Sturgiss v BlaQ Aboriginal Corporation & Leha

[2025] NSWCATAD 244

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sturgiss v BlaQ Aboriginal Corporation & Leha [2025] NSWCATAD 244

Hearing dates:

3 June 2025
1 July 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member
M Maher, General Member

Decision:

(1) Pursuant to s 103(1) of the Anti-Discrimination Act 1997, the Tribunal amends the Applicant’s complaint such that it comprises of the following complaints:

(a) Complaint against the Second Respondent for racial discrimination in employment for the conduct and events alleged to have occurred on 31 October 2023.

(b) Complaint against the Second Respondent for racial vilification for the conduct and events alleged to have occurred on 31 October 2023.

(c) Liability of the First Respondent as employer and/or agent of the Second Respondent if the complaints against the Second Respondent in (a) and (b) are substantiated.

(d) Complaint against the First Respondent for racial discrimination in employment for the conduct and events alleged to have occurred from 31 October 2023 to 11 April 2024.

(e) Complaint against the First Respondent for victimisation as a result of the Applicant’s complaint/proceedings under the Anti-Discrimination Act 1997.

(2) Pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977, the Tribunal dismisses the whole of the Applicant’s complaint.

Catchwords:

ANTI-DISCRIMINATION – racial vilification – racial discrimination – victimisation - discrimination in work

Legislation Cited:

Aboriginal Lands Rights Act 1983 (NSW)

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Anderson v Thompson [2001] NSWADT11

Anning v Western Sydney University (No 2) [2019] FCCA 1313

Barry v Futter [2011] NSWADT 205

Bogie v The University of Western Sydney (1990) EOC 92 - 313

Brookfield v Yevad Products Pty Ltd [2004] FCA 1164

Burns v Sunol [2018] NSWCATAD 10

Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54

Haas v Hosking [2010] NSWADT 42

Jones v Dunkel (1959) 101 CLR 298

Majoor v Macquarie University [2022] NSWCATAP 213

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223

Shaikh v Commissioner, NSW Fire Brigades (1996) EPC 92-808

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

Sunol v Collier and anor (No 2) [2012] NSWCA 44

Taylor v Yamanda Aboriginal Association Inc & Anor [2016] FCCA 1298

Webb v GetSwift Limited (No 5) [2019] FCA 1533

Texts Cited:

None

Category:

Principal judgment

Parties:

Shane Sturgiss (Applicant)
BlaQ Aboriginal Corporation (First Respondent)
John Leha (Second Respondent)

Representation:

Counsel:
W Soon (Applicant)
K Tang (First Respondent and Second Respondent)

Solicitors:
Manning Lawyers (Applicant)
Williamson Barwick (First Respondent and Second Respondent)

File Number(s):

2024/00416204

Publication restriction:

None

REASONS FOR DECISION

Decision

1. The Applicant, Shane Sturgiss, alleges that John Leha, the Second Respondent, engaged in racial vilification and racial discrimination against him in the workplace.

2. Mr Sturgiss also alleges that BlaQ Aboriginal Corporation (“BlaQ”), the First Respondent, is liable for Mr Leha’s acts, and itself engaged in racial discrimination and victimisation in respect of Mr Sturgiss.

3. For the reasons that follow, the Applicant has not substantiated these complaints. The complaints are dismissed.

Overview

4. Mr Sturgiss commenced in the role of the CEO of BlaQ on 27 January 2022. Mr Sturgiss states that he is an Aboriginal man of the Ngarigo Land of Southeast NSW.

5. BlaQ is a not-for-profit incorporated Aboriginal community-controlled organisation (ACCO) and is the peak organisation for Aboriginal Lesbian, Gay, Bisexual, Transgender, Queer + Sistergirl and Brotherboy (LGBTQSB+) peoples and communities in NSW.

6. Mr Leha is the Chair of the Board of BlaQ.

7. On 11 April 2014, Mr Sturgiss lodged a complaint with Anti-Discrimination NSW. The President accepted the following for investigation:

1. A complaint against BlaQ for racial discrimination in employment for conduct and events alleged to have occurred from 31 October 2023 to 11 April 2024.

2. A complaint for racial vilification against Mr Leha for conduct and events alleged to have occurred on 31 October 2023.

3. A complaint of aid and abet against Mr Leha for conduct alleged to have occurred from 31 October 2023 to 11 April 2024.

8. In the complaint, Mr Sturgiss alleged that the following occurred on 31 October 2023:

1. Mr Leha attended the BlaQ office and was visibly upset in his tone, language and was using profanities.

2. Mr Leha called for Mr Sturgiss and on realising Mr Leha’s level of anger, Mr Sturgiss refused to meet with him.

3. Mr Leha walked to the centre of the office and in a raised voice, said words to the effect: “you shouldn’t even be here, you aren’t even black, you shouldn’t even be in this community. I will be getting the Board to demand a certificate of Aboriginality from you”.

4. Mr Leha blocked the only entry point to the office and continued with his alleged abuse. Mr Leha was asked to leave the office by a staff member as he was being “scary and it’s frightening”, but he refused.

9. After the incident on 31 October 2023, Mr Sturgiss alleged that Mr Leha convened a Board meeting of Directors, and consequently BlaQ placed Mr Sturgiss on gardening leave and removed Mr Sturgiss’ access to the staff, office and accounts.

10. BlaQ and Mr Leha responded to the complaint as follows:

1. There were several performance issues related to Mr Sturgiss’ employment. In particular, Mr Sturgiss failed to attend a key engagement on 31 October 2023 in the National Centre of Indigenous Excellence (NCIE) which was held in the same building that BlaQ operates from.

2. Mr Leha was attending the meeting at the NCIE on 31 October 2023 and, during the lunch intermission, attended BlaQ’s office to speak to Mr Sturgiss about work-related matters. In particular, Mr Sturgiss had called a Members’ meeting for the afternoon of 31 October 2023 and intentionally excluded Mr Leha and other directors from the meeting notice, in breach of the BlaQ Rule Book.

3. There was dialogue between Mr Leha and Mr Sturgiss, in which Mr Leha enquired about Mr Sturgiss’ heritage indicating that there may be a need for documentation to confirm Mr Sturgiss’ Aboriginal heritage.

4. The CEO position at BlaQ was and is not a culturally and gender identified position. This is because it would pose difficulties to fill the role of CEO.

5. BlaQ placed Mr Sturgiss on gardening leave to restrict access to operational matters of BlaQ. This was done because Mr Sturgiss had breached the Rule Book and had demonstrated a lack of good governance for the organisation as CEO.

6. BlaQ and Mr Leha did not:

1. Segregate Mr Sturgiss in any form or matter based on his race.

2. Require Mr Sturgiss to comply with a requirement or condition based on his race.

3. Treat Mr Sturgiss less favourably based on his race.

11. Mr Sturgiss commenced gardening leave on 2 November 2023. Mr Sturgiss applied for WorkCover on 3 November 2023, remains in receipt of WorkCover payments and has not returned to work at BlaQ.

12. On 8 November 2024, the complaint was referred by the President to the Tribunal under s 95 (1) of the Anti-Discrimination Act 1977 (NSW) (ADA).

13. In his Points of Claim, Mr Sturgiss alleged the following unlawful acts under the ADA:

1. Mr Leha engaged in racial vilification within the meaning of s 20C of the ADA by questioning whether Mr Sturgiss was of Aboriginal heritage, alleging he should not be a member of his own community and demanding that he prove his Aboriginality to the Board of BlaQ by a certificate.

2. Mr Leha engaged in racial discrimination within the meaning of Part 2 of Division 2 of the ADA, by tying the racial vilification to his employment with BlaQ and also seemingly tying it to his performance and performance review.

3. BlaQ, as Mr Leha’s employer and/or agent, is liable for Mr Leha’s acts of racial vilification and racial discrimination under s 53 of the ADA.

4. BlaQ engaged in racial discrimination within the meaning of Part 2 of Division 2 of the ADA in suspending Mr Sturgiss from work and also taking away his company property and access – when he was placed on gardening leave.

5. BlaQ engaged in an act of victimisation within the meaning of s 50 of the ADA, by placing Ms Sturgiss on gardening leave.

14. The matter has since proceeded before the Tribunal on the basis of these five alleged breaches of the ADA.

15. If the Tribunal finds that Mr Sturgiss has substantiated these allegations, he seeks an apology from both BlaQ and Mr Leha, as well as an order for damages.

16. The hearing took place on 3 June 2025 and 1 July 2025. Mr Sturgiss, Mr Leha, and two witnesses to the incident on 31 October 2023 gave evidence and were cross-examined.

Amendment of complaint

17. After the hearing, the Tribunal identified that Mr Sturgiss’ complaint was not amended by the Tribunal before or after the Points of Claim were filed to include the complaints that were not accepted for investigation by the President.

18. The Tribunal gave the parties the opportunity to advise the Tribunal and the other parties of their positions in writing in relation to formally amending the complaint such that the complaint would comprise of the five alleged breaches of the ADA.

19. Mr Sturgiss supported the complaint being amended. BlaQ and Mr Leha opposed the complaint being amended on the basis that the five alleged breaches of the ADA were not within the scope of the original complaint, and no application had been made by Mr Sturgiss to amend the complaint.

20. Section 103(1) of the ADA provides that the Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. As held in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 at [34], the Tribunal has power to amend a complaint of its own motion after the hearing has concluded and before a decision is made.

21. The Tribunal has decided to amend the complaint, pursuant to s 103 of the ADA to include these five alleged breaches of the ADA. This is because:

1. This avoids the delay and potential duplication that would affect all parties in having to lodge a fresh complaint with the President in circumstances where the complaint involves the same parties and the same circumstances: Chand, at [38].

2. The additional complaints relate to the same incident and period of time as the complaints that were referred by the President.

3. Since the Applicant’s Points of claim were filed, the matter has proceeded on the basis of the five alleged breaches of the ADA. The Respondents have filed material and made submissions in response to these specific five alleged breaches and therefore is not at a disadvantage if the complaint is amended.

Issues for determination

22. To determine whether Mr Sturgiss has substantiated the complaint in whole or in part, the issues that follow are to be determined by the Tribunal.

Issue 1 - Did Mr Leha, in the incident on 31 October 2023, engage in racial vilification against Mr Sturgiss?

Law – racial vilification

23. Section 20C of the ADA states that it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. “Race” is defined, in s 4 of the ADA, to include colour, nationality, descent and ethnic, ethno-religious or national origin.

24. A “public act” is defined in s 20B of the ADA as:

1. any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

2. any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

3. the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

25. Section 88 of the ADA provides that a vilification complaint cannot be made unless each person on whose behalf the complaint is made:

1. has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

2. claims to have that characteristic and there is no sufficient reason to doubt that claim.

26. The applicant bears the onus of proof “on the balance of probabilities” and must prove each element of their claim: Majoor v Macquarie University [2022] NSWCATAP 213, at [26].

Evidence – incident on 31 October 2023

27. To attempt to preserve the integrity of the evidence given during the hearing by witnesses to the incident on 31 October 2023, any other witness present at the incident on 31 October 2023 yet to give evidence was not permitted to be present in the Tribunal room while the other witnesses were being cross-examined.

Mr Sturgiss’s evidence

28. Mr Sturgiss attests in his statement signed on 9 April 2025, that on 31 October 2023, Mr Leha came into the BlaQ office, walked into the middle of the main room, said “Shane Sturgiss, we need to talk, get your ass in here”, and walked into the sub-office/separate room. Mr Sturgiss states that he walked over to the room where Mr Leha was, and Mr Leha shouted “Shane Sturgiss, this is your performance review”. Mr Sturgiss states that he told Mr Leha that there was a proper process for a review and Mr Leha was too angry, so he walked back to his desk in the main room.

29. Mr Sturgiss states in his written statement that Mr Leha walked towards him, with some desks in between, and “said loudly” “If you want to do it here, this is where we can do it”. Mr Sturgiss states that Mr Leha started a “barrage of verbal attacks” and then yelled:

“You shouldn’t be here, you are not even black, you shouldn’t even be part of the community and I’ll be getting the Board to demand a certificate of Aboriginality”.

30. In his statement, Mr Sturgiss states that “everyone could hear John’s yelling”. Mr Sturgiss states that another staff member (“Witness 1”) requested that Mr Leha leave as “you are quite frightening”. Mr Leha stated that he would leave if Mr Sturgiss went outside with him. Mr Sturgiss states that this sounded less like an offer to discuss something in private and more like an invitation to fight outside. Mr Sturgiss states that at this point, Mr Leha walked to the entrance, which was the only unlocked entrance to the office, stood at the door and “wouldn’t let anyone leave (or at least, blocked everyone from leaving)”. Mr Sturgiss said that Mr Leha stood at the entrance for about five minutes while he was talking about membership and payment of the membership fee. Mr Sturgiss said that Mr Leha then left with another staff member (“Witness 2”).

31. In his statement, Mr Sturgiss states that he asked the remaining staff members (Witness 1 and “Witness 3”) if they were all right. Mr Sturgiss said that they said no, and he said that they had better call the Police, which they agreed to. Mr Sturgiss then called the Police. Witness 1 and Witness 3 went to the oval nearby to get away from the situation. Mr Sturgiss said that he gave these two staff members the option of going home and they did. Another staff member (“Witness 4”) stayed with Mr Sturgiss while he waited for the Police arrive. Mr Sturgiss spoke to the Police. The Police then spoke to Mr Leha who had gone back to the conference room at the NCIE. No action was taken by Police in relation to the incident.

32. During cross-examination, Mr Sturgiss denied that performance issues had been raised with him prior to 31 October 2023 by the Board, Mr Leha or Dr Corrinne Sullivan, a Director of the Board.

33. During cross-examination, Mr Sturgiss was asked if he was friends with Witness 1, to which he said no. It was put to Mr Sturgiss that Witness 1 (who was cross-examined before Mr Sturgiss) had said that they were friends. Mr Sturgiss then said that Witness 1 was not a close friend and that that they had become closer since the incident, in terms of emotional support.

34. After the incident on 31 October 2023, Mr Sturgiss sent a written complaint via email to the Directors of the Board (not including Mr Leha) at 7:47pm that day to “advise of an incident that occurred today and provide examples of John Leha’s escalating violence, aggression and bullying towards me in recent months, resulting in today’s violent attack in the BlaQ office”. Mr Sturgiss requested that a meeting with the Board be called to discuss this complaint and to seek a “suitable remedy”. Mr Sturgiss said, in the complaint, that Mr Leha had said words to the effect:

“your time here is up, your (sic) not even black, I will be demanding a certificate of Aboriginality”.

35. In this complaint, there was no reference to Mr Leha blocking the entrance to the office. Mr Sturgiss stated in the complaint that Mr Leha walked into the centre of the office after leaving the smaller office/room where the verbal exchange continued before Mr Leha left with Witness 2.

Mr Leha’s evidence

36. Mr Leha attests in his statement that on 31 October 2023, he attended the NSW Coalition of Aboriginal Peaks Organisation (CAPO) meeting at the NCIE, which Mr Sturgiss would ordinarily be required to attend. As Mr Sturgiss was on personal leave, Mr Leha did not question his absence from the meeting. During the meeting, Mr Leha found out that Mr Sturgiss was in the BlaQ office and that he had convened a Members’ Meeting that evening. Mr Leha states that he decided to go and speak to Mr Sturgiss about not attending the CAPO meeting and to discuss his performance and query why he called a Members’ Meeting without inviting Mr Leha as the Chairperson of the Board of BlaQ.

37. Mr Leha states that when he entered the BlaQ office, he asked Mr Sturgiss to follow him into an office (the smaller office/room) for a conversation. Mr Leha states that he was “stern” in his tone, but did not raise his voice. Mr Leha states that Mr Sturgiss asked Mr Leha what he wanted to talk about, and Mr Leha said that it was in relation to Mr Sturgiss’ performance. Mr Leha denies that he said the conversation was to be a “performance review”. Mr Leha states that Mr Sturgiss then said that he was not comfortable having a conversation and returned to his desk.

38. Mr Leha states that after Mr Sturgiss went back to his desk, Mr Leha walked out of the office and asked Mr Sturgiss if he wanted to have this conversation in front of the office (in the open plan part of the BlaQ office). Mr Leha states that his tone was “stern” but that he did not raise his voice. Mr Leha states that he then proceeded to question Mr Sturgiss about the appropriateness of convening a Members’ Meeting without inviting Mr Leha as the Chairperson. Mr Leha then recalled a conversation that occurred about Mr Leha not being a financial member, which he states he was not previously aware of.

39. In his statement, Mr Leha attests:

“I acknowledge that I said to the Applicant that I would be asking for a document confirming his Aboriginality. The reason for this is that, as an Aboriginal community-based organisation, I had concerns about the decision-making process of the Applicant, and I wondered whether he had the sensitivities and cultural acumen and/or knowledge to fulfil the role and serve the Aboriginal community”.

40. In his statement, Mr Leha denies that he attempted to approach Mr Strurgiss’ desk at any point during the exchange and instead stood at the centre of the room. Mr Leha denies that he got angry, used abusive language or threatened Mr Sturgiss or Mr Sturgiss’ employment during the exchange. Mr Leha also denies preventing Mr Sturgiss from leaving the premises. Mr Leha states that after the verbal exchange with Mr Sturgiss, he went outside and had a cigarette with another staff member (Witness 2) who was in the office at the time.

40. During cross-examination, Mr Leha was asked what sort of document he was asking of Mr Sturgiss. Mr Leha stated that he was asking for confirmation of Aboriginality, which could be a letter from a Land Council or an ACCO. Mr Leha said that it was a three-pronged approach to Aboriginality and open to Mr Sturgiss’ interpretation. Mr Leha said that any form of documentation would suffice. Mr Leha stated that he had been concerned about Mr Sturgiss’ behaviour, about Aboriginal ways of being, knowing and doing, and that this behaviour became apparent post-2022. Mr Leha confirmed that after 31 October 2023, there was no follow up or further request of Mr Sturgiss by Mr Leha or BlaQ for any such documentation.

41. During cross-examination, Mr Leha stated there were no members of the public in the BlaQ office on 31 October 2023 and that non-employees had to make an appointment to attend the office. Mr Leha said that the premises was gated on all sides and required keys to get into. Mr Leha stated that the street entry is gated, and staff members have to “buzz” to get in and out of the gate.

42. During cross-examination, Mr Leha said that were posters and various other things blocking the courtyard side windows and obscuring vision. Mr Leha said that there were awards, posters, photos, flags, achievements and big plants on all sides of the windows.

43. During cross-examination, Mr Leha denied that he intended everyone in the office to hear what he had said on 31 October 2023 to Mr Sturgiss. Mr Leha denied that he intended everyone in the office to ostracise Mr Sturgiss after hearing what Mr Leha had said. Mr Leha confirmed that he had not asked any other employee of BlaQ for confirmation of Aboriginality, including in front of other employees.

Witness 1

45. Witness 1 signed a statement in support of Mr Sturgiss’ case and was cross-examined during the hearing.

46. During cross-examination, Witness 1 stated that she was employed by BlaQ for a total of eight days. Witness 1’s employment with BlaQ was terminated on 2 November 2023. Witness 1 applied for WorkCover in November 2023 due to the incident on 31 October 2023 and remains in receipt of WorkCover payments.

47. In her statement, Witness 1 states that on 31 October 2023, she was in the BlaQ office with Mr Sturgiss, Witness 2 and Witness 3. Witness 1 states that everyone was at their desks working when Mr Leha came into the main office through the front entrance. Witness 1 states that there was one front entrance to the BlaQ office which provides access to the NCIE’s courtyard, and that this was the only exit. Witness 1 included a diagram she had drawn of the BlaQ office in her statement.

48. Witness 1 states that Mr Leha’s facial expression seemed angry and his tone of voice was agitated. Witness 1 states that Mr Leha yelled at Mr Sturgiss in a loud voice demanding that he come into the small office and said words to the effect: “You need to come see me. You need to speak to me right now”. Witness 1 states Mr Sturgiss followed Mr Leha into the room, but the door was not closed. Witness states that she could hear Mr Leha yelling at Mr Sturgiss for about 30 seconds and then Mr Sturgiss walked back out and sat at his desk. Witness 1 states Mr Sturgiss then said words to the effect to Mr Leha: “I’m not speaking to you right now. It’s not appropriate to be speaking in this tone or on this topic with other staff around”.

49. Witness 1 states that Mr Leha came out of the small office and became highly agitated, speaking loudly and pacing around the offices, particularly around the desks of the staff members and the front door. Witness 1 states that she was scared for her safety and did not remember all the exact words but remembers Mr Leha saying words to the effect: “You’re not really Aboriginal”, and “Your time here is done”. Witness 1 states that during the incident she spoke and said words to the effect: “I am scared of your behaviour. Can you please leave the room?” Witness 1 states that after about 10 minutes, Mr Leha stopped shouting and pacing and yelled to Witness 2 to follow him out of the office.

50. Witness 1 states that as she went to leave the office with Witness 3, Mr Sturgiss asked if she was OK and agreed that they leave. Witness 1 states that she left the office with Witness 3 and went to a field at the back of the NCIE complex. Witness 3 called one of the office managers (Witness 4) and said that there had been an incident and to come to the oval. Witness 1 states that they returned to the office.

51. During cross-examination, Witness 1 clarified that Witness 4 came to the oval, and she explained to Witness 4 everything that had happened. Then she, Witness 3 and Witness 4 went back to the office.

52. In her statement, Witness 1 states that on return to the office, Mr Sturgiss, who was still at the office and had locked the doors so Mr Leha could not come back in, asked Witness 1 whether he should call the Police, to which she said yes. Witness 1 states that after she left the office she was called by Police and told them that she had concerns for her safety, concerns about possible lateral violence such as gossiping, bullying and exclusion by someone she knew to be a well-known figure in the Aboriginal community and concerns about her privacy.

53. During cross-examination, Witness 1 was asked about her discussion with Police and whether she had spoken about an Apprehended Violence Order or was a person in need of protection. At this point Witness 1 spontaneously started crying and a short adjournment was required.

54. During cross-examination, Witness 1 said that she is now friends with Mr Sturgiss and that prior to the incident, she had met Mr Sturgiss once or twice in a previous role, and had no prior or personal relationship.

55. Witness 1 made a written complaint at 7:04pm on 31 October 2023 which was sent to numerous organisations entitled “Formal complaint about AbSec CEO and abusive behaviour”. Witness 1 forwarded her written complaint to Mr Sturgiss at 7:06pm and stated “For good measure, I also emailed the Ombudsman to make them aware. Shane, I hope you are feeling okay tonight and know we have your back!”.

56. In the written complaint, Witness 1 referred to Mr Leha becoming “highly agitated and showing extreme levels of aggressive and intimidating behaviours”, and “pacing around the office, shouting and acting unprofessional” but did not refer to anything that Mr Leha said during the incident.

Witness 2

57. Witness 2 signed a statutory declaration on 30 May 2025, which was before the Tribunal. Witness 2 was initially not going to be available for cross-examination, however, to avoid a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298, at 320) the Respondent requested that Witness 2 attend the hearing to give evidence.

58. In the statutory declaration, Witness 2 states that she recalled the events of 31 October 2023 as described by Mr Sturgiss in his written statement. Witness 2 states that a conversation occurred on 31 October 2023, the two men engaged in the conversation which appeared to Witness 2 to be serious, and there were no raised voices. Witness 2 states that she does not recall the words used, however, there was “no distinguishable aggression, anger, tension, or physical confrontation to speak of”. Witness 2 states that she has never known Mr Leha to lose his temper in such a way or engage with any employee of BlaQ in such a manner.

59. During cross-examination, Witness 2 was not able recall much of what occurred on 31 October 2023. Witness 2 was not able to recall any exact words that were said and did not remember anything specific.

60. Witness 2 could not recall if Mr Leha was stressed out, angry or conveyed any strong emotions. Witness 2 did concede that she would remember if this was the case.

Investigation report – 23 January 2024

61. A workplace investigation was completed by an independent external investigator at the request of a legal firm engaged by BlaQ on 23 January 2024. The investigation addressed complaints made by Mr Sturgiss in October 2023, including the complaint made on 31 October 2023, as well as BlaQ’s concerns about Mr Sturgiss’ performance in the position of CEO of BlaQ.

62. The existence of the investigation report did not become apparent until the end of the cross-examination of Mr Leha. In these circumstances, the Tribunal allowed parties the opportunity to make submissions in relation to the investigation report prior to admitting the report into evidence.

63. The investigator interviewed Mr Leha, Dr Corrinne Sullivan (Director of BlaQ), Witness 2 and Witness 3. Witness 1 and Witness 4 were not directly involved in the investigation.

64. The investigator asked Mr Sturgiss to obtain medical clearance for participation in the investigation due to Mr Sturgiss having a submitted a certificate of capacity to BlaQ, declaring him unfit for work from 3 November 2023 to 3 December 2023. Rather than provide medical clearance, an unsolicited statement was submitted by Mr Sturgiss. The investigator therefore did not interview Mr Sturgiss.

65. In the unsolicited undated statement by Mr Sturgiss that was provided to the investigator, the following was noted in relation to the incident of 31 October 2023:

1. When Mr Leha walked from the side office he stated to Mr Sturgiss, words to the effect: “if you want, we can do this here, in front of everyone”.

2. Mr Leha than “started to unleash a barrage of insults and attacks” including words to the effect:

“Your time here is up, you’re not even black, you shouldn’t even be here, you shouldn’t even be in this community”.

“I will be demanding a certificate of Aboriginality from you, you are fucking done”.

66. Mr Leha was interviewed by the investigator on 20 December 2023 and gave responses to questions which were similar to the content of his written statement before the Tribunal and his answers to questions during cross-examination. Mr Leha did concede during the interview that “Looking back, I could have sent him [Mr Sturgiss] an email requesting a meeting rather than just walking into the office”.

67. During Witness 2’s interview on 18 December 2023 with the investigator about the incident on 31 October 2023, she stated:

1. She was seated at her desk, having lunch, checking emails and listening to music via an earpod in her left ear.

2. Mr Leha entered the office and said to Mr Sturgiss in a stern voice that he needed to speak to him privately. Mr Sturgiss said that he did not want to speak to Mr Leha privately as he seemed upset and was making him feel uncomfortable.

3. Mr Leha asked Mr Sturgiss on a couple of occasions to step into the office (the enclosed room adjacent to the open-plan office area), however Mr Sturgiss said no on each occasion.

4. Mr Leha told Mr Sturgiss that he needed to speak to him about his performance and sort out his membership details.

5. At one point, Witness 1 asked Mr Leha to take the conversation outside as she was feeling uncomfortable.

6. Mr Leha said to Mr Sturgiss that if he did not want to go into the office with him, would he come outside for a chat, but Mr Sturgiss refused to do so.

7. Witness 2 then walked towards Mr Leha and said let’s go outside and have a cigarette, which is what occurred.

8. There was no swearing, she did not recall anything being said about Aboriginality, and there was nothing intimidating or aggressive about Mr Leha’s behaviour towards Mr Sturgiss. Mr Leha used a stern voice, and his demeanour throughout the conversation was rushed, but that was as far as it went.

68. Witness 3 was not available to give evidence at the hearing due to health issues. Witness 3 was, however, interviewed by the investigator on 5 December 2023 in relation to the incident of 31 October 2023. During the interview, Witness 3 stated:

1. He was seated on the lounge having lunch when Mr Leha entered the BlaQ office, while Witness 1 and 2 were at their desks.

2. Mr Leha asked Mr Sturgiss to enter the other room and closed the door, however Witness 3 could still hear voices through the shut door. Witness 3 heard Mr Leha yelling about the Members’ meeting and Mr Sturgiss speaking in a normal tone.

3. Mr Sturgiss left the room and sat back at his desk. Mr Leha followed him out and confronted Mr Sturgiss again, in front of Witness 1, Witness 2 and Witness 3 and began yelling at Mr Sturgiss about payment for membership.

4. Witness 3 checked with Mr Sturgiss whether to include Mr Leha in the email notifying of the Members’ meeting as Mr Leha was the Chairperson of BlaQ, however Mr Sturgiss said not to invite Mr Leha because he was not a paid member despite having had plenty of time to organise payment of his membership.

5. Witness 1 asked Mr Leha to calm down as his behaviour was scaring her. Witness 1 then left the office and Witness 3 followed her. Witness 3 told Witness 1 that he would meet her in the backfields, where she headed off to.

6. Mr Leha was still arguing with Mr Sturgiss when Witness 1 re-entered the office. Mr Leha moved to the front doorway leading to the office and stood there blocking the passageway.

7. Mr Leha then threatened to get Mr Sturgiss sacked and also questioned his Aboriginality, including demanding that Mr Sturgiss provide a document from his group.

8. Mr Leha then asked Witness 2 to come outside with him, which she did.

9. Witness 3 left at this point to go and see Witness 1, and called Witness 4 to come to the backfields.

10. When Witness 3 returned to the office, Mr Sturgiss had locked himself inside. Mr Sturgiss let Witness 3 inside the office and told him he had called the Police.

69. Dr Corrinne Sullivan, in her interview with the investigator on 21 December 2023, spoke about various concerns that had been raised about Mr Sturgiss’ performance as CEO of BlaQ which predated 31 October 2023. Dr Corrinne Sullivan noted that it was her recollection of the Board meeting on 28 August 2023 that the Board had only approved a 12-month extension of Mr Sturgiss’ contract, and not a 3-year extension, and was surprised to see the approval of a 3-year term reflected in the minutes. Dr Corrinne Sullivan noted that Mr Sturgiss was the note-taker at Board meetings. Dr Corrinne Sullivan stated that it was unacceptable for Mr Sturgiss as CEO to think it was acceptable to exclude Board members for the AGM on the basis that they had not renewed their financial membership, and that all Board members should have been invited.

70. On 2 November 2023, Dr Corrinne Sullivan met with Mr Sturgiss. The record of this meeting was included in the investigation report. It was noted in this record that after the incident on 31 October 2023:

1. Mr Sturgiss had emailed at BlaQ staff – “due to the violent incident that occurred today”. Staff that were not present were notified of the incident.

2. Mr Sturgiss had called all staff to check if they were all OK.

3. Mr Sturgiss had spoken to Witness 3 and said that Witness 3 was prepared to write a statement. Mr Sturgiss said that he advised Witness 3 to write a statement and had advised him that he should write it himself and that the statement should only include Witness 3’s views and feelings.

4. Mr Sturgiss had a printed copy of the email from Witness 1 that had been sent to several recipients. Mr Sturgiss said that he received this at 7:06pm (on 31 October 2023) and was not aware of it before it was sent. Mr Sturgiss confirmed that he had responded to the email by thanking Witness 1 for the email.

5. Mr Sturgiss had sent an email to a member of the Gadigal Information Services Board, of which Mr Sturgiss was a community member, and disclosed that there had been a violent incident at the BlaQ office that day and had disclosed who was involved. Mr Sturgiss said that he had said that Mr Leha had come into the BlaQ office and was “abusive, aggressive, resulting in the police being called”.

6. Mr Sturgiss said that he believes this had been a culmination over months, that he found Mr Leha aggressive, violent and that there had been “lateral violence”.

71. The investigator made findings in relation to the credibility of the witnesses and what occurred on 31 October 2023, amongst other matters. As the Tribunal noted during the hearing, the investigator’s findings are not determinative of the issues in this matter. The Tribunal, however, does consider the interviews of the above-mentioned witnesses, and other documentary evidence considered in the investigation are relevant because they are contemporaneous to the incident on 31 October 2023 or dated less than two months after the incident.

Findings of fact

72. It is undisputed that the following occurred on 31 October 2023:

1. Mr Leha attended the BlaQ office where Mr Sturgiss, Witness 1, Witness 2 and Witness 3 were present. There were no non-employees or members of the public in the BlaQ office at this time.

2. Mr Leha asked Mr Sturgiss to attend the side/separate room/office for a discussion.

3. Mr Sturgiss followed Mr Leha to this room/office but then refused to partake in further conversation and returned to his desk.

4. Mr Leha followed Mr Sturgiss and continued the discussion with Mr Sturgiss in the presence of Witness 1, Witness 2 and Witness 3.

5. The conversation included discussion about the Members’ Meeting scheduled later that day, which Mr Leha had learned about that day, having not been included in the email invitation for the meeting.

6. Mr Leha left with Witness 2 at some point and did not return to the office.

73. Mr Leha also made a number of concessions in his evidence:

1. Mr Leha conceded that during the incident he did say to Mr Sturgiss that he would be asking him for a document confirming his Aboriginality.

2. Mr Leha conceded that he sought to discuss performance issues with Mr Sturgiss but did not use the words “performance review” or consider that the discussion was a performance review.

3. Mr Leha conceded that he used a stern tone but did not raise his voice or act in an aggressive or threatening manner. Mr Leha conceded, during the investigation, that he naturally does have a loud voice.

74. It is also undisputed that after the incident on 31 October 2023, there was no subsequent formal or other request of Mr Sturgiss for documentation to confirm his Aboriginality by Mr Leha or BlaQ.

75. Beyond these undisputed facts and concessions by Mr Leha, there is dispute about what Mr Leha said to Mr Sturgiss and the tone used by Mr Leha during the incident on 31 October 2023.

76. Mr Leha has maintained his version of what occurred on 31 October 2023 throughout the investigation and these proceedings.

77. Mr Leha was not, however able to recall whether he received certain emails prior to 31 October 2023 about the need to pay his membership fee. Mr Leha stated, both during the investigation and under cross-examination during the hearing, that while he accepted that he did receive emails about financial payments and membership prior to 31 October 2023, he had forgotten about the earlier communications when attending the BlaQ office and speaking to Mr Sturgiss. The Tribunal accepts this evidence, given the undisputed fact of the conversation about the Members’ Meeting and payment of Mr Leha’s membership fee.

78. There are inconsistencies in Mr Sturgiss’ recollections of what Mr Leha said on 31 October 2023 about Mr Sturgiss’ Aboriginality across three records - his written complaint of 31 October 2023, the unsolicited statement provided to the investigator, and his written statement of 9 April 2025:

1. In the written complaint sent to the Board of BlaQ from Mr Sturgiss at 7:47pm on 31 October 2023, Mr Sturgiss stated that Mr Leha said words to the effect: “your time here is up, your (sic) not even black, I will be demanding a certificate of Aboriginality”.

2. In the unsolicited statement by Mr Sturgiss provided to the investigator during the investigation which concluded in January 2024, Mr Sturgiss stated that Mr Leha said words to the effect: “Your time here is up, you’re not even black, you shouldn’t even be here, you shouldn’t even be in this community” and “I will be demanding a certificate of Aboriginality from you, you are fucking done”.

1. In Mr Sturgiss’ statement signed on 9 April 2025, Mr Sturgiss stated that Mr Leha said words to the effect: “You shouldn’t be here, you are not even black, you shouldn’t even be part of the community and I’ll be getting the Board to demand a certificate of Aboriginality”.

79. Mr Sturgiss was specific and detailed in the written complaint of 31 October 2023, and rather than summarising what was said, cited what was said in quotation marks. Mr Sturgiss’ first recollection, on the day that the incident occurred, did not include any reference to Mr Leha stating that Mr Sturgiss should not be part of the community (the Aboriginal/BlaQ community), or that he shouldn’t be here (at BlaQ) or that Mr Leha would be getting the Board to demand a certificate of Aboriginality from Mr Sturgiss.

80. These differences in Mr Sturgiss’ recollection of what was said on 31 October 2023 are material in this matter as Ms Sturgiss’ complaint is dependent on the words used by Mr Leha.

81. Previous authorities have given preference to relying on contemporaneous documents over human memory in terms of the recollection of witnesses years after the event. As noted by Lee J in Webb v GetSwift Limited (No 5) [2019] FCA 1533, at [18]:

“18. As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been “refreshed” by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth “may sometimes leak out from an affidavit, like water from the bottom of a well”. This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]:

“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”.

82. Further, as Lander J stated in Brookfield v Yevad Products Pty Ltd [2004] FCA 1164, at [416]:

“416. Often, especially in commercial causes, the best evidence of the events the subject of the inquiry in the trial is contained in the contemporaneous documents. Usually, documents are created in circumstances where parties do not expect the documents to surface in a trial. They often, therefore, contain the true account of the contemporaneous event.”

83. The Tribunal agrees with these judicial statements and in this case places more weight on what Mr Sturgiss recalled on the date of the incident, rather than on what he has added to his recollection in his statement of 9 April 2025.

84. The Respondents submitted that Mr Sturgiss and Witness 1 colluded in their evidence. The Respondent also submitted that the Tribunal should draw an adverse inference in relation to Witness 1 spontaneously crying at a point during cross-examination when asked about her discussion with Police.

85. In the unsolicited statement that Mr Sturgiss provided during the investigation, Mr Sturgiss stated that he was unaware that Witness 1 had made a separate complaint at the time that he met with Dr Corrinne Sullivan on 2 November 2023. There is, however, documentary evidence that Mr Sturgiss and Witness 1 made written complaints about Mr Leha within one hour of each other on 31 October 2023, Witness 1 had forwarded her complaint to Mr Sturgiss and he had replied to her email and sent her his own complaint. Both Mr Sturgiss and Witness 1 made an application for WorkCover at about the same time shortly after the incident on 31 October 2023. Both Mr Sturgiss and Witness 1 claimed to be the victims of “lateral violence” by Mr Leha.

86. Witness 1 was cross-examined before Mr Sturgiss, who was excluded from the Tribunal room, and said that she and Mr Sturgiss were currently friends. When Mr Sturgiss was subsequently asked if he was friends with Witness 1, his first answer was “no”. When it was put to him that Witness 1 had said that they were friends, he then qualified his answer and said that Witness 1 was not a close friend and that that they had become closer since the incident, in terms of emotional support.

87. During the hearing, Mr Sturgiss maintained his position that he was not aware of concerns raised about this performance as CEO prior to 31 October 2023. There was, however, reliable evidence before the Tribunal that concerns had been raised by Mr Leha and BlaQ about Mr Sturgiss’ performance in the role of CEO prior to 31 October 2023.

88. While there is insufficient evidence before the Tribunal to make a positive finding that Mr Sturgiss and Witness 1 colluded in their evidence, the Tribunal does find, that parts of Mr Sturgiss’ evidence are inconsistent (what Mr Leha is alleged to have said about his Aboriginality on 31 October 2023), and parts of his evidence conflicts with reliable documentary evidence (his awareness of Witness 1’s complaint prior to 2 November 2023 and concerns about his performance prior to 31 October 2023).

89. The Tribunal finds that Witness 1’s evidence was inconsistent with other evidence before the Tribunal such as Mr Sturgiss’ evidence and Witness 3’s evidence, including in relation to:

1. Seating positions of staff members when Mr Leha attended the office.

2. The movements of Mr Leha, when Witness 1 left the office.

3. Whether Mr Sturgiss spoke to Witness 1 before she left.

4. Whether Witness 1 returned to the office.

5. Whether Witness 1 was involved in any discussion with Mr Sturgiss about calling the Police.

90. Witness 3, however, was not available for cross-examination, which makes it difficult for the Tribunal to place significant weight on Witness 3’s version of events given during his interview with the investigator. The Tribunal was unable to make its own assessment of Witness 3’s credibility, and there are matters where Witness 3’s version conflicts with the versions given by other witnesses, which have not been tested.

91. Witness 2 was of minimal assistance to the Tribunal given her significant lack of recall, both during the investigation and while being cross-examined during the hearing.

92. In all the circumstances, the Tribunal makes the following findings as to the incident on 31 October 2023:

1. Mr Leha told Mr Sturgiss that he would be asking him for a document confirming his Aboriginality in the presence of the other employees in the BlaQ office at the time (“the comment”).

2. In making the comment, Mr Leha’s voice was stern and loud. Other employees in the BlaQ office could hear what was said while Mr Leha was in the open plan part of the BlaQ office.

93. Due to the lack of reliable and/or consistent evidence, the Tribunal does not make any positive findings in relation to any of the other conduct of Mr Leha alleged to have occurred on 31 October 2023, including that:

1. Mr Leha said or considered that the incident of 31 October 2023 was a “performance review” of Mr Sturgiss.

2. Mr Leha said that Mr Sturgiss should not be part of BlaQ or otherwise threatened to terminate his employment.

3. Mr Leha said that Mr Sturgiss should not be part of the Aboriginal or BlaQ community.

4. Mr Leha said that Mr Sturgiss was “not even black”.

5. Mr Leha said that he would be getting the Board of BlaQ to demand a certificate of Aboriginality.

6. Mr Leha yelled to the extent that members of the public outside the BlaQ building could have heard what he was saying.

7. Mr Leha blocked the entrance of the BlaQ office, not allowing anyone to leave during the incident.

Consideration

94. The following elements must be satisfied to establish an act of racial vilification under s 20C of the ADA:

1. The complainant has the characteristic (in this case, race), that was the ground for the conduct, or claims to have that characteristic and there is no sufficient reason to doubt that claim (ADA, s 88).

2. A public act, as defined in s 20B of the ADA.

3. Inciting of hatred towards, serious contempt for, or severe ridicule of, a person on the ground of the race of the person.

Is Mr Sturgiss Aboriginal or does he claim to be Aboriginal?

95. The determination of Aboriginality is often a sensitive and difficult question. Aboriginality may not be capable of any single satisfactory definition. However, a number of laws have been enacted and state services introduced for the sole benefit of Aboriginal persons and as a result some criteria are necessary to determine who is Aboriginal: Taylor v Yamanda Aboriginal Association Inc & Anor [2016] FCCA 1298, at [29].

96. Section 4(1) of the Aboriginal Lands Rights Act 1983 (NSW) defines an Aboriginal person as a person who is a member of the Aboriginal race of Australia, and identifies as an Aboriginal person and is accepted by the Aboriginal community as an Aboriginal person. This three-part definition, which Mr Leha referred to in his evidence, is used across a range of legislative and administrative contexts in NSW.

97. Up until Mr Leha’s comment to Mr Sturgiss on 31 October 2023, Mr Leha or BlaQ had not questioned whether Mr Sturgiss is Aboriginal. The role of CEO of BlaQ is not an Aboriginal identified role and therefore Mr Sturgiss would not have had to provide documentary evidence that establishes that he is an Aboriginal person to be appointed to that role.

98. While Mr Sturgiss has not filed any documentary evidence that establishes that he is an Aboriginal person, Mr Sturgiss attests that he is an Aboriginal man of the Ngarigo Land of Southeast NSW and he has worked with Aboriginal people, communities and organisations for many years.

99. The Tribunal is therefore satisfied that in relation to requirement in s 88 of the ADA, Mr Sturgiss claims to have the relevant characteristic (being a person of the Aboriginal race) and there is no sufficient reason to doubt that claim.

Was it a public act?

100. The following Tribunal cases provide some guidance in relation to the question of whether a private conversation could be considered a public act.

101. In Anderson v Thompson [2001] NSWADT 11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses, the words were spoken with such force they could be overheard by other residents.

102. In Haas v Hosking [2010] NSWADT 42, the Tribunal held that no public act had been committed by the Respondent, in the context of a dispute about a boundary between rural properties owned by the parties, when statements were allegedly made constituting racial vilification in the presence of two witnesses. At [77]-[78], the Tribunal stated:

77. The Tribunal is satisfied that any words uttered by Mr Hosking to either witness formed part of a private conversation, conducted in a normal conversational tone, which occurred on Mr Haas’ property or on the track immediately adjacent to the boundary of the property, and was not intended to be overheard by anyone other than the participants.

78. As the Tribunal is not satisfied that the alleged words of vilification were uttered, or that they were uttered in the presence, or within the sight or hearing, of any member of the public, it is unnecessary to determine whether they otherwise satisfied the requirements of section 20C(1).

103. In Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223, the Tribunal considered whether conduct that took place in a school “muster meeting” constituted a public act. The meeting was held at the start of each school day attended by staff and contractors. At [21], the Tribunal stated that the “general sense of the word “public” is something which is open to all or affecting the community as a whole”, and that the muster meetings, which were compulsory for teaching staff and were open to contractors, were not open to the general public. The Tribunal did not accept that “public” can consist of employees and contractors at the school. At [125], the Tribunal stated:

125. Here, the communications at muster meetings were made to an audience with whom Ms Head and Ms Bermingham had a pre-existing relationship (generally, a relationship with colleagues, subordinates or workers at Delroy). Further, the communications were in an employment context and a context in which school matters were discussed. This context indicates that the meeting was not public because matters confidential to staff could be discussed, including sensitive matters concerning named children. These factors point to a communication in a muster meeting being a private communication; or, at least, to such a communication not being a “public act”.

104. In Barry v Futter [2011] NSWADT 205, the Tribunal considered the meaning of “public act” in relation to transgender vilification. The Tribunal concluded at [73] that a “public act” does not include a private conversation, even if that conversation takes place in a public place. Whether a spoken communication amounts to a private conversation or a communication to the public will depend upon all the circumstances in which the communication occurs.

105. Applying the principles in these cases to the facts, the Tribunal finds that in the circumstances of this case, Mr Leha’s comment, although stated sternly and loudly in the presence and hearing of the other employees in the BlaQ office, was not heard and could not be heard by anyone outside of the BlaQ office at the time.

106. The Tribunal is not satisfied that the incident on 31 October 2023 constituted a public act. This is because:

1. Mr Leha did not communicate the comment to Mr Sturgiss to the public, and neither was the comment observed by the public, or distributed or disseminated to the public.

2. It is undisputed that there were no members of the public in the BlaQ office at the time of the incident, and the office could not be easily accessed by members of the public. The BlaQ office was in a gated site. There was only one main entrance to the BlaQ office which was on the courtyard side, the windows of which, on Mr Leha’s evidence, were obscured by various items.

3. The Tribunal has not found that the volume of Mr Leha’s voice was such that the comment could be heard by members of the public on the street or outside the gates of the site that the BlaQ building was on.

107. Mr Leha’s intended audience for the comment was Mr Sturgiss. Mr Leha had tried to have the conversation in the small office/room in the BlaQ office. The conversation, although it proceeded to occur in the presence of three other BlaQ employees, was a private conversation in the sense of it occurring between Mr Leha and Mr Sturgiss.

108. In case the Tribunal is wrong in this conclusion, the Tribunal considers below, whether if the comment was a public act, that act incited hatred, serious contempt or severe ridicule.

Did the comment incite hatred, serious contempt or severe ridicule?

109. In Burns v Sunol [2018] NSWCATAD 10, at [38] – [40], the Tribunal, dealing with a complaint of homosexual vilification, set out relevant legal principles to be applied when considering the element of incitement:

38. The element of incitement in the unlawful vilification provisions of the Act has been the subject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities:

(1)   An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction): Jones at [53]

(2)   The word “incite” in s 49ZT means “to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement”: Sunol at [41]; Margan at [11]

(3)   For a contravention of s 49ZT it is not necessary to establish that anyone was incited: Sunol at [41], or there was an intention to incite: Sunol at [41]; Margan at [12]

(4)   It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience: Sunol at [41]

(5)   The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs: Sunol at [61]

(6)   In making that assessment, the particular class to whom the act is directed, the audience or likely audience must be identified and considered: Sunol at [34]; [61]; Jones at [62], [63].

39. NCAT and the ADT have consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).

‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie).

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

40. See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].

110. The BlaQ CEO position description, which was included in the evidence before the Tribunal, notes that the occupant of the position will be able to demonstrate “Aboriginality with a demonstrated understanding of the issues facing Aboriginal LGBTIQ+SB in the delivery of quality services to meet outcomes in a sustainable and viable way”, and “Applications from Aboriginal and Torres Strait Islander people are strongly encouraged – Aboriginality is a genuine occupational requirement, and documentation may be required to demonstrate”.

111. Mr Leha’s evidence was that he personally had concerns about Mr Sturgiss’ decision-making, and wondered whether Mr Sturgiss had the sensitivities and cultural acumen and/or knowledge to fulfil the role of CEO of an Aboriginal community-based organisation and serve the Aboriginal community. That is, Mr Leha personally had doubts that Mr Sturgiss is Aboriginal as Mr Sturgiss claims he is.

112. It is apparent that the comment was made was in the context of a tense conversation, Mr Leha’s frustration due to Mr Sturgiss’ non-attendance at the CAPO meeting and not inviting Mr Leha to the Members’ Meeting that day, a history of concerns about Mr Sturgiss’ performance, and on a background of interpersonal conflict between Mr Sturgiss and Mr Leha.

113. It is also apparent that Mr Sturgiss has been affronted and distressed by the comment in terms of having his cultural identity questioned among BlaQ employees, who were under his supervision.

114. However, to establish the element of incitement, the impugned public act must be capable of inciting hatred towards, serious contempt for, or severe ridicule in an ordinary member of the class to whom the act is directed/the audience or likely audience: Sunol at [41].

110. The Tribunal is of the view that in the circumstances of this matter, stating that a person would be asked to verify that they are of a person of the Aboriginal race, would not objectively have the capacity to incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground of race. Mr Leha’s comment in saying that he would be asking Mr Sturgiss for a document confirming he is Aboriginal would not objectively have the capacity to incite hatred, serious contempt or severe ridicule of Mr Sturgiss as an Aboriginal person (which is significantly valued by BlaQ but not a mandatory requirement of the role of CEO).

Conclusion

116. The Tribunal is not satisfied that Mr Sturgiss has discharged the onus of proof for each of the elements to establish an act of racial vilification under s 20C of the ADA.

Issue 2: Did Mr Leha, in the incident of 31 October 2023, engage in racial discrimination against Mr Sturgiss?

Law - racial discrimination

117. Part 2 of the ADA covers discrimination on the ground of race.

118. Pursuant to s 7(1) of the ADA, a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator:

1. on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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

2. on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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

3. 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 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.

119. 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 persons of that race, or a characteristic that is generally imputed to persons of that race (ADA, s 7(2)).

120. In some circumstances, racial discrimination is not unlawful if an exception applies. Section 14(d) of the ADA states that providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race, is an exception.

121. The onus of proving the exception from conduct that is unlawful under the ADA or that is a contravention of the ADA, lies on the respondent (ADA, s 104).

Consideration

Does any of the alleged conduct constitute racial discrimination?

122. Mr Sturgiss alleges that Mr Leha engaged in racial discrimination, by tying the racial vilification to Mr Sturgiss’ employment with BlaQ and also seemingly tying it to his performance and performance review. Mr Sturgiss alleges that Mr Leha as a member of the BlaQ Board:

1. Attempted to subject Mr Sturgiss to an unscheduled performance review and/or dismissal because of his racial heritage.

2. Attempted to subject Mr Sturgiss to an additional condition upon his employment by BlaQ by the provision of a Certificate of Aboriginality.

3. Attempted to subject Mr Sturgiss to an additional condition upon his employment by BlaQ by forcing Mr Sturgiss to prove his racial heritage.

123. Mr Sturgiss has not substantiated that Mr Leha engaged in an act of racial vilification.

124. The relevant evidence in relation to the incident of 31 October 2023, and the Tribunal’s factual findings as to what occurred, is set out under Issue 1. Due to the lack of reliable and/or consistent evidence, the Tribunal has not made positive findings that:

1. Mr Leha said or considered that the incident of 31 October 2023 was a performance review of Mr Sturgiss.

2. Mr Leha said that Mr Sturgiss should not be part of BlaQ or otherwise threatened to terminate his employment.

3. Mr Leha said that he would be getting the Board of BlaQ to demand a certificate of Aboriginality.

125. In relation to the conduct alleged by Mr Sturgiss, what is left for the Tribunal to determine is the question of whether the statement by Mr Leha, that he would be asking Mr Sturgiss for a document confirming his Aboriginality, constitutes racial discrimination.

126. To establish a complaint of racial discrimination under s 7(1) of the ADA, there firstly must be differential treatment (direct discrimination), segregation or a requirement or condition that the complainant is required to comply with (indirect discrimination).

127. In Anning v Western Sydney University (No.2) [2019] FCCA 1313, the Court found that the applicant, who was alleging indirect discrimination, did not identify any particular, unreasonable requirement or any occasion on which an unreasonable requirement had expressly been imposed on her by the University, preferring instead to point to the general circumstances of her employment and describe them as unreasonable. The Court held at [289] that although an unreasonable requirement need not be express, as there are many ways other than issuing an order to make a person feel that they must do something, it must nevertheless be an unreasonable requirement in fact, not simply the perception of one.

128. Mr Leha told Mr Sturgiss that he would be asking him for a document confirming his Aboriginality. It is undisputed that following the incident of 31 October 2023, there was no formal request by Mr Leha or BlaQ that Mr Sturgiss produce documentation confirming he is Aboriginal. Mr Sturgiss has not been requested by Mr Leha or BlaQ to comply with such a requirement.

129. The Tribunal has not found that Mr Leha said that he would asking the Board of BlaQ to request that Mr Sturgiss provide a document confirming he is Aboriginal. Even if Mr Leha said this, it is a matter he would have to raise with the Board, and the Board would have to agree to that request being made. There was no evidence before the Tribunal that Mr Leha raised this issue as an item for consideration by the Board of BlaQ and sought that the Board make a request of Mr Sturgiss.

130. Mr Sturgiss has therefore not substantiated that Mr Leha engaged in an act of racial discrimination because the statement by Mr Leha of an intention to request of Mr Sturgiss a document confirming his Aboriginality was not an unreasonable requirement in fact, and did not eventuate into any actual treatment, segregation or an imposed condition of Mr Sturgiss’ employment.

Does the s 14(d) exception apply?

131. Mr Leha submits that Mr Sturgiss’ submissions about racial discrimination should be rendered nugatory pursuant to the exception to unlawful discrimination contained in s 14(2) of the ADA. Mr Leha submits that BlaQ’s services to and support of the Indigenous and LGBTQI+SB community is discernibly an operation that is most effectively provided by other Indigenous Australians given their shared background and sense of community. Mr Leha submits that his discussion with Mr Sturgiss concerning his Indigenous heritage and its connection and relevance to his employment are clearly permissible under the scheme of the ADA.

132. While the role of CEO is not an Aboriginal identified role, as noted in the BlaQ CEO position description, “Applications from Aboriginal and Torres Strait Islander people are strongly encouraged – Aboriginality is a genuine occupational requirement, and documentation may be required to demonstrate”. The position description does seem to require that if Mr Sturgiss identifies as Aboriginal, then BlaQ can require that documentation be produced to demonstrate this.

133. Further, the Rule Book of BlaQ, which was in evidence before the Tribunal, states that at all times, at least 51 per cent of BlaQ’s members must be Aboriginal or Torres Strait Islander people. There are four main categories of members, one of which are individuals identifying as Aboriginal and Torres Strait Islanders people recognised by the community with a demonstrated support for the aims and objectives of BlaQ.

134. However, as the Tribunal has not found that Mr Leha breached the racial discrimination provisions in the ADA, it is not necessary for the Tribunal to decide whether the exception in s 14(d) of the ADA permits such a request.

Conclusion

135. Mr Sturgiss has not substantiated the complaint against Mr Leha of racial discrimination.

Issue 3: Is BlaQ liable for Mr Leha’s actions if those actions are found to constitute racial vilification and/or racial discrimination?

136. Section 53(1) of the ADA provides that an act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

137. Mr Leha is employed by BlaQ as the Chair of the Blaq Board.

138. As the Tribunal has not found that Mr Leha contravened the ADA, either by an act of racial vilification or an act of racial discrimination as alleged by Mr Sturgiss, s 53(1) of the ADA does not apply.

139. Mr Sturgiss has not substantiated his complaint against BlaQ in terms of BlaQ’s liability for any contraventions of the ADA by Mr Leha.

Issue 4: Did BlaQ engage in racial discrimination against Mr Sturgiss after the incident of 31 October 2023, by placing him on gardening leave?

Consideration

140. Mr Sturgiss submits that over and above any relationship created by s 53 of the ADA, BlaQ showed differential treatment to Mr Sturgiss on the basis of the apparent belief held by Mr Leha (a member of the Board of BlaQ) that Mr Sturgiss was not Indigenous and had to be treated differently in order to continue his employment. The conduct complained of is the decision by BlaQ to place Mr Sturgiss on gardening leave on 2 November 2023.

141. The Appeal Panel in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 considered what ‘on the grounds’ meant in a complaint of race discrimination and victimisation under the ADA. At [36]-[37] the Appeal Panel stated that for complaints of discrimination, for that to be the case, the reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.

142. Mr Sturgiss has not substantiated his complaint that Mr Leha engaged in an act of racial discrimination by telling Mr Sturgiss that he would be asking him for a document confirming his Aboriginality.

143. As noted above, on 2 November 2023, Dr Corrinne Sullivan met with Mr Sturgiss. The record of this meeting was included in the investigation report. It was noted in this record that:

1. Mr Sturgiss said that he had made an appointment with a doctor on 1 November 2023 and the first available WorkCover appointment was 3 November 2023. Mr Sturgiss said that he no longer felt safe at BlaQ and could no longer work at BlaQ and would like to go on leave. Mr Sturgiss said that he would seek from the Board to be paid out to vacate his position or otherwise commence legal action.

2. The meeting ended with Mr Sturgiss being provided a letter advising him that he was on gardening leave effective from 2 November 2023 and being advised that the period of paid leave was to alleviate the work pressures that he had expressed.

144. Mr Sturgiss was placed on gardening leave between 2 November 2023 and 30 November 2023. Mr Sturgiss, by 3 November 2023, had submitted a WorkCover application and remains on WorkCover payments.

145. There was no mention in the record of this meeting between Mr Sturgiss and Dr Corrinne Sullivan of any requirement for Mr Sturgiss to confirm he was Aboriginal, or this issue being related to his ongoing employment. It was Mr Sturgiss who first expressed wanting to go on leave and be paid out to vacate his position.

146. The purpose of the gardening leave was set out in the letter dated 2 November 2023, to Mr Sturgiss from Dr Corrinne Sullivan, which was in the evidence before the Tribunal. The letter stated the following:

“Due to the severity of your complaint sent to the BlaQ Board on 1 November 2023, we are requesting that you take 4 weeks gardening leave whilst the Board launch a formal investigation into your complaint. The intention of the gardening leave is to alleviate any work pressures you may feel, and ensure minimal reputational risk is caused to BlaQ during this investigation.”

147. Further, in BlaQ’s response to Anti-Discrimination NSW of 7 June 2024, it was noted that the decision to put Mr Sturgiss on gardening leave and restrict his access to confidential matters of BlaQ was because Mr Sturgiss had “once again breached the Respondent’s Rule Book and had demonstrated a repeated lack of good governance for the organisation as the CEO”.

148. Whilst on gardening leave, effective as of 2 November 2023, Mr Sturgiss received full pay and employment benefits.

149. The Tribunal is satisfied that Mr Sturgiss was placed on gardening leave for his own benefit in response to the complaint against Mr Leha he had submitted on 31 October 2023, and to ensure the matter was appropriately and independently investigated.

Conclusion

150. The Tribunal is not satisfied that BlaQ discriminated against Mr Sturgiss on the ground of his race, because the real, genuine or true reason for being placed on gardening leave was not his race.

151. Mr Sturgiss has not substantiated his complaint against BlaQ of racial discrimination.

Issue 5: Did BlaQ engage in an act of victimisation of Mr Sturgiss, by placing him on gardening leave, as a result of the Mr Sturgiss’ complaint or proceedings under the ADA?

Law - victimisation

152. According to s 50(1) of the ADA, it is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

1. brought proceedings against the discriminator or any other person under the ADA,

2. given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the ADA,

3. alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of the ADA,

4. otherwise done anything under or by reference to the ADA in relation to the discriminator or any other person,

5. or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

153. Section 50(1) of the ADA does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith (ADA, s 50(2)).

154. In Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41], the Tribunal considered what the word ‘detriment’ meant in the context of a complaint of victimisation. The Tribunal stated that the detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment”.

155. The Tribunal in Sivananthan at [40] referred to the formal Equal Opportunity Tribunal’s statement in Shaikh v Commissioner, NSW Fire Brigades (1996) EPC 92-808 at page 76, 986: 

The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.

156. If the complainant was subjected to a relevant detriment, the next question is whether the complainant has done one of the things provided for in s 50(1) of the ADA and whether such conduct “was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment”: Nicholls & Nicholls, at [37].

157. The clear legislative purpose of s 50 of the ADA is to ensure that victims of discrimination shall not be deterred from doing any of the acts set out in section 50(1)(a) - (d) by the fear that they may be further victimised: Bogie v The University of Western Sydney (1990) EOC 92 - 313 at 78, 145.

Consideration

158. Mr Sturgiss submits that BlaQ caused him to be suspended from work, removed his access to work and his company property, shortly after Mr Sturgiss complained about what occurred on 31 October 2023. Mr Sturgiss submits that he not only suffered from the effects of the suspension but experienced mental harm that resulted in him having to be treated for it.

159. Mr Sturgiss has done one of the things referred to in s 50(1) of the ADA, by making his complaint on 31 October 2023 against Mr Leha, and then subsequently lodging a complaint with Anti-Discrimination NSW and requesting a referral of the complaint to the Tribunal.

160. As outlined above under Issue 4, Mr Sturgiss had first requested to go on leave, was intending to make a WorkCover application, and had spoken to Dr Corrinne Sullivan on 2 November 2023 about wanting to be paid out to vacate his position as CEO of BlaQ. The Tribunal has found that the reason that BlaQ placed Mr Sturgiss on gardening leave, at full pay and employee benefits, was to be able to properly investigate Mr Strugiss’s complaint (which they did as evidenced in the investigation report) and alleviate any work pressures he may be feeling. That is, it was for Mr Sturgiss’ benefit, not his detriment.

161. BlaQ also continued to engage with Mr Sturgiss in relation to his fitness to return to work. BlaQ submits that in light of BlaQ’s repeated attempts over more than two months to obtain sufficient evidence from Mr Sturgiss that he was fit to perform the inherent requirements of his role (in contradiction of the independent medical examination), any argument that Mr Sturgiss was victimised by the Respondents cannot succeed as the facts do not support such a conclusion.

162. The Tribunal does not view BlaQ’s action in placing Mr Sturgiss on gardening leave as a retaliatory act because he had made a complaint of racial discrimination or racial vilification against Mr Leha and BlaQ,

163. The Tribunal is therefore not satisfied that Mr Sturgiss has suffered a detriment caused by BlaQ as a result of making a complaint under the ADA.

Conclusion

164. The Tribunal is not satisfied that Mr Sturgiss has suffered a detriment at the hands of BlaQ for making a complaint.

165. Mr Sturgiss has therefore not substantiated the complaint of victimisation against BlaQ.

Conclusion

166. For the reasons set out above, Mr Sturgiss has not substantiated any part of his complaint under the ADA, against BlaQ and Mr Leha. That is, Mr Sturgiss has not substantiated that:

1. Mr Leha, in the incident on 31 October 2023, engaged in racial vilification against Mr Sturgiss.

2. Mr Leha, in the incident of 31 October 2023, engaged in racial discrimination against Mr Sturgiss.

3. BlaQ is liable for Mr Leha’s actions.

4. BlaQ engaged in racial discrimination against Mr Sturgiss in the actions taken after the incident of 31 October 2023, by placing him on gardening leave.

5. BlaQ engaged in an act of victimisation of Mr Sturgiss, by placing him on gardening leave, as a result of the Mr Sturgiss’ complaint or proceedings under the ADA.

167. The Tribunal has therefore decided to dismiss the whole of the complaint pursuant to s 108(1)(a) of the ADA.

Order

168. Pursuant to s 103(1) of the Anti-Discrimination Act 1997, the Tribunal amends the Applicant’s complaint such that it comprises of the following complaints:

1. Complaint against the Second Respondent for racial discrimination in employment for the conduct and events alleged to have occurred on 31 October 2023

2. Complaint against the Second Respondent for racial vilification for the conduct and events alleged to have occurred on 31 October 2023.

3. Liability of the First Respondent as employer and/or agent of the Second Respondent if the complaints against the Second Respondent in (a) and (b) are substantiated.

4. Complaint against the First Respondent for racial discrimination in employment for the conduct and events alleged to have occurred from 31 October 2023 to 11 April 2024.

5. Complaint against the First Respondent for victimisation as a result of the Applicant’s complaint/proceedings under the Anti-Discrimination Act 1997.

169. Pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 September 2025