a) and s 82(c) of the AntiDiscrimination Act 1991 (Qld) and probably also s 83(d) of that Act. The Tribunal did not expressly deal with the question of the meaning of the words 'failing to accept an application for accommodation' in s 82(a) of the AntiDiscrimination Act 1991 (Qld) and neither the Tribunal's recitation of the evidence, nor its findings, indicate whether the complainant in fact made an application for accommodation. Further, the Tribunal's findings that the conduct of the landlord involved breaches of s 82(a), s 82(c), and probably also s 83(d), are somewhat ambiguous. The finding that there was a breach of s 82(a) (for failing to accept an application for accommodation) appears to be inconsistent with the finding that there was discrimination in the way in which the application was processed, contrary to s 82(c). For these reasons we are not persuaded by D v G and O to take a different view of the construction of s 47(1)(a) of the EO Act.

Conclusion in relation to the complaint under s 47(1)(a) of the EO Act

We are of the view that the application of s 47(1)(a) requires that an application for accommodation be made by a prospective tenant before that application can be refused. We find that there was no contravention of s 47(1)(a) in this case because no such application was made by Mrs Pickett on behalf of Mr Pickett. It is therefore unnecessary to go further and consider the remaining issues in relation to the claim of discrimination contrary to s 47(1)(a).
Despite this conclusion, we do not doubt the force of the submission of counsel for Mr Pickett that a person may just as effectively be discriminated against by being dissuaded from making an application for accommodation, or being prevented from inspecting a property so as to determine whether to make an application, as by the refusal of an application for accommodation. The potential for discrimination on racial grounds against prospective tenants, especially Aboriginal tenants, has been recognised in literature in relation to discrimination law in Australia: see for example 'Accommodating Everyone An Inquiry into whether persons from culturally and linguistically diverse backgrounds and Aboriginal people are being discriminated against on the basis of their race either directly or indirectly in a private housing rental market', 2009, WA Equal Opportunity Commission, at 65; see also C. Ronalds, Discrimination Law and Practice, (3^rd ed, 2008) at 123. Whether the EO Act should prohibit discrimination prior to an application for accommodation being made is a matter for policy makers and ultimately for Parliament.

The complaint under s 47(1)(b) of the EO Act

In relation to Mr Pickett's complaint of race discrimination in the area of accommodation under s 47(1)(b) of the EO Act, the following issues arise:
•Was Mrs Pickett acting on behalf Mr Pickett when she contacted Ms Chan in relation to the property?
•Did Ms Chan offer accommodation to Mr Pickett?
•Did Ms Chan offer that accommodation on terms and conditions less favourable than in the same circumstances or in circumstances not materially different she would have offered to a person of a different race?
•Did Ms Chan afford that less favourable treatment to Mr Pickett on the ground of his race?
In our view, Mr Pickett's case fails at the point of the second issue.
Counsel for Mr Pickett submitted that in this case it was open to us to find that Ms Chan had made a conditional offer of accommodation to Mr Pickett and that the discrimination arose in the terms and conditions on which that offer was made, in that Ms Chan told Mrs Pickett that the rent was likely to increase.
The evidence does not support a finding of the kind for which Mr Pickett contends. There was nothing in the evidence of Mrs Pickett or Ms Chan to support the conclusion that Ms Chan made any offer to rent the property to Mr Pickett.
Accordingly, we find Mr Pickett's complaint of discrimination by Ms Chan contrary to s 47(1)(b) of the EO Act is not made out. It is therefore unnecessary to go further and consider the remaining issues in relation to the claim of discrimination contrary to s 47(1)(b).

Alleged discrimination in the area of the provision of services

Mrs Pickett and Mr Pickett allege that Ms Chan discriminated against them on the grounds of their race in that she refused to provide Mrs Pickett with certain information in relation to the property. The claim made by Mrs Pickett and Mr Pickett is that Ms Chan's conduct constituted discrimination against them on the ground of their race in breach of s 46(a) or s 46(c), together with s 36(1), of the EO Act.
Section 46(a) of the EO Act makes it unlawful for a person who provides services, whether for payment or not, to discriminate against another person on the ground of the other person's race by refusing to provide the other person with those services. Section 46(c) of the EO Act makes it unlawful for a person who provides services, whether for payment or not, to discriminate against another person on the ground of the other person's race in the manner in which services are provided to that other person.
The issues that arise in relation to these claims of discrimination are:
•Was Mrs Pickett acting on behalf of Mr Pickett in making enquiries in relation to the property?
•Was Ms Chan engaged in the provision of services for the purposes of s 46 of the EO Act?
•If so, what were those services?
•Did Ms Chan refuse to provide Mrs Pickett (and therefore Mr Pickett) with those services?
•Did that refusal constitute discrimination on the ground of race?
•Did Ms Chan discriminate against Mrs Pickett (and therefore Mr Pickett) in the manner in which she provided Mrs Pickett with those services?

Was Mrs Pickett acting on behalf of Mr Pickett in making enquiries in relation to the property?

As we have already noted, it is conceded by Ms Chan that Mrs Pickett was acting on behalf of Mr Pickett in making enquiries in relation to the property and there is no dispute that she was acting as his agent in making those enquiries.

Was Ms Chan engaged in the provision of services for the purposes of s 46 of the EO Act?

The term 'services' is defined in s 4 of the EO Act in the following way:
Services includes
(a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance;
(b)services relating to entertainment, recreation or refreshment;
(c)services relating to transport or travel;
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government …, a government or public authority or a local government body;
Mrs Pickett and Mr Pickett submit that a 'service' includes the provision of information which is of value. They submit that Ms Chan was engaged in the provision of a service because she provided information in relation to the property. Counsel for Mrs Pickett and Mr Pickett suggested that a number of pieces of information were requested by Mrs Pickett in the present case, namely the location of the property, whether the property was available, any special terms or conditions to secure the tenancy of the property and whether the property could be inspected. However, as the argument proceeded, it was apparent that Mrs Pickett and Mr Pickett contended the service in this case was the provision of information as to whether the property was available for rent and whether the interior of the property could be inspected. In addition, Mrs Pickett and Mr Pickett submit that the particular service provided by Ms Chan was the provision of accurate information in relation to these matters.
Counsel for Ms Chan submitted that Ms Chan was not engaged in the provision of services. He pointed to the definition of 'services' in s 4 of the EO Act and contended that when a person was acting for themselves they could not be said to be providing a service. Furthermore, he submitted that having regard to the definition of services in the EO Act, it was clear that the intent of the EO Act was to focus on services in the corporate world and in government and that in the present case Ms Chan was not involved in providing any of the services described in the definition of 'services' in s 4. In particular, he submitted that Ms Chan was not in a profession or trade involving the service of renting properties.
The meaning of the word 'services' in the EO Act was the subject of consideration by the High Court in IW. That case concerned an alleged breach of s 66K(1) of the EO Act which provides that it is unlawful for a person who provides services to discriminate against another person on the ground of the other person's impairment by refusing to provide the other person with those services (s 66K(1)(a)) or in the manner in which those services are provided to the other person (s 66K(1)(c)).
A majority of the High Court dismissed the appeal and held that the proceedings brought by IW against the Council should be dismissed. However, five of the members of the Court found that the Council was involved in the provision of services. In doing so, they recognised that the term 'services' in the EO Act should be construed broadly. Dawson and Gaudron JJ noted (at 23) that the word 'services' was a word of 'complete generality' and held that it should not be given a narrow construction unless that is clearly required by definition or by context. Their Honours noted (at 23) that:
Although s 4(1) of the Act purports to define 'services', it does so by use of the word apparently defined. And it does so by indicating what is included in the definition, not what is excluded. As the matters included in the definition are all matters which fall within the ordinary notion of 'services', the definition is to be taken as signifying everything which falls within that notion. And as neither the terms of s 66K(1) nor its context provides any contrary indication, 'services' should be read in that subsection as having its ordinary and broad meaning.
Members of the Court in IW also made reference to the ordinary meaning of the word 'services'. Brennan CJ and McHugh J (at 11) and Kirby J (at 69 70) noted that the term 'services' has a wide meaning and referred to the definition in the Macquarie Dictionary as including:
…'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'.
Brennan CJ and McHugh J (at 12) observed that:
[I]f the term 'service', read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a 'service' for the purpose of the Act.
Having regard to the broad meaning of the word 'services' in s 4 of the EO Act and to the inclusive nature of that definition, we accept that the provision of information to members of the public, or to a section of members of the public, is capable of constituting a service for the purpose of the EO Act.
In addition, we note that the definition of services includes 'services of the kind provided by members of any profession or trade'. It is not uncommon for the owners of rental properties to engage real estate agents or property managers to manage the rental of those properties. Part of the work performed by those agents or managers is to field enquiries by prospective tenants in relation to a property which is available for rent, to arrange inspections of that property, and to facilitate the entry into a lease of that property by a tenant. That necessarily involves the provision of information in relation to a property for rent. We are of the view that the provision of information of that kind by real estate agents or property managers would fall within the description 'services of the kind provided by members of any profession or trade'.
Although in this case Ms Chan did not engage a real estate agent or property manager to provide these services on her behalf, in our view it is clear that she was engaged in providing precisely the same services to prospective tenants. For the purposes of s 46 of the EO Act it is not necessary that services be provided for payment.
We therefore accept that Ms Chan was a person who provides services for the purpose of s 46 of the EO Act.

If so, what were those services?

The evidence in this case supports the conclusion that the services provided by Ms Chan included the provision of certain kinds of information to prospective tenants. That information included, relevantly, information as to whether the property was available and as to whether the interior of the property was able to be inspected. We also accept the argument advanced by counsel for Mrs Pickett and Mr Pickett that the relevant service should be characterised not just as the provision of information but more particularly as the provision of accurate information in relation to these matters.

Did Ms Chan refuse to provide Mrs Pickett (and therefore Mr Pickett) with those services?

Counsel for Ms Chan submitted that even if Ms Chan was a person who provides services, namely the provision of accurate information in relation to whether the property was available and whether the interior of the property was able to be inspected, there was no breach of s 46(a) of the EO Act because Ms Chan in fact provided that service to Mrs Pickett.
We are unable to accept that submission. Ms Chan told Mrs Pickett that another couple had applied for the property and would probably take it, and Ms Chan did not correct Mrs Pickett when Mrs Pickett told her that she shouldn't 'waste my time or yours if there is no chance of getting the property'. We are satisfied that the information Ms Chan conveyed to Mrs Pickett was that the property had been taken by another tenant and was no longer available for lease. That was not correct. The property had not been leased.
Further, in her conversation with Ms Oades on Monday 22 September 2008 Ms Chan conveyed the clear understanding that the property was still available for lease. Ms Oades' evidence was that Ms Chan told her that she had 'been telling people the property is taken if I don't like the tenants'. That comment clearly indicated that the property had not been let to a tenant at the time of Ms Chan's conversation with Ms Oades. Furthermore, Ms Chan told Ms Oades that she was readvertising the property which also confirmed that the property had not been leased to another tenant.
Having regard to the evidence of Mrs Pickett and Ms Oades, we are satisfied that the information provided by Ms Chan to Mrs Pickett was inaccurate insofar as Ms Chan's comments suggested that the property had been leased to another tenant.
We are satisfied that that constitutes, in effect, a refusal to provide Mrs Pickett with accurate information in relation to the property. The information which would have been accurate was that at the time of Mrs Pickett's conversation with Ms Chan, the property had not been leased to another tenant and was still available.

Did Ms Chan's refusal to provide Mrs Pickett with the information constitute discrimination against Mrs Pickett (and Mr Pickett) on the ground of their race?

Mrs Pickett and Mr Pickett must establish that:
1.Ms Chan treated them less favourably than she treated, or would have treated, a person who was not Aboriginal, in the same or not materially different circumstances; and
2.If so, there was a causal connection between that treatment and their race – that is, that Ms Chan treated Mrs Pickett and Mr Pickett less favourably because they were Aboriginal.

Less favourable treatment

Mrs Pickett and Mr Pickett must prove on the balance of probabilities that Ms Chan treated them 'less favourably' than she would have treated another person of a different race in the same or not materially different circumstances: Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at [234] [236] (Gummow, Hayne and Heydon JJ). The expression 'less favourably' in s 36 of the EO Act bears its ordinary meaning.
In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable: Purvis at [224] (Gummow, Hayne and Heydon JJ).
In order to determine if Mrs Pickett and Mr Pickett were treated less favourably than in the same or not materially different circumstances Ms Chan would have treated a person of a different race, it is necessary to identify a comparator with whom the Tribunal can compare the treatment given to Mrs Pickett and Mr Pickett. Undertaking that comparison will enable a determination to be made as to whether the treatment in the actual circumstances of this case was 'less favourable' than the treatment which would have been afforded in the hypothetical circumstances: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
Establishing less favourable treatment requires a comparison to be made between how Ms Chan treated Mrs Pickett and how she treated or would have treated a person who was not Aboriginal in the same or not materially different circumstances. In the present case, counsel for Mrs Pickett and Mr Pickett submitted that it is open to the Tribunal to rely on the evidence of Ms Oades as indicating how Ms Chan treated or would have treated a person who was not Aboriginal in the same or not materially different circumstances. We accept that submission.
It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison: Zangari and St John Ambulance Service [2010] WASAT 6 (Zangari) at [38]. The circumstances in which that information was provided to Ms Oades were relevantly the same, or not materially different, from those surrounding Mrs Pickett's contact with Ms Chan. Ms Chan responded to a telephone enquiry by Ms Oades, who said she was ringing on behalf of her daughter in relation to the property. Ms Oades told Ms Chan that her daughter was in her 30's and was employed.
Counsel for Ms Chan submitted that Ms Chan did not treat Mrs Pickett and Mr Pickett less favourably because Ms Chan provided the same information to each person who rang her to enquire about the property. Counsel submitted that the information Ms Chan provided to all callers was that the property was available but that there was a tenant interested in it already.
For the reasons we have given above, however, we are satisfied that Ms Chan provided information to Ms Oades in their telephone conversation on 22 September 2008, which indicated that the property was still available for lease at that time. We are satisfied that by comparison with the information Ms Chan was willing to provide to Ms Oades, it can be said that Ms Chan treated Mrs Pickett (and therefore Mr Pickett) less favourably than in the same circumstances or in circumstances that were not materially different, she treated a person who was not Aboriginal.

Causal connection between the less favourable treatment and race

Mrs Pickett and Mr Pickett must prove on the balance of probabilities that Ms Chan discriminated against either or both of them on the ground of their race in either or both of the ways rendered unlawful by s 46(a) and (c) of the EO Act. Counsel for Ms Chan submitted that there was no causal connection between Mrs Pickett and Mr Pickett's race on the one hand and, on the other hand, the treatment afforded by Ms Chan to them, and in particular to the information she provided to Mrs Pickett, namely that the property was taken.
In order to succeed, Mrs Pickett and Mr Pickett need not show that Ms Chan intended to discriminate against them. It is the effect of a person's words and actions, not their underlying intent, that is the governing factor in determining whether their words and actions gave rise to discrimination: Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 (Jamal) at 259 260 (Kirby P) and 264 265 (Samuels JA) and Zangari at [28] and the cases there cited.
It is also unnecessary for Mrs Pickett and Mr Pickett to prove that their race was the sole or the dominant reason for the less favourable treatment which they say Ms Chan afforded them. Section 5 of the EO Act makes clear that it is enough that a person's race is one reason for any less favourable treatment afforded him or her: see also Zangari at [29] and the cases cited therein. Nevertheless, an act which amounts to discrimination must be deliberate, that is, it must have been done with the knowledge of the race of the aggrieved person: Jamal at 265 (Samuels JA).
In many cases involving discrimination, and particularly race discrimination, there is no direct evidence of the motivation for the alleged discriminatory conduct. In that situation, an applicant will invite the court or tribunal to draw an inference that the conduct complained of was motivated by discrimination. An inference must be logical, rational and connected to the evidence and can only be drawn from facts that are found to be proved: Zangari at [48] and see the cases cited therein. It is well established that an inference of racial discrimination should not be drawn if other more probable and innocent explanations are available: Department of Health v Arumugam [1988] VR 319 at 332 (Fullagar J).
There is some circumstantial evidence which might be relied upon to draw an inference that it was their race which was the reason for the less favourable treatment afforded to Mrs Pickett and Mr Pickett. That circumstantial evidence includes the fact that Ms Chan did not mention to Mrs Pickett in any of their first three telephone calls that the property had been taken, when on Ms Chan's version of events, Mr Watts had already asked her to keep the property for him and his wife. It was not until after Ms Chan discovered that Mrs Pickett and Mr Pickett were Aboriginal that she told Mrs Pickett that the property was already taken.

In addition, it is necessary to assess Ms Chan's explanation for why she continued to take calls from potential tenants including Mrs Pickett, notwithstanding that she had agreed to keep the property for Mr and Mrs Watts. When an explanation is offered by an alleged discriminator for his or her conduct, it is necessary to decide if that explanation is a probable one. It is insufficient for it to be a possible explanation. There must be an acceptable level of likelihood, otherwise it is only conjecture rather than a plausible explanation: Gama v Qantas Airways Ltd(No 2) [2006] FMCA 1767 at [7], citing Carr v Baker (1963) 36 SR (NSW) 301 at 306 307 (Jordan CJ).
Ms Chan's evidence was that she was continuing to take calls from potential tenants, notwithstanding that Mr Watts had requested that she keep the property for him and his wife, because she wanted to 'keep her options open'. If that was the case, we would have expected that Ms Chan would have been willing to permit another prospective tenant to inspect the interior of the property, and to engage in discussions concerning the lease, until such time as Mr Watts signed a lease over the property.
If these pieces of evidence were the only evidence in support of a causal connection between Mrs Pickett and Mr Pickett's race and their less favourable treatment by Ms Chan, it would have been difficult to draw the inference that discrimination on the ground of race was the reason, or one of the reasons, for that less favourable treatment. Other innocent explanations may have included that Ms Chan genuinely believed that Mr Watts would enter into a lease of the property and did not want to create false hopes for any prospective tenants who enquired about the property. Ms Chan also pointed to the fact that Mrs Watts was Ethiopian, and relied upon this fact as an indication that she had not or would not discriminate against prospective tenants on the grounds of their race.
However, in the present case, there is direct evidence which supports the conclusion that the reason for the less favourable treatment afforded to Mrs Pickett and Mr Pickett was the fact that they were Aboriginal. Ms Oades' evidence was that Ms Chan told her that she had 'been telling people the property is taken if I don't like the tenants' and that 'she went on to explain how she had an Aboriginal lady call the day before asking about the property'. Ms Oades also stated that Ms Chan commented that 'these people are not reliable and do nasty things to each other'. In other words, it was clear from what Ms Chan told Ms Oades that the reason why she told Mrs Pickett that the property was taken, was that Mrs Pickett was Aboriginal and she did not consider that Aboriginal people would make reliable tenants.
We are satisfied that it is more probable than not that Ms Chan's refusal to provide Mrs Pickett with accurate information in relation to the property was because she and her son were Aboriginal.

Conclusion in relation to alleged breach of s 36(1) and s 46(a) of the EO Act

Having regard to the approach in Briginshaw, we are satisfied that Ms Chan refused to provide Mrs Pickett (and therefore Mr Pickett also) with services, namely information that the property was still available for lease, that this was less favourable treatment than she afforded a person (Ms Oades) who was not Aboriginal, in circumstances which were the same or not materially different, and that the reason for her refusal to provide the services was that Mrs Pickett and Mr Pickett were Aboriginal.
We therefore find the complaint of a breach of s 46(a) of the EO Act to be made out.

Did Ms Chan discriminate against Mrs Pickett and Mr Pickett on the ground of their race in the manner in which she provided Mrs Pickett with information in relation to the property?

Applying the principles in relation to proof of discrimination to which we referred in the previous section, we are also satisfied, having regard to the approach in Briginshaw, that Ms Chan discriminated against Mrs Pickett and Mr Pickett on the grounds of their race in the manner in which she provided Mrs Pickett with information in relation to the property. We are satisfied that Ms Chan gave Mrs Pickett some information in relation to the property, and that the manner in which she provided that information was to provide inaccurate information, namely to convey that the property was no longer available for use.
We are also satisfied, by comparison with the manner in which Ms Oades was provided with information in relation to the property, that Ms Chan treated Mrs Pickett and Mr Pickett less favourably than she treated a person who was not Aboriginal in the same or not materially different circumstances, and that she did so because Mrs Pickett and Mr Pickett were Aboriginal.
We therefore find the complaints of a breach of s 46(c) to be made out.

Compensation – general principles

Under s 127(b) of the EO Act, if the Tribunal finds a complaint of discrimination substantiated it may do any one or more of the things set out, including to order a respondent to pay to a complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. Compensable loss includes injury to feelings or humiliation: Airflite Pty Ltd v Goyal [2003] WASCA 45 (Airflite) at [44] (Pullin J), citing Hall v A & A Sheiban Pty Ltd (1989) EOC 92-250 (Hall) at 77,395 and 77,433.
In determining the appropriate quantum of damages it is necessary to bear in mind that the purpose of the legislation is remedial, not punitive: Hall at 77,432. Further, although awards should be restrained, they should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the legislation gives effect: Airflite at [44]; Alexander v Home Office (1988) 1 WLR 968.
In addition, in determining the quantum of damages the character and circumstances of a respondent as well as of an applicant should be taken into account: Airflite at [44] (Pullin J).
Finally, we also take into account the fact that s 127(b)(i) of the EO Act imposes a ceiling of $40,000 on the compensation which may be awarded for any loss or damage suffered as a result of a respondent's conduct. This statutory maximum is to cover all damages, including economic loss plus general damages, and also covers cases of discrimination which may be suffered over a long period of time: Airflite at [50].
Counsel for Mrs Pickett and Mr Pickett suggested that an appropriate award of damages in the present case would be in the range of between $2,000 and $5,000 for Mrs Pickett and for Mr Pickett. Counsel for Mrs Pickett and Mr Pickett pointed to the decisions in King, Lynton and Sheather, to which we have already referred, in which awards of $3,000, $18,000 and $10,000 respectively, were made. Those cases all involved discrimination on the ground of race in the area of accommodation.
In the accommodation context, in Coyne v Trittler (1993) EOC 92538 the Equal Opportunity Tribunal awarded an Aboriginal complainant $5,000 for hurt and humiliation she suffered as a result of racial discrimination by the proprietor of a caravan park when he peremptorily evicted her family, and another Aboriginal family, as a result of an assumption that certain behaviour was attributable to one of the complainant's children. As a result of the eviction, the complainant and her family were forced to live with friends in over-crowded accommodation for the next 12 months.
There have been a number of cases arising out of instances of racial discrimination by hotel proprietors in the area of the provision of services, for refusing drinks service to Aboriginal patrons. Awards of compensation in these cases have, for example, ranged from $750 (Coe and Anor v Bobilak (19841985) EOC 92026), to $1,000 (Mungaloon and Ors v Stemron (1991) EOC 92345) to $2,500 and $5,000 (Holmes and Ors v Donhardt and Ors (1989) EOC 92270). In a number of those cases, it was recognised that the discrimination arose from a misjudgment on the part of the hotel proprietor or barman or as a result of a momentary confrontation, rather than as a result of a deliberate policy of discrimination.
In Thompson v Evans (1999) EOC 93019 (Thompson) the Equal Opportunity Tribunal awarded an Aboriginal man $2,500 for the humiliation he suffered as a result of racial discrimination by a doctor when, in front of the man's wife and children, the doctor used insulting language to tell him to leave the doctor's surgery. The man's wife was also awarded $1,000 compensation for her hurt and humiliation as a result of being forced to endure an offensive monologue that was clearly related to her husband's removal from the premises, and which left her with a feeling that she was being characterised as a second class citizen because of her husband's race.
Comparisons with the quantum of damages awarded in other cases is ultimately of limited assistance because the quantum of damages awarded inevitably depends upon the facts relating to the discrimination, and its particular impact on the complainants concerned. However, the decision in Thompson appears to us to bear some similarities to the present case in terms of the impact of the discrimination on the parties involved, the fact that the circumstances of discrimination were confined to one occasion, and the fact that the awards recognised the comparative difference in the impact of the discrimination on the complainants.
We turn now to the evidence in support of the claim for damages.

The evidence in support of the claim for damages

The evidence in relation to the damage suffered by Mrs Pickett and Mr Pickett was very limited.
Mrs Pickett described her stomach churning and tightening, she described feeling 'sick that this kind of conduct still happens' and that she felt anger and frustration and had shed tears as a result of Ms Chan's conduct. Mrs Pickett said that she wonders why Aboriginal people have to prove themselves every day. Mrs Pickett confirmed that she did not see a doctor in respect of her distress following her conversations with Ms Chan but rather that she was a Christian and had found strength through her faith.
The evidence of Ms Oades confirmed that when she saw Mrs Pickett at work the next day, Mrs Pickett was distressed about what Ms Chan had said. There was no evidence as to how long Mrs Pickett's distress lasted, but there was no suggestion that the distress she experienced interfered with her ordinary activities.
Counsel for Ms Chan submitted that Mrs Pickett had not provided any medical evidence in support of her claim for compensation and that the pain and suffering she claimed to have suffered was not proven. He also relied upon the fact that Mrs Pickett's evidence as to her conversation with Ms Chan was that they spoke in cordial terms, the implication being that therefore Mrs Pickett had not in fact suffered any pain or humiliation as a result of Ms Chan's comment. As we have already noted, we prefer the evidence of Mrs Pickett as to the conversations she had with Ms Chan.
We accept Mrs Pickett's evidence as to the nature of the impact on her of Ms Chan's discriminatory conduct, and we find that Mrs Pickett's feelings of hurt and humiliation resulted from Ms Chan's discriminatory conduct.
As for the evidence concerning the damages suffered by Mr Pickett, Mr Pickett provided a witness statement in which he stated that:
My mum and [my partner] told me that there had been a house in Balga, and that once my mum disclosed we are Aboriginal, the landlady said the house was already taken.
Mr Pickett described his reaction when his mother told him this:
I was very disappointed when mum told me this and could not believe this is still happening in Australia. I was fully employed at the time, and could afford to pay the rent, and I have good references from previous landlords.
In his evidence, Mr Pickett described being 'pretty disappointed' that race would make a difference and that Ms Chan's conduct had made him 'feel quite small'. Mr Pickett also confirmed that he had not had any medical treatment or undergone any counselling as a result of discovering what Ms Chan had told his mother.
According to Mr Pickett's statement, after speaking with Ms Chan, he and his family kept looking for a house and found one approximately four to six weeks later. No claim was made for any loss suffered by Mr Pickett's family as a result of not finding a rental property for some six weeks. Accordingly, the sole basis for Mr Pickett's claim for compensation was his hurt, humiliation and embarrassment as a result of what occurred.
In respect of Mr Pickett's claim for compensation, counsel for Ms Chan submitted that the only evidence of damage suffered by Mr Pickett was 'disappointment' at what had occurred. While that was so, Mr Pickett's evidence should not be viewed as trivialising the impact of Ms Chan's conduct on him. His evidence that her conduct made him 'feel quite small' suggests an undermining of his confidence and sense of selfworth.
We accept Mr Pickett's evidence as to the nature of the impact on him of Ms Chan's discriminatory conduct, and we find that Mr Pickett's feelings of hurt and humiliation resulted from Ms Chan's discriminatory conduct.

Ms Chan's character and circumstances

In determining the quantum of compensation, we have also taken into account Ms Chan's character and circumstances. The evidence was that Ms Chan operates her own wood floor business and that she owns two rental properties. In addition, Ms Chan submitted evidence that in 2009 she had had some treatment for a condition which resulted from this intense stress in her life, and that this treatment was continuing.
Ms Chan submitted two character references from persons with whom she has had business dealings. The first was from Mr Ajahn Brahm, the Abbot of the Bodhinyana Buddhist Monastery who met Ms Chan in a business context. He stated that he had never seen or heard any racially discriminatory behaviour from Ms Chan towards members of the Buddhist Society of Western Australia and that he considered it out of character for Ms Chan to engage in racially discriminatory behaviour. However, it appeared that the degree of contact between Mr Brahm and Ms Chan was very limited and we therefore place little weight on this reference.
Ms Chan also relied on a reference provided by Ms Kate Curtis, the principal of a real estate agency which had previously managed the tenancies for Ms Chan's two rental properties. Ms Curtis stated that during the term that her firm managed the properties for Ms Chan, they did not experience any discriminatory behaviour from Ms Chan nor had they ever had a situation where an application was not accepted by her on the basis of the ethnicity of the applicants. This reference provides support for the inference that the present case was not an instance of a deliberate policy of discrimination against Aboriginal tenants by Ms Chan. However, Ms Chan's comments to Ms Oades tend to countervail that inference. Ultimately we have relied on Ms Curtis' reference solely as evidence that Ms Chan has not engaged in similar discriminatory conduct in the past.

Quantum of damages

Counsel for Ms Chan submitted that this was a case of Aboriginal people being sensitive about matters concerning their race. He submitted that in the case of Mrs Pickett and Mr Pickett they had been 'knocked back' in relation to other applications for accommodation and had reached the point where 'enough was enough'. He submitted that the application for damages should be dismissed. We are unable to accept that submission.
Racial discrimination is a serious matter, and an award of damages should take that into account. However the limited evidence concerning Mrs Pickett's damages claim and the evidence of Ms Chan's character and circumstances, suggest that an award at the lower end of the scale is warranted. We consider an award of a total of $2,000 is appropriate by way of compensation for the hurt and humiliation suffered by Mrs Pickett as a result of Ms Chan's conduct in breach of s 46(a) and (c) of the EO Act.
As Mr Pickett did not speak with Ms Chan, he did not experience, directly, discrimination by Ms Chan. Nevertheless, we accept his evidence that the report of what Ms Chan had told his mother had made him 'feel quite small' and that he had felt 'pretty disappointed that once you say your race it makes a difference'.
We are of the view that any award of damages to Mr Pickett should be less than that awarded to his mother, to take into account the fact that he did not speak directly to Ms Chan and therefore did not experience the embarrassment and humiliation of her discriminatory conduct first hand. In all the circumstances, we consider that an award of a total of $1,000 would be appropriate to compensate Mr Pickett for the damage he suffered by reason of Ms Chan's breach of s 46(a) and (c) of the EO Act.

Orders

1.Mrs Pickett's claims of discrimination contrary to s 46(a) and s 46(c) of the Equal Opportunity Act 1984 (WA) are substantiated.
2.Ms Chan is ordered to pay Mrs Pickett the sum of $2,000.
3.Mr Pickett's claims of discrimination contrary to s 46(a) and s 46(c) of the Equal Opportunity Act 1984 (WA) are substantiated.
4.Ms Chan is ordered to pay Mr Pickett the sum of $1,000.
5.Mr Pickett's claims of discrimination contrary to s 47(1)(a) and s 47(1)(b) of the Equal Opportunity Act 1984 (WA) are dismissed.

I certify that this and the preceding [188] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT