Aboriginal and Torres Strait Islander case studies

Summary
An Aboriginal man was awarded compensation in respect of comments made by a co-worker behind his back and a botched apology. The co-worker described the man as a black fella and on one occasion she was also refusing to swap a shift because it would lead to her working with the man.

The tribunal said the racially offensive comment about a colleague who was not present was sufficient in itself to amount to less favourable treatment. The refusal to swap shifts had the added detriment of depriving the man of benefits associated with a workplace where swapping shifts was common and potentially causing other workers to be resentful of him.

The co-worker was directed to apologise to the man, but during the telephone apology she made it worse by making further inappropriate comments and effectively telling the man he needed to move on. The tribunal said the failure to apologise appropriately also constituted less favourable treatment.

The man was awarded a total amount of $76,704.81, of which $40,000 was for general damages. The general damages had been discounted because of other factors which contributed to the man's depressive illness.

The award of damages was upheld on appeal.

Barney v State of Queensland & Anor [2012] QCAT 695 (1 November 2012) and
State of Queensland & Anor v Barney [2013] QCATA 104 (1 May 2013).

Summary
A group of six Aboriginal people attended a nightclub in a casino on the Gold Coast. One of the men was ejected from the nightclub after a female patron complained he had groped her. There was no real enquiry into the allegation, and the tribunal found that the man had been ejected because of his race.

Other members of the group were then refused service at two of the bars when they tried to order drinks, including soft drinks. The group was then encircled by a number of security officers. One of the women was told she should go downstairs and see the man who had been ejected, and after she went downstairs, she was not allowed to re-enter the nightclub. The others were then encouraged to go downstairs and they too were refused re-entry. As they left, security officers said " piss off you mob ." The tribunal found the rest of the group had been ejected, rather than leaving of their own accord.

The tribunal accepted that the members of the group were not intoxicated and their behavior was no different to other patrons in the nightclub. Records showed that security had been called because the nightclub wanted to eject a group of Aboriginal people. The tribunal found that the only reasonable explanation for the incidents was the group's race, and their relationship to each other.

The tribunal said the discrimination was serious and blatant, and occurred over a period of time. An enjoyable and special evening had turned into a most upsetting and unfortunate encounter. It was intimidating and embarrassing for the six people, and they had been deeply hurt over the treatment they had to suffer. The tribunal ordered the respondent to pay compensation of $10,000 plus interest of $1,375 to each of the six people in the group.

Wharton v Conrad International Hotel Corporation [2000] QADT 18  (8 December 2000)

Summary
An Aboriginal woman rang a man in response to an advertisement in the local newspaper of a unit available to rent. It was after 6pm on a Friday evening so they arranged to meet at the unit on Monday afternoon. When the man arrived at the unit, he told the woman that since her phone call the unit had been rented to another person.

Because the woman didn't believe the man, she arranged for a relative to ring and enquire about the availability of the advertised unit. The man informed the relative that the unit was still available.

The man claimed another person had agreed to rent the unit earlier in the day before he met the woman. However, the other person failed to return with the bond and rent the following day as arranged, so the unit had been put back on the market by the time the woman's relative rang. He claimed the phone call from the relative was 5 days after he met the woman.

The tribunal found that phone call by the relative happened on the same day the woman met the man, and that the man told the woman the unit was not available when he realised she was Aboriginal. There was no reliable or credible evidence that the unit was not available when the woman met the man and had become available later that day. The tribunal found the woman had been treated less favourably because of her race, and awarded $9,000 in damages plus costs.

D v G and O Pty Ltd [1997] QADT 8  (12 February 1997)

Summary
An Aboriginal woman telephoned in response to a newspaper advertisement for a house to rent. She spoke with another woman, and an agreement was made to rent the house and for the woman to inspect it later that day. The other woman was the owner's wife.

When the woman and her mother (also Aboriginal) went to inspect the house as arranged, the owner's wife indicated the house had been rented to someone else, and said the house was too good for you . She said a house down the road was more suitable.

Later that day, the woman's sister-in-law rang the advertised number enquiring about the house to rent, and she was told the house was still available. That evening, the woman's husband also rang and spoke to the owner's daughter, who told him her father didn't want to rent to blacks , even though the owner's daughter knew the husband was white .

The tribunal accepted that an agreement to rent the house had been reached between the woman and the owner's wife over the telephone, and that the owner's wife had withdrawn from the agreement when she saw that the woman was an Aborigine with dark skin. The tribunal found the owner's wife was acting as the owner's agent, with both actual and ostensible authority. This meant the owner was responsible for the discriminatory conduct of his wife.

The tribunal found the refusal to rent caused the woman to remain in overcrowded emergency housing with her husband and six children, for a number of months. Being told the house was too good for her, and that a sub-standard house down the road was more suitable for her, was deeply hurtful to the woman. She experienced continuing pain and humiliation from the refusal to rent, and had adopted the strategy of having her husband inspect houses for rent to avoid again being denied housing because of her Aboriginality.

In awarding damages of $18,000, the tribunal took into consideration the blatant nature of the original refusal, and that the woman's offence, embarrassment and humiliation was added to by the way the proceedings were conducted. The owner was also ordered to pay the woman's costs.

Lynton v Maugeri [1995] QADT 3  (4 May 1995)

Summary
The complainant, a First Nations woman, said that she was asked to leave her local supermarket during COVID-19 because she was not wearing a mask. Her complaint alleged that masks were being provided to other customers of the store who were not of First Nations descent, but she was not offered one, and that she felt this amounted to racial discrimination.

The store disputed this and said that the complainant was treated the same as others in the store who were not wearing a mask, but agreed to provide the complainant with a written acknowledgement and statement of regret, to review their policies and training around cultural awareness and diversity, including review of their Reconciliation Action Plan, and to provide the complainant with vouchers she could use in-store.

Summary
A leader in the Aboriginal community and his family were camping, practicing their culture and performing traditional ceremonies on a pastoral lease area. Police officers approached the group and asked them to leave, stating that an international mining company occupying the land had claimed they were trespassing . The site was the subject of an Indigenous Land Use Agreement but the family opposed the agreement and the mine, saying that Aboriginal people had been exercising their culture by fishing and hunting and performing ceremonies for 40,000 years.

Cultural rights of Aboriginal peoples and Torres Strait Islander peoples are specifically protected by the Human Rights Act , including the right to maintain their distinctive spiritual, material and economic relationship with the land and waters with which they hold a connection.

The family told the police that they had received expert advice that they could lawfully exercise their cultural rights and responsibilities. However, the police required the group to pack up their equipment and leave within an hour. The family says that this caused grief and trauma.

The Queensland Police Service agreed to provide a statement of regret which was able to be shared publicly. The statement acknowledged that the events caused embarrassment, hurt and humiliation for the complainant and his extended family, that there are complex legal issues and cultural sensitivities, and that the QPS will commit to take into account the issues in the complaint in future responses.

Summary
The complainant identified as Aboriginal and South Sea Islander and was a former employee of a non-profit organisation providing services to the Aboriginal and Torres Strait Islander community.

The complainant alleged he had been subjected to racist comments by his supervisor. The complainant chose to pursue his complaint with the organisation as the supervisor had already left the organisation. He was of the view that the organisation should have included questions focussed on cultural awareness and sensitivity when hiring staff to avoid the racist treatment he had experienced, and to ensure appropriate hiring.

At conciliation the parties discussed broader systemic issues around the organisation’s hiring process as well the professional supports available for employees who identified as Aboriginal and/or Torres Strait Islander.

The agreement included:

• an undertaking to ensure all Aboriginal and Torres Strait Islander employees had cultural supervision available and they were aware of it;
• a review of the hiring processes for relevant roles including:
  • interview questions had a sufficient cultural component; and
  • panel members included an Aboriginal or Torres Strait Islander person who is a respected member of the local community.
• $5,000 financial settlement.

Summary
A Torres Strait Islander man alleged he was told a property was taken when he visited a real estate office. He phoned his sister from the car to check its availability. When she phoned back to say the house was still vacant, he asked her to check a second time. However, when he immediately re-entered the real estate office the property was still unavailable.

He was very upset as he had an exemplary rental record but thought he was not even considered because of his race. The respondents were unable to field a satisfactory explanation. The matter settled for $3,000.

Summary
An Aboriginal man lodged a complaint against his employer and three fellow workers. The complainant overheard a conversation in their meal break that was extremely derogatory to Aboriginal women. Racist comments about sporting teams were also made in his presence. The man complained to his employer.

Because the complainant felt he could no longer work with the three men, the employer moved him to a different location. The position to which he was moved became redundant shortly after he arrived and the employer would not find him an alternative position. The employer denied any liability.

At the conciliation conference the employer admitted that the workers who had made the comments had not been made aware of the company's discrimination policies. They agreed to pay the complainant compensation and provide an apology as well as instigate a better induction process. The employees offered to provide a written apology.

Summary: An Aboriginal woman lodged a complaint against the Chair of a local organisation. The details of the complaint were of a very sensitive nature. The respondent denied all of the allegations. The lodgement of the complaint caused disquiet in the small community where the respondent, and many of the complainant's family lived. The parties declined to participate in a face-to-face conciliation conference.

The Commission staff conducted a shuttle conciliation by travelling back and forth between the respondent's community and the town where the complainant lived, and successfully assisted the parties to reach agreement, the terms of which remain confidential. The case was a good example of the Commission's flexibility in altering its usual process to suit the social and cultural circumstances of the parties.

Summary
A group of Aboriginal women alleged differential treatment by the owner of a sporting centre. The complainants formed a group to partake in a sporting activity arranged by the sporing centre. A few weeks into the program the respondent approached one of the women to state that an incident occurred in which one of the complainants was alleged to have been rude to another non-Aboriginal patron. The respondent told the group that because of this incident they all would not be allowed back into the sporting centre, even though one of the group had not been present on the day of the incident.

The complainant, who was alleged to have been rude to the non-Aboriginal patron, denied the allegation and asked the respondent to arrange for her to speak to the non-Aboriginal patron to sort out the issue. The respondent would not listen to the complainant's explanation and the complainants believed that earlier requests for medical certificates pointed to race discrimination, particularly as non-Aboriginal groups did not face the same requests.

Following a conciliation conference the respondent agreed to provide a written apology to each complainant acknowledging the complainants' hurt and humiliation caused by the respondent's decision to exclude them from the program. The respondent agreed to provide an individual sport program free of charge to each of the women.

Summary
An Aboriginal woman with considerable hotel/hospitality experience was interviewed for a full-time receptionist position with a local hotel. She had been previously employed as a receptionist in a five star hotel at a resort, and had applied for a position at a lesser rated motel because she wanted to move back to the city.

The complainant became suspicious about the interview, as she believed she had all the experience and skills necessary to do the job, and further was told by her previous employer that he had provided a glowing referee report to the interviewer of her work performance to date. The woman became concerned when, after being informed that she was unsuccessful for the position, she saw the very same position advertised again a week later.

She contacted the hotel for an explanation, but could not get one. The woman then decided to lodge a complaint of discrimination on the ground of race, as she alleged the interviewer displayed surprise that she was Aboriginal when she turned up for the interview for the position.

In conciliation the respondent paid her compensation of $1,000 for hurt and humiliation, provided a written apology and agreed to include a reference to Equal Employment Opportunity (EEO) in advertising and to incorporate EEO in future vacancy selections and interviewing.