Sheather v Daley

[2003] NSWADT 51

CITATION:	Sheather -v- Daley [2003] NSWADT 51
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sharna Sheather RESPONDENT Arthur Daley
FILE NUMBER:	021101
HEARING DATES:	06/02/2003
SUBMISSIONS CLOSED:	02/06/2003
DATE OF DECISION:	03/12/2003
BEFORE:	Sidoti C - Judicial Member; Nemeth de Bikal L - Member; Quayle C - Member
APPLICATION:	Race Discrimination - Accommodation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT J Watts, solicitor RESPONDENT S Collins, solicitor
ORDERS:	1. The Tribunal finds that Sharna Sheather, the applicant, was discriminated against on the ground of race in breach of the Anti-Discrimination Act 1977 (NSW) by Arthur Daley (the respondent); 2. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision.

1 The Tribunal finds that Arthur Daley, the respondent, discriminated against Sharna Sheather, the applicant, on the ground of race in the provision of accommodation. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision. The Tribunal gives the following reasons for this decision.

INTRODUCTION

2 This decision concerns a complaint of discrimination on the ground of race in the provision of accommodation under the Anti-Discrimination Act 1977 (NSW) s 20. Sharna Sheather, the applicant, lodged her complaint with the President of the Anti-Discrimination Board on 19 September 2000. Ms Sheather provided further information on 22 September 2000. The President first informed Arthur Daley, the respondent, of the complaint on 23 March 2001 and Mr Daley replied on 11 May 2001. The President formally notified Mr Daley of the complaint on 15 June 2001. Having formed the view that the complaint could not be conciliated the President referred it to the Administrative Decisions Tribunal on 2 September 2002. The Tribunal conducted a hearing into the complaint on 6 February 2003 in Inverell.

THE COMPLAINT

3 Ms Sheather complains that Mr Daley discriminated against her on the basis of her Aboriginality in refusing to lease to her premises at 8 Lang Street, Inverell. Mr Daley owned the premises. Ms Sheather had shared the premises with a friend, Cindy Milgate, the lessee of the premises, from January 2000 to early July 2000 when Ms Milgate left the premises and terminated the lease. Ms Sheather says that she asked Mr Daley to lease the premises to her but that he refused to do so. She says that he made derogatory remarks about Aboriginal people. She also says that his treatment of her indicates his attitude towards Aboriginal people. She argues that those remarks and that treatment establish the basis of his refusal of her request to lease the premises.

4 Mr Daley denies all the substantive allegations in Ms Sheather’s complaint. He says that Ms Sheather did not express a wish to lease the premises until after he had arranged for them to be leased to a new tenant. He says that he was not aware before then that Ms Sheather was interested in becoming the tenant. He says that he had no concern about Ms Sheather living in the premises, that in fact he had specifically approved that and that he was aware of her Aboriginality at all relevant times. He denies that he discriminated against her on the ground of race.

THE LAW

5 The application arises from a complaint under the Anti-Discrimination Act 1977 (NSW). Section 7 of the Act sets out what constitutes discrimination on the ground of race:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

6 Section 20(1) of the Act prohibits discrimination on the ground of race in accommodation.

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:
(a) by refusing the person’s application for accommodation,
(b) in the terms on which the person offers the person accommodation, or
(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.

7 At the hearing Ms Sheather gave evidence on her own behalf. She called four other witnesses: her mother, Lyn Sheather; her former housemate, Cindy Milgate; Ms Milgate’s mother, Lyn Milgate; and Nicole Nenadic. Mr Daley gave evidence on his own behalf and did not call further witnesses or present further evidence. Ms Sheather and Mr Daley filed in advance of the hearing statements by all witnesses except Lyn Milgate whose statement was provided at the hearing and Ms Nenadic who did not provide a written statement. The written statements of Ms Sheather’s witnesses were all made within a few days of the alleged events in 2000 and so were contemporaneous with those events. All witnesses were available for cross-examination in person except Lyn Milgate who was cross-examined by telephone from Goondiwindi.

Evidence for Ms Sheather

8 In summary Ms Sheather’s evidence was as follows.

In January 2000 Ms Sheather went with Cindy Milgate to Mr Daley’s office to arrange the lease of premises at 8 Lang Street, Inverell. Ms Milgate and Ms Sheather had intended to lease the premises jointly but the lease agreement named Ms Milgate alone as the lessee. Ms Sheather was named in the lease only as an approved resident of the premises. Ms Sheather completed the lease agreement as directed by Mr Daley. She signed the lease as witness to Ms Milgate’s signature. Other documents completed at or about that time, including the statement of the condition of the premises and the bond lodgement form, named both Ms Milgate and Ms Sheather as tenants. Ms Sheather paid half the bond money to Mr Daley. Mr Daley did not display any reluctance to accept Ms Sheather as an occupant of the premises.

In July 2000 Ms Milgate decided to leave the premises. On 1 July Ms Sheather asked her to speak with Mr Daley about Ms Sheather taking over the lease. Ms Milgate told Ms Sheather that she had spoken to Mr Daley but he had refused, stating that he doubted Ms Sheather’s capacity to pay the rent. At no time had the rent been in arrears.

At Ms Milgate’s suggestion on 1 July Ms Sheather herself spoke with Mr Daley to ask him to lease the premises to her. In response he made derogatory remarks about Aboriginal people visiting the house and making noise, causing the neighbours to complain, and about damage to houses caused by Aboriginal people on the "south side" of Inverell. He denied that he had anything against Aborigines but said that he did not want his property degraded.

On 7 July Mr Daley arrived at the premises to enable prospective tenants to inspect the property. Ms Sheather was in the house at the time and was unaware that they were coming. Mr Daley opened the door himself. Ms Sheather asked him again whether she could take over the lease. He replied, "We have already had this conversation". He admitted the prospective tenants to the house without Ms Sheather’s prior approval or knowledge. She telephoned her mother, Lyn Sheather, to tell her what had happened.

Mr Daley brought other prospective tenants to the premises later the same day when Ms Sheather was there. On this occasion he knocked on the door. He opened the door before Ms Sheather could answer it. Again he did not inform Ms Sheather in advance. He told her that he had telephoned Ms Milgate to inform her, leaving a message for her on her mobile phone answering service.

Ms Sheather telephoned her mother again as soon as Mr Daley and the prospective tenants left. Her mother told Ms Sheather that she had telephoned Ms Milgate who had said that Mr Daley had not contacted Ms Milgate about the inspections.

On 8 July Ms Sheather met Nicole Nenadic at a local hotel. Ms Nenadic had been at school with Ms Sheather, although not in the same year, and was not a close friend. Ms Nenadic said that she had been looking for accommodation and Mr Daley had taken her through the premises at 8 Lang Street. She said that Ms Sheather had not been there at the time but that she had known Ms Sheather lived there because of photographs around the house. Ms Sheather had not been aware that Ms Nenadic had inspected the house.

Ms Sheather left the premises about 16 July. Ms Milgate had earlier asked Mr Daley to provide a written reference for Ms Sheather to assist her to obtain new accommodation. He had declined on the basis that Ms Sheather had not been the tenant.

Ms Sheather said that Mr Daley did not return any of the bond money to her although she had paid him half the bond when the premises were leased.

After vacating the premises Ms Sheather lived for a time with her cousin as there was no room in her parents’ home at the time. When room became available there she moved back to her parents’ home. She was unable to find other suitable rental accommodation in Inverell. She later spent some time in Sydney.

Ms Sheather said that she had felt "low" and "upset" by Mr Daley’s remarks because he had referred to her Aboriginality. She said that words could not describe how she had felt.

9 Cindy Milgate gave evidence that was consistent in all significant respects with that of Ms Sheather. In summary her evidence was as follows.

Ms Milgate was tenant of the premises at 8 Lang Street, Inverell, and lived there until 5 July 2000. She had moved into the premises the preceding January with Ms Sheather.

Ms Milgate had a conversation with Mr Daley "sometime in June" in which he objected to Aboriginal people visiting the premises and said that he had had complaints of this. He said this affected the property value and that "this would not be good for selling reasons".

On 30 June 2000 Ms Milgate told Mr Daley that she was leaving the premises for family reasons related to the illness of her grandfather. She asked him whether Ms Sheather could take over the lease. He refused. He said he thought that Ms Sheather was not capable of paying the rent. She contested that.

Ms Milgate told Ms Sheather about this conversation with Mr Daley and Ms Sheather herself then telephoned Mr Daley. He again refused to rent the premises to her.

After confirming on 1 July that Ms Sheather would not be staying, Ms Milgate gave formal written notice to Mr Daley that she would be vacating the premises. She again asked him whether Ms Sheather could take over the lease and was again told no. She asked him to ensure adequate notice before any prospective tenants were taken to inspect the premises.

On 7 July Ms Sheather’s mother Lyn telephoned Ms Milgate at work to ask whether Mr Daley had notified her of an inspection of the premises that afternoon. She told Lyn Sheather that she had not been contacted. Later that day after work she went to Lyn Sheather’s home. She was told that Mr Daley had said he had left a message on her mobile telephone answering service. She checked the service and found a message from Mr Daley. She then telephoned Mr Daley and told him that it was not good enough to leave a message, that Ms Sheather could be showering or otherwise engaged when he took prospective tenants and that he should first speak in person to Ms Sheather or herself. He said there had been no one at home when he made the first inspection but that Ms Sheather had been at home for the second and third inspections.

Ms Milgate said that she had "pleaded with Mr Daley on several occasions" on Ms Sheather’s behalf but had been unsuccessful.

Ms Milgate said that Mr Daley had refunded bond money to her but not to Ms Sheather.

In cross-examination Ms Milgate was asked about the date of the alleged conversation with Mr Daley in which she asked for a reference for Ms Sheather and he made disparaging comments about Aboriginal people visiting the house. Ms Milgate’s written statement placed this conversation in June but she agreed that it was more likely to have occurred in July.

10 Ms Sheather’s mother, Lyn Sheather, also gave evidence that was consistent in all substantive respects with other evidence for Ms Sheather. Lyn Sheather’s evidence in summary was as follows.

On 7 July 2000 Lyn Sheather was contacted by her daughter Sharna Sheather. Her daughter was upset. She told her that Ms Milgate was leaving the premises and relinquishing the lease and that Mr Daley had brought prospective tenants there without prior notice. Her daughter telephoned her a second time a little later the same day to say that Mr Daley had again brought prospective tenants without notice. Lyn Sheather then telephoned Mr Daley to ask why he had done this. Mr Daley replied that Ms Milgate was the tenant, not Sharma Sheather, and that he only had to notify Ms Milgate. He said that he had left a message on Ms Milgate’s mobile telephone answering service.

During this conversation Lyn Sheather asked Mr Daley whether he "had something against Sharna". He replied that "he had nothing against Aboriginals".

The conversation was "quite heated". Mr Daley reiterated that Sharna Sheather was not a tenant of the premises. He said that he had taken three groups of prospective tenants to inspect the premises, that no one was home the first time but that Sharna Sheather was home on the other two occasions.

Lyn Sheather contacted Ms Milgate at work the same afternoon. Ms Milgate said she had not spoken to Mr Daley that day. She said that she had asked Mr Daley for notice of any inspection. She also said that she had asked Mr Daley to permit Sharna Sheather to take over the lease but he had refused.

At around 6.30 that evening Ms Milgate came to Lyn Sheather’s home. Ms Milgate said again that she had not spoken to Mr Daley that day. She then telephoned him from Lyn Sheather’s home. She told Mr Daley that she had told him to give notice of inspections and that she had been at work that afternoon and so had not received a call from him.

The same day Lyn Sheather telephoned Lyn Milgate, Cindy Milgate’s mother. Lyn Milgate told her that she had overheard a conversation between Mr Daley and her daughter about Aboriginal people visiting the house and Mr Daley’s concern that this would devalue the property.

Lyn Sheather said that after leaving the premises Sharna Sheather went to stay with her cousin and then moved home when space became available. She said that Sharna Sheather could not rent accommodation in Inverell because she did not have a renting record.

11 A written statement by Nicole Nenadic was presented at the hearing. In it Ms Nenadic said that around mid 2000 she and her boyfriend had been looking for rental accommodation in Inverell. They went with Mr Daley to inspect premises at 8 Lang Street. No one was there at the time. She saw photographs of Ms Sheather with whom she had been at school. A few days later she met Ms Sheather by coincidence. She had no clear recollection where this had occurred. She told Ms Sheather about the inspection. Ms Sheather was surprised and was "quite annoyed by this fact". Ms Nenadic said that she and her boyfriend looked at a house a week for a couple of months because it was very hard to find suitable accommodation in Inverell. She said there was not much rental accommodation available at the time.

12 The final witness for Ms Sheather was Lyn Milgate, Cindy Milgate’s mother. Ms Sheather had filed a written statement by Lyn Milgate. Lyn Milgate was working in Goondiwindi at the time of the hearing and provided oral evidence and was cross-examined by telephone. Lyn Milgate said that she was at 8 Lang Street when Mr Daley had visited. Ms Sheather was not present at the time. She overheard a conversation between Mr Daley and her daughter in which Mr Daley had asked about Aboriginal people visiting 8 Lang Street. He said that he was concerned that his property would be devalued because of it. Lyn Milgate could not recall the exact date of the conversation but that her daughter was still living at the house. That would place it before 5 July 2000.

Evidence for Mr Daley

13 Mr Daley gave evidence on his own behalf. He did not call any other witnesses. He denied not only that he discriminated against Ms Sheather on the ground of race but most of the evidence presented by or for Ms Sheather. In summary Mr Daley’s evidence was as follows.

Mr Daley entered a tenancy agreement with Ms Milgate on 12 January 2000 for lease of the premises at 8 Lang Street, Inverell. At the time he was asked for permission for Ms Sheather to reside in the premises with Ms Milgate. At no time was it suggested that Ms Sheather would be a co-tenant. At the time he knew that Ms Sheather was Aboriginal because of her features. He did not object either at the time or subsequently to Ms Sheather residing in the premises. He said that Ms Sheather had completed the lease agreement but denied having instructed her what to write. He said they "did it together".

Mr Daley acknowledged that Ms Sheather had contributed half the bond money. He said that Ms Milgate did not have enough to pay it in full herself and so she borrowed the deficiency from Ms Sheather. He said that Ms Sheather’s payment did not indicate any intention or understanding that she would be a co-tenant. Ms Sheather’s name on the bond form and receipt merely indicated her interest in part of the bond money.

On 5 July Ms Milgate gave Mr Daley a handwritten note giving notice of termination of the lease agreement. He had not been informed before receiving this note, either verbally or in writing, of Ms Milgate’s wish to terminate. At no stage during this conversation or subsequently did Ms Milgate ask whether Ms Sheather could take over the lease and Ms Milgate did not indicate in any way that Ms Sheather wanted to take over the lease. At no time either before or after this conversation did Ms Sheather ask him whether she could take over the lease.

The house was advertised for renting on 7, 11 and 14 July. On 7 July Mr Daley was contacted by a person interested in renting the house who wanted to inspect it. Mr Daley telephoned Ms Milgate on her mobile telephone to arrange a suitable time for the inspection. He spoke to her personally and she said that she would ring Ms Sheather and let her know. He said that he had the telephone number at the house but that he did not telephone Ms Sheather. He spoke to Ms Milgate personally and that was all.

Later that day Mr Daley went to the premises with the prospective tenant, knocked on the door and was admitted by Ms Sheather. Mr Daley did not show any other prospective tenant through the premises as this person agreed to lease the property from 27 July. In particular he said that he had no recollection of having seen Ms Nenadic before her attendance at the hearing or of having taken her through the premises.

Mr Daley said that according to his telephone records he made two telephone calls to Ms Milgate’s mobile telephone that day, one of 19 seconds at 12.32 pm and the other of 29 seconds at 6.21 pm. The first was to arrange the inspection and the second was to advise that the premises had been let.

Ms Milgate and Ms Sheather moved out of the premises on 16 July. Mr Daley gave Ms Milgate a cheque for $320 being the balance of the bond money. He did not make any payment to Ms Sheather. The new tenant moved into the premises earlier than originally intended, on 17 July.

On or about 16 July Lyn Sheather, Ms Sheather’s mother, telephoned Mr Daley to argue that her daughter was a co-tenant and was entitled to remain in the house. Mr Daley replied that he had no idea that she wished to remain and that he had already leased it. Mr Daley agreed that he had referred to Aboriginal people in this conversation and said that he had in mind trouble on the "south side" of Inverell in relation to damage and destruction of properties occupied by Aboriginal people. It had been necessary to tear buildings down and to sell houses as a result. He did not have any other conversation with Lyn Sheather.

Mr Daley was asked about the availability of rental accommodation in Inverell. He said that after advertising a property for rent it was usual for "a lot of people" to want to inspect the property and to have ten to fifteen people wanting to rent it. The demand for rental accommodation fluctuates.

14 The onus of proof in anti-discrimination complaints lies with the complainant on the balance of probabilities. In this complaint Ms Sheather must prove that it is more probable than not that Mr Daley refused to lease the premises in question to her on the ground of race.

15 This complaint does not raise any question of law or contest of legal interpretation, only of fact. It is unusual in that the respondent, Mr Daley, not only denies that he discriminated against the applicant, Ms Sheather, on the ground of race but he also denies almost every one of the key facts and events contained in the statements of the applicant and her witnesses.

16 Mr Daley denies that he knew that Ms Sheather wanted to lease the premises. Both Ms Sheather and Ms Milgate said that they had a number of conversations with him to that effect before and on 7 July 2000 when he agreed to lease them to a new tenant. Lyn Sheather also said that she had asked Mr Daley on 7 July, before the property was leased, to permit her daughter to take over the lease. She also said that Ms Milgate told her on 7 July that she had raised the issue with Mr Daley.

17 Mr Daley denies that he had a conversation with Cindy Milgate about Aboriginal people visiting the premises. Both Ms Milgate and her mother Lyn Milgate testify to the conversation. Further Sharna Sheather said that Cindy Milgate told her about the conversation and Lyn Sheather said that Lyn Milgate told her about overhearing it.

18 Mr Daley denies that he had made any derogatory remarks to Ms Milgate, Lyn Sheather or Sharna Sheather about Aboriginal people generally or about Ms Sheather in particular because of her Aboriginality. All three gave evidence that Mr Daley made these kinds of comments to them. In addition Lyn Milgate said she overheard a conversation in which Mr Daley made these kinds of comments.

19 Mr Daley denies having had any conversation with Ms Milgate’s mother and could not recall her being present at the premises on any occasion when he visited. Lyn Milgate gave evidence of an occasion when she was present and overheard a conversation about Aboriginal people.

20 Mr Daley asserts that he took only one prospective tenant, who became the new tenant, to inspect the premises. Ms Sheather said that he took two groups while she was present and Ms Milgate and Lyn Sheather both said that Mr Daley had told them he took three groups through the house. Ms Nenadic also gave evidence that Mr Daley had taken her through the house when no one was home.

21 Mr Daley denies having made any comment about Ms Sheather’s ability or inability to pay the rent. Both Ms Sheather and Ms Milgate gave evidence that Mr Daley made these comments to them.

22 Mr Daley denies that he had been asked to provide a rent reference for Ms Sheather and had refused to do so. Ms Milgate said he had.

23 To accept Mr Daley’s account would require the Tribunal to disregard the evidence of five witnesses. Mr Daley’s legal representative tested these witnesses through cross-examination seeking to raise questions about their recollections and to find inconsistencies in their accounts. He failed to do so. One or two doubtful issues were identified, most notably in relation to the date of the alleged meeting between Mr Daley and Ms Milgate at which he referred negatively to Aboriginal visitors to the house. However this and the few other uncertainties do not relate to a single matter of substance.

24 Ultimately, in view of the sheer weight of evidence in support of Ms Sheather’s account of events, the Tribunal is required to accept her account or find that Ms Sheather and her witnesses had fabricated the whole story. No other interpretation is possible when the magnitude of the conflict with Mr Daley’s version of events is considered.

25 The witnesses for Ms Sheather presented as credible and consistent. The key witnesses had detailed recollection of events, assisted no doubt by the contemporaneous statements they had made. Although Lyn Milgate’s recollection was not as clear she too had made a contemporaneous statement. Relationships among them were not so close as to throw their objectivity into doubt. Indeed, Mr Daley suggested many times during the hearing that Ms Milgate had left the premises not for family reasons, as she had stated, but because of a falling out with Ms Sheather. Ms Sheather and Ms Milgate did not accept this but, if it is true, it would enhance the credibility of the evidence of Ms Milgate and her mother, not undermine it. Although Ms Sheather knew Ms Nenadic their relationship was not especially close, seemingly no more than would be common in a small community.

26 By contrast Mr Daley could rely on little more than his own memory of events. At times his memory was unclear, which is understandable after almost three years. He did not produce detailed contemporaneous notes or other documents that might have assisted his memory or supported his evidence. He did not call other witnesses in aid of his account. Because the applicant in an anti-discrimination case bears the onus of proof, none of this need be fatal to the respondent. However, the lack of evidence in support of Mr Daley other than his own recollection in the face of strong, consistent evidence from a number of witnesses for Ms Sheather leaves him in a difficult position.

27 The Tribunal considers the evidence for Ms Sheather compelling. It finds on the balance of probabilities that Ms Sheather did want to take over the lease, that Mr Daley knew this, directly from Ms Sheather and indirectly through Ms Milgate and Lyn Sheather, before he leased the property to the next tenant and that Mr Daley refused Ms Sheather’s request. The Tribunal must now address the question whether Mr Daley’s refusal of the lease to Ms Sheather was based on race.

28 Again the applicant, Ms Sheather, bears the onus of establishing on the balance of probabilities that the basis of the refusal was race. Ms Sheather is not required to raise and disprove every other possibility. However, in considering the evidence and her legal representative’s arguments the Tribunal must be open to other possible interpretations of the facts. In this case the respondent, Mr Daley, himself has eliminated the most logical possible alternatives.

29 One possible reason for refusing a lease is that there is a record of failure to pay rent. Mr Daley suggests in his evidence that Ms Milgate and Ms Sheather had had some difficulty in making rental payments. Ms Milgate and Ms Sheather denied this and the evidence indicated no significant deficiency in their performance in this respect. Yet, even if Mr Daley thought there was a problem in paying the rent, he was unable to assert this as the basis for any refusal to lease the premises to Ms Sheather. On the contrary he denies that he had made any comment whatsoever at the time about Ms Sheather’s ability to meet rental payments. Accordingly this could not have been the basis of any refusal to rent to her.

30 Another possible reason for refusing a lease is that the premises have not been cared for properly. However, Mr Daley agreed with all other witnesses that the premises were in excellent condition while Ms Milgate and Ms Sheather lived there and when Ms Sheather left the premises some weeks after Ms Milgate had moved out. Mr Daley could not and did argue that failure to keep the premises clean and tidy was the basis for any refusal to rent to Ms Sheather.

31 Ms Sheather alleges that Mr Daley refused to lease the premises to her and that the refusal was based on her Aboriginality. Mr Daley said that he had entered many lease agreements with Aboriginal people, that he had worked with many Aboriginal people and that he had never had a complaint from an Aboriginal person.

32 There is repeated consistent evidence of consciousness of race in Mr Daley’s conduct. Sharna Sheather, Cindy Milgate, Lyn Milgate and Lyn Sheather all gave evidence of comments made by Mr Daley that indicate negative views of Aboriginal people as potential tenants. While giving evidence Mr Daley himself repeated some of these views. Lyn Sheather told how in a telephone conversation on 7 July she had asked Mr Daley whether he had something against her daughter. According to Lyn Sheather Mr Daley replied "that he had nothing against Aborigines". Lyn Sheather had not asked about his attitude towards Aboriginal people and she had not introduced Aboriginality into the conversation. Mr Daley did, immediately interpreting a question about his attitude towards her daughter as a question about his attitude towards Aboriginal people.

33 Ms Sheather’s legal representative submitted that Mr Daley did not know that Ms Sheather was Aboriginal when he agreed to her residing in the house, contrary to Mr Daley’s evidence that he identified her as Aboriginal at the time because of her features. He argues that Mr Daley did not know until some months later, that he learned of her Aboriginality immediately before he went round to the house and raised the issue of Aboriginal visitors with Ms Milgate, sometime in late June or early July. On this interpretation Ms Sheather’s Aboriginality was fresh in Mr Daley’s mind when a few days or at most a few weeks later she asked him whether she could take over the lease. Ms Sheather argues that her request was refused on that basis.

34 The evidence suggests another possible interpretation of Mr Daley’s actions consistent with Mr Daley’s evidence that he identified Ms Sheather as Aboriginal when she came with Ms Milgate to take the lease and that he was aware at all relevant times that she was Aboriginal.

35 Ms Milgate and Ms Sheather both testified that they intended to be co-tenants of the premises and that they thought they were entering the lease on that basis. Both had signed the lease, although it transpired that Ms Sheather had signed only as a witness to Ms Milgate’s signature. But both signed the statement of conditions of the premises as tenants and the bond money was lodged in both names. There is clear evidence that they intended to be co-tenants. Both were young and quite inexperienced in legal matters generally and in renting accommodation in particular. For Ms Sheather it was her first renting experience. By contrast Mr Daley was a property owner and landlord with extensive experience in leasing. Ms Sheather said she completed the lease form as directed by Mr Daley. Mr Daley agrees that she filled out the form but says that they did it together. In spite of their clear intentions Ms Milgate became the lessee in the lease agreement and Ms Sheather did not. Mr Daley agreed to her becoming a resident but she was not a co-tenant and Mr Daley was not dependent on her for payment of the rent and for the care and upkeep of the premises.

36 Mr Daley’s attitude towards Ms Sheather is evident in other ways. Ms Milgate and Ms Sheather both testified that they each contributed half the rental bond, each giving her contribution to Mr Daley. Mr Daley denied that he had received money from Ms Sheather, saying that Ms Sheather had given the money to Ms Milgate as a loan and that Ms Milgate had given it all to him. The rental bond receipt indicates otherwise.

37 A similar attitude is evident in Mr Daley’s persistent refusal to telephone Ms Sheather to arrange inspections by prospective tenants. He insisted on notifying Ms Milgate, even though he knew Ms Milgate was at work and had in any event already moved out of the premises and that Ms Sheather was still resident there. He said he had the telephone number of the house.

38 The evidence indicates that Mr Daley wanted nothing to do with Ms Sheather, that for him she did not exist. Even while giving evidence at the hearing, Mr Daley had little difficulty remembering Ms Milgate’s name but regularly forgot Ms Sheather’s. He referred to her as "the lady at the house" or, pointing to her, as "her" and "this one".

39 Whatever the explanation the evidence is consistent and compelling that Mr Daley was very conscious of Ms Sheather’s Aboriginality. As Ms Sheather’s legal representative put it, there is a "common thread" of the issue of Aboriginality in all Mr Daley’s conduct in relation to Ms Sheather. Both possible interpretations of his actions lead to the one conclusion, that Mr Daley’s decision not to lease the premises to Ms Sheather was based on race.

DAMAGES

40 Having found that Ms Sheather suffered discrimination on the ground of race in access to accommodation the Tribunal must consider the appropriate order to make (Anti-Discrimination Act 1977 (NSW) s 113). The Tribunal is able to award damages up to a maximum of $40,000 by way of compensation for loss or damage suffered by reason of the conduct complained of. An award of damages is not a punishment and is not to be punitive. Rather it should attempt to provide some appropriate compensation for loss, including any monetary loss, personal injury or distress.

41 Mr Daley’s legal representative argued that, if the Tribunal found for Ms Sheather, then any damages should be nominal. He said that Ms Sheather had suffered no real injury as a result of any discriminatory action by Mr Daley. He pointed out that Mr Daley had taken no action to evict Ms Sheather from the premises. He said that, if Ms Sheather considered herself a co-tenant of the premises, then she could have remained in possession after Ms Milgate left but that she had not attempted to do so. On this argument, any loss or damage Ms Sheather suffered was due entirely to her own action in vacating the premises on 16 July. Therefore any damages awarded against Mr Daley should be nominal as his actions caused no real injury to Ms Sheather.

42 Ms Sheather’s legal representative rejected this line of argument. He said that Ms Sheather was a naïve, unsophisticated and inexperienced renter who thought she had no legal right to remain in the house and so reluctantly but voluntarily vacated it when Mr Daley refused to lease it to her.

43 The Tribunal accepts Ms Sheather’s representative’s argument and rejects that of Mr Daley’s representative. There is a direct connection between Mr Daley’s discriminatory actions and any harm caused to Ms Sheather. It would be objectionable for the Tribunal to find that Mr Daley had discriminated against Ms Sheather on the ground of race and then to excuse him from liability for any harm resulting from that discrimination on the basis that Ms Sheather might have refused to leave even though she thought she had no right to remain. The fact is that Mr Daley told her she was not the tenant and refused her request to become the tenant. At no time did he indicate that she was entitled to stay or would be permitted to stay. Any harm suffered by Ms Sheather was a direct result of Mr Daley’s discriminatory action.

44 Ms Sheather does not argue that she suffered any monetary loss. There was some evidence that she did not recover her half of the rental bond. Mr Daley said that he had paid the appropriate balance of the bond in its entirety to Ms Milgate and that Ms Milgate was responsible for accounting to Ms Sheather for it. In the end this issue was not pursued and it was not submitted that this was a monetary loss that Ms Sheather could claim from Mr Daley. There was no evidence of other monetary loss.

45 The damage Ms Sheather suffered then and for which she should be compensated is the emotional injury from experiencing racial discrimination and the loss of her accommodation with consequent difficulties in acquiring appropriate new accommodation.

46 Ms Sheather gave evidence that she felt "low" and "upset" by Mr Daley’s remarks because he had referred to her Aboriginality. She said that words could not describe how she had felt. Her mother described how, when Ms Sheather telephoned her on 7 July, Ms Sheather was upset at the way she had been treated by Mr Daley. The evidence indicates that Mr Daley’s actions caused her considerable distress. She is entitled to damages for that distress and injury to her feelings. No one should have to suffer racial discrimination.

47 However, Ms Sheather’s greater damage arose from the consequences of being refused the lease. Ms Sheather was unable to secure suitable alternative accommodation. Ms Nenadic, who was looking for rental accommodation at the same time, gave evidence of the difficulty she encountered. She said there was a shortage of rental accommodation in Inverell at the time. Mr Daley, who is very knowledgeable of and experienced in the Inverell rental market, also gave evidence of the shortage of accommodation at the time, indicating that he could expect to have ten to fifteen people seeking to rent when a property was advertised.

48 The situation was harder for Ms Sheather than most other prospective tenants because she had no rental record. Ms Milgate gave evidence that she had asked Mr Daley to provide a reference for Ms Sheather but he had refused. Both Ms Sheather and her mother gave evidence that Ms Sheather was unable to obtain suitable rental accommodation.

49 As there was no room in her parents’ home at the time, Ms Sheather first moved into her cousin’s home. Later she moved in with her parents when space became available. She was very fortunate that she had family members who were willing and able to assist her.

50 Freedom from discrimination is a human right. Discrimination on a proscribed ground is a human rights violation. The Anti-Discrimination Act 1977 (NSW) is an expression of that. It provides remedies for prohibited discrimination. However, not all discrimination is equal in nature and effect. Where the act of discrimination itself relates to discrimination in the enjoyment of a human right, then another human rights violation occurs. The damage is compounded. So, for example, there is an inherent difference between discrimination that denies access to a swimming pool or a cinema, as serious as that may be, and discrimination that denies access to housing.

51 There is a human right to housing, recognised in the Universal Declaration of Human Rights article 25, the International Covenant on Economic, Social and Cultural Rights article 11 and the Convention on the Rights of the Child article 27, among other international human rights instruments. The Committee on Economic, Social and Cultural Rights, established by the United Nations Economic and Social Council to promote compliance with the International Covenant on Economic, Social and Cultural Rights, has said that the right is the right not to any shelter but to adequate housing. It has said that "adequate housing" must include legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location and cultural adequacy (General Comment 4 1991 paragraph 8).

52 In denying Ms Sheather a lease on the premises she occupied, Mr Daley’s act of discrimination diminished Ms Sheather’s enjoyment of her right to adequate housing. She was left with no permanent home, no access to suitable affordable shelter and no security of tenure.

53 Although Ms Sheather suffered no direct monetary loss the discrimination she experienced caused her grave injury. The compensation she should be paid must reflect the seriousness of damage caused by Mr Daley’s act of discrimination. However the statute limits the Tribunal’s jurisdiction to $40,000, a modest maximum when compared to the awards made in other jurisdictions for actions less serious than a violation of human rights. In spite of the seriousness of the discrimination Ms Sheather suffered the award to her must take account of the range of serious discrimination that can occur.

54 Accordingly the Tribunal orders Mr Daley to pay Ms Sheather $10,000 compensation on or before 28 days from the date of publication of this decision.