Broadcasting Services Act 1992 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Racial Discrimination Act 1975 (Cth), ss.9, 18, 18A

Associations Incorporation Act 1984 (NSW)

International Convention on the Elimination of All Forms of Racial Discrimination 1966

Alexander v Home Office [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122

Australian Medical Council v Wilson (1996) 68 FCR 46

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78

Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20

Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70

Gilroy and Angelov [2000] FCA 1775; (2000) 181 ALR 57

Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217

IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1

Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church [2007] FCA 55

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

McGlade v Lightfoot (2002) 124 FCR 106; 73 ALD 385; [2002] FCA 1457; EOC 93 252

Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 499

Payne v Parker [1976] 1 NSWLR 191

Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537

Reg. v Birmingham City Council; Ex Parte Equal Opportunities Commission [1989] AC 1155

Silberberg v The Builders Collective of Australia Inc (2007) 164 FCR 475; 98 ALD 54; [2007] FCA 1512; EOC 93 478

Trindall v NSW Commissioner for Police [2005] FMCA 2

Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287; (1998) 91 FCR 47

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

E. Atkins, "`Domina et Regina Virtutum': Justice and Societas in De Officiis," (1990) 35 Phronesis 258-289

I. Brownlie, Principles of Public International Law (Sixth Edition) (Oxford: Oxford University Press, 2003)

H. Charlesworth, Writing in Rights: Australia and the Protection of Human Rights, New College Lectures (Sydney: UNSW Press, 2002)

Cicero, De Legibus (On the Laws), De Officiis (On Duties), and De Re Publica (On the Commonwealth)

Cross on Evidence , Seventh Australian Edition (J.D. Heydon) (Sydney: Butterworths - LexisNexis, 2004)

S. Curry, "Indigenous Rights_,_" in Protecting Human Rights: Instruments and Institutions, (eds. T. Campbell, J. Goldsworthy & A. Stone) (Oxford: Oxford University Press, 2003)

A. Devereaux, Australia and the Birth of the International Bill of Human Rights 1946-1966, (Sydney: The Federation Press, 2005)

The Hon Murray Gleeson, AC, The Rule of Law and the Constitution, (Sydney: ABC Books, 2000)

D. Kinley (ed.), Human Rights in Australian Law, (Sydney: The Federation Press, 1998) pp.92-119

N. Lerner_, The UN Convention on the Elimination of all Forms of Racial Discrimination,_ (Sijthoff & Noordhoff, Alphen aan den Rijn, 1980)

T. Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," (1985) 79 American Journal of International Law 283

J. Neilsen & G. Martin, "Indigenous Australian peoples and human rights," in

E. Schwelb, "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996

QUEANBEYAN COMMUNITY RADIO STATION QBN-FM INCORPORATED

(1) The Court declares that the action of the Respondent on 31st July 2006 in refusing the membership applications of the Applicants constituted an act of unlawful discrimination contrary to s.9 of the Racial Discrimination Act 1975.

(2) The respondent is ordered not to repeat or continue such unlawful conduct by refusing membership to the Applicants upon racial or other unlawful discrimination grounds.

(3) Upon payment by the applicants of the applicable membership fee, such fee being the fee for a single member in respect of each applicant, the Applicants be admitted forthwith as members of the Respondent.

(4) The Respondent to pay to each of the Applicants the sum of $6,000.00 by way of general damages.

(5) The Respondent to pay the Applicants' costs of and incidental to the Application.

QUEANBEYAN COMMUNITY RADIO STATION QBN-FM INCORPORATED

(1) Introduction and Background [ 1] - [ 9]

(2) Procedural History [10] - [13]

(3) The Complaint [14] - [16]

(4) Commonwealth Statutory Provisions

• (a) Racial Discrimination Act 1975 [17] - [19]

• (b) Broadcasting Services Act 1992 [20]

• (c) Evidence Act 1995 [21]

(5) Judicial Principles [22] - [28]

(6) The Evidence

• (a) Ms Pojdynec [29] - [50]

• (b) Mr Coffey [51] - [58]

• (c) Mr Brennan [59] - [65]

• (d) Mr Selmes [66] - [69]

• (e) Mr Leonard [70] - [74]

• (f) Ms A House [75] - [80]

• (g) Ms M House [81] - [89]

(7) Jones v Dunkel Considerations [90] - [98]

(8) Principles of Evidence [99] - [104]

(9) Evidentiary Findings [105] - [111]

(10) Remedies [112] - [116]

(11) Damages [117] - [127]

1. Gleeson CJ delivered the Boyer Lectures for 2000 under the general title "The Rule of Law and the Constitution." They were subsequently published under that name.[1] In the first of six lectures, his Honour referred to the fact that "law restrains and civilises power." A little later he said that the "rule of law is meant to be a safeguard, not a menace."[2] Such principles can be traced to and are congruent with basic, classical notions of the role of law to protect and to educate the community.[3] In my view, in addition to the application of relevant statutory and other jurisprudential precepts, these fundamental principles are especially important in cases where there are claims of breach of fundamental human rights, such as here, where there is a claim of racial discrimination.
2. One example of the classical tradition will suffice to show that the objects of law include its importance to protect and educate.

In De Officiis, Cicero states [I.43.152-45.161]: * ... duties prescribed by justice must be given precedence over the pursuit of knowledge and the duties imposed by it; for the former concern the welfare of our fellow citizens; and nothing should be more sacred than that.[4] 3. Such sentiments and principles, in my view, are captured (obviously in rather different language) in the various international instruments to which Australia is a signatory, such as the International Covenant on the Elimination of All Forms of Racial Discrimination 1966,[5] and which the Australian Government has more formally embraced in enacting the Racial Discrimination Act 1975. One of the preambular parts of that Act states: * AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention... 4. These proceedings seek relief under the Racial Discrimination Act 1975 (Cth) ("the Act").[6] The applicants, Matilda and Antoinette House, who are related by marriage (Mother-in-law and daughter-in-law respectively), are Aboriginal women. They complain that their applications for membership of a local community radio station were rejected on the grounds of their Aboriginality.[7] 5. The Respondent is incorporated under the Associations Incorporation Act 1984 (NSW) and conducts a community radio pursuant to a licence granted under the Broadcasting Services Act 1992 (Cth). 6. On 26th June 2006, the applicants lodged an application for membership of the respondent. 7. The applicants' joint application for membership of the radio station is dated 19th June 2006. It is annexure "A" to Antoinette House's affidavit of 27th February 2007. Mr Ron Gardner nominated both applicants, and Mr Brian Boyes seconded them. 8. The application notes different addresses of each applicant, which are respectively in Canberra and Queanbeyan. 9. By letter dated 2nd August 2006, the Honorary Secretary of the radio station, Lorraine Pojdynec, advised the applicants that their application for membership had been refused by the Board of the station at its meeting on 31st July 2006. The Board meeting of 31st July will be seen in due course as the central meeting and evidentiary fulcrum around which the entire complaint and litigation turns. The letter of 2nd August gave as the reason for the rejection that "it was deemed not to be a Family Membership in view of the addresses given." Not insignificantly, and somewhat surprisingly in the circumstances, the letter was addressed to both applicants at the one address, that of Matilda House at her residence in the Canberra suburb of Pearce.

1. A complaint was lodged with the Human Rights and Equal Opportunity Commission on behalf of the applicants on 19th October 2006. By letter dated 30th January 2007, the delegate of the President of the Human Rights and Equal Opportunity Commission ("the HREOC"), Ms Karen Toohey, notified Mr Brian Boyes, who had lodged the complaint on behalf of the current applicants, that the complaint had been terminated because there was no prospect of the matter being settled by conciliation.
2. On 27th February 2007, the applicants filed an application in this Court seeking:
   1. a declaration that the Respondent Community Radio Station's refusal of the applicants' membership application (dated 19th June 2006) "constituted unlawful discrimination on the ground of race";
   2. an order directing the respondent not to repeat or to continue "such unlawful discrimination";
   3. an order requiring the respondent to approve the membership applications of the applicants;
   4. an order that the respondent "compensate the applicants for the loss and damage they have suffered by way of an order for damages";
   5. an order requiring the respondent to apologise to the applicants for the unlawful discrimination;[8]
   6. costs.
3. The proceedings were heard by me over a series of three days: 2nd October and 2nd November 2007, and 20th March 2008.
4. Both sides in the litigation provided written submissions. Admittedly in the case of the applicants they were substantial; in the case of the respondents, they were quite modest. At the request of the Respondent's solicitor, Mr Bevan (who also conducted the trial on its behalf), the matter was re-listed on 9th May 2008, ostensibly to allow oral submissions, a course I had indicated at the close of the hearing that I would allow if necessary. Mr Thomas, Counsel for the applicants, attended on that day. There was no appearance for the respondent. Mr Bevan made a further inquiry later that same month about re-listing the matter. In the event, that further application did not proceed, but of course, and unfortunately, as with the initial request to re-list on 9th May, it had the effect of delaying the matter somewhat.

1. The facts, relevant history and competing contentions are set out in the evidence of the principal witnesses, being (for the applicants)

Ms Lorraine Pojdynec, formerly the Honorary Secretary of the Respondent; (for the respondent) Mr Ron Coffey, then Board member now President of the respondent, and Mr Wayne Brennan, honorary station manager. Mr Selmes, formerly the President of the respondent, also gave evidence on behalf of the respondent. 2. Matilda and Antoinette House also gave evidence, as did Mr Brian Leonard on their behalf. Their evidence was secondary or ancillary to the three persons (minus Mr Selmes) listed in the previous paragraph. Save for one matter, I will deal with it after the more detailed examination of the evidence of Messrs Pojdynec, Coffey and Brennan. 3. Annexure "I" to Ms Antoinette House's affidavit of 27th February 2007 is a copy of the lead article of The Queanbeyan Age newspaper for 27th October 2006. The heading of the article reads: "Racism claim rocks station." The article refers to and reproduces part of the draft minutes of the Board meeting of 31st July 2006. The newspaper confirmed that a copy of the draft Board minutes, detailed below, had been leaked to it. While there were claims made as to who leaked the draft Minutes, claims that were denied, the leak itself was neither explored at any length in the course of the trial nor otherwise explained.

Racial Discrimination Act; Broadcasting Services Act; Evidence Act

1. Section 9(1) of the Racial Discrimination Act provides:[9]
   • It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
2. Section 18 of the Racial Discrimination Act provides:
   • Where:
     • (a) an act is done for 2 or more reasons; and
       • (b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
   • then, for the purposes of this Part, the act is taken to be done for that reason.
3. Section 18A of the Racial Discrimination Act deals with "vicarious liability."[10] It provides:
   • (1) Subject to subsection (2), if:
     • (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
     • (b) the act would be unlawful under this Part if it were done by that person;
   • this Act applies in relation to that person as if that person had also done the act.
4. Clause 9(2) "Schedule 2: Standard Conditions: Part V - Community broadcast licences", of the Broadcasting Services Act 1992, provides:
   • (2) Each community broadcasting licence is also subject to the
   • following conditions:
     • (a) the licensee will remain a suitable licensee;
     • (b) the licensee will continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed;
     • (c) the licensee will encourage members of the community that it serves to participate in:
       • (i) the operations of the licensee in providing the service orservices; and
       • (ii) the selection and provision of programs under the licence;
     • (d) the licensee will provide the service or services for community purposes;
     • (e) the licensee will not operate the service or services for profit or as part of a profit-making enterprise.
5. Section 140 of the Evidence Act 1995 provides:
   • Civil proceedings: standard of proof
   • (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
   • (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
     • (a) the nature of the cause of action or defence; and
     • (b) the nature of the subject-matter of the proceeding; and
   • (c) the gravity of the matters alleged.

1. Four judgments of the Federal Court are immediately relevant to the proper approach to, and disposal of, the claims made by the applicants. Chronologically, they are: Australian Medical Council v Wilson, Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission, Baird v Queensland, and Qantas Airways Limited v Gama.[11] It is as well to set out immediately the sections from those decisions that are the jurisprudential touchstones and from which the relevant principles are to be gleaned for the current matters before this Court.
2. In Australian Medical Council v Wilson, Sackville J said: "... the preponderance of opinion favours the view that s.9(1) does not require an intention or motive to engage in what can be described as discriminatory conduct."[12]
3. In Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission, Weinberg J said:[13]
   • What is established by the authorities is that anti-discrimination legislation should be regarded as beneficial and remedial legislation. It should, therefore, be given a liberal construction. I am conscious of the fact that "the task remains one of statutory construction" and a court "is not at liberty" to give such legislation "a construction that is unreasonable or unnatural" - see IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J. See also Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 88 per Davies J. There is, however, nothing "unreasonable or unnatural", in my view, in treating as encompassed within the phrase "based on" the meaning of "by reference to", rather than the more limited meaning of "by reason of".
   • As I indicated earlier, it is obvious that the phrase "based on" is capable of bearing different shades of meaning. It should not, in my opinion, be read in a manner which would tend to defeat the objectives which underlie the statute. Those objectives are to be ascertained from its nature, its scope, and its terms. It seems to me, with respect, that Kirby J expressed the relevant principles correctly in IW v City of Perth at 52:
   • "Those who are alleged to have acted in an unlawful and discriminatory manner are entitled to defend themselves and to raise every available legal argument, as the respondents have done here. That is what the rule of law permits. But unless courts are willing to give such legislation the beneficial construction often talked about, it seems likely that the legislation will continue to misfire. That risk may be greatest when those who invoke the legislation comprise individuals or groups in minorities most in need of protection but least likely to strike a sympathetic chord."
   • Similar considerations seem to me to underlie the reasoning of Deane and Gaudron JJ in Banovic where, at 176, their Honours rejected the contention that there could be no liability under the Anti-Discrimination Act (NSW) without proof of an intent on the part of the defendant to discriminate, or at least, proof that this was the motive which lay behind the impugned conduct. Dawson J at 184 agreed that the relevant section should not be applied subjectively.
   • I am fortified in my view that the phrase "based on" in s 9(1) of the Act should be construed as encompassing the broader, non-necessarily causative, relationship expressed in the phrase "by reference to" because the words "based on" are taken directly from the definition of "racial discrimination" which appears in Art 1.1 of the Convention, and not from any other anti-discrimination statute. What Parliament did when it enacted the subsection was to convert that language into part of one of the elements of a designated form of unlawful conduct. It did so by adding to that definition what is, in substance, an actus reus: "It is unlawful for a person to do any act involving" what is defined as "racial discrimination". To combine the type of language typically used in a treaty (or other international instrument) which may, itself, be subject to special rules of interpretation under the Vienna Convention on the Law of Treaties, with words which are intended to signify the actus reus of unlawful conduct, is not conducive to drafting in clear and unambiguous language the elements of what is, in substance, a statutory offence.
4. In Baird v Queensland, Allsop J said:[14]
   • In giving effect to the Convention, the RD Act should be interpreted broadly and beneficially in accordance with the fundamental purposes of the Convention and in particular with the purpose that is emphasised in the preamble: the necessity of eliminating racial discrimination in all its forms and manifestations. As Black CJ said in Australian Medical Council v Wilson (1996) 68 FCR 46 at 48:
   • "In this context the concept used in s 9(1) and in s 9(1A) of impairing the enjoyment of a right on an equal footing must be taken to be a broad one that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination and the other like types of discrimination that the Act aims to eliminate."
   • A broad interpretation of s 9(1) apt to encompass all kinds of acts of racial discrimination is to be preferred in furtherance of the purpose of eliminating racial discrimination in all its forms and manifestations: cf Lerner N, The UN Convention on the Elimination of all Forms of Racial Discrimination, (Sijthoff & Noordhoff, Alphen aan den Rijn, 1980) p 28. Further, it is important to treat the terms of s 9(1) as comprising a composite group of concepts directed to the nature of the act in question, what the act involved, whether the act involved a distinction etc based on race and whether it had the relevant purpose or effect: see Schwelb, E "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996 at 1001.
   • Nowhere in the broad terms of s 9(1) is there any indication that a necessary element for the engagement of the section is the existence of an obligation to do the act. To read into s 9(1) such an element would infuse a legalism and formality antithetical to the broad aims of the section and the Convention. The purpose of the Convention, which can be taken to be the purpose of the RD Act, was the elimination of racial discrimination in all its forms and manifestations - not merely as manifested by people who are obliged to act in a particular way. The RD Act and the Convention were directed to the real world. To achieve the broad purpose referred to requires broad and elastic terminology. As Gibbs J said in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 86:
5. In Qantas Airways Limited v Gama, the Full Court (French & Jacobson JJ; Branson J agreeing[15]) said:[16]
   • To be unlawful under s 9 it is necessary that an act involve "a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin ...". The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person's race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person's race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then that linkage establishes both the distinction and its basis upon race. That was the present case.
   • The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person's recognition, enjoyment or exercise on an equal footing of any "human right or fundamental freedom ...".
6. Their Honours continued: "Much will depend upon the nature and circumstances of the remark. Occasional politically incorrect banter will be unlikely to have the requisite purpose or effect."[17] I may say here that, in the light of the evidence canvassed below, I do not regard the matters before the Court as coming into the category of "politically incorrect banter."
7. Having regard to the principles articulated in the above cases, I turn to the evidence adduced in the proceedings.

1. The honorary secretary of the radio station for approximately 6 years, until her resignation on 20th November 2006, was Lorraine Pojdynec. She was an impressive witness. At the outset, it is as well to record that, to the degree that there is any inconsistency between her version of events and that provided by any other witness, I regard her account as the more accurate.
2. Like Ms Pojdynec, other witnesses, such as Mr Coffey, also had their contemporaneous notes of various events, notably and most relevantly of Board meetings of the respondent. I do not regard any witness in the proceedings as dishonest or as seeking or wishing to mislead the Court. However, as I have already noted, I prefer, accept and rely on Ms Pojdynec's evidence to that provided by other witnesses.
3. In addition to her oral evidence, Ms Pojdynec provided three affidavits in the proceedings, sworn respectively 27th February, 27th September, and 31st October 2007. Her affidavit of 27th September 2007 is crucial to the events that give rise to these proceedings. It provides not only her account of relevant events and how she recorded them, but also annexes a range of documentary material that is central to explaining the chain of events and the roles and actions of the respective protagonists.
4. Ms Pojdynec records her practice of minute taking as follows. First, she wrote notes in the course of the meeting. Usually later the same evening (Board meetings seem to have taken place usually around 6pm), or sometimes the following day, she would make more elaborate notes in a diary. Then the following day she would type the draft of the Minutes that were later submitted to the Board/Committee for approval.[18]
5. For each of the five Committee meetings of 31st July, 28th August,

25th September, 23rd October and 13th November 2006, as annexures to her affidavit of 27th September, Ms Pojdynec provides copies of the three sets of documents referred to in the previous paragraph. As well, she provides copies of the finally approved versions of each of the Committee's Minutes. To the degree necessary, I will consider each of these sets of documents. Minutes of Committee meetings subsequent to the central meeting of 31st July are necessary because it was in these later meetings that various amendments were made, as I will explain.[19] 6. In the contemporaneous notes of the meeting of 31st July 2006,

Ms Pojdynec records as follows: "W - Let them fight among themselves - we don't want them." "Kick them all out - Ron." I take "W" to refer to Mr Wayne Brennan, the Station Manager then and now, and "Ron" to refer to Mr Ron Coffey, a then Board member, now President of the radio station. 7. Those notes continue, recording the vote by the Board on each of the new membership applications. They follow the same pattern of two for and two against each of the applications: the two Board members in favour of the new members were Ms Podjynec and Mr Brian Carn; those against being Mr Coffey, Mr Rick Scheeren, with the casting vote being made by the Chair, Mr J Selmes. 8. The final matter to observe from Ms Pojdynec's notes is the following notation: "R said put this in Minutes!!!!" 9. The later, further hand-written notes, which may be regarded more as a brief commentary on the events at the Board meeting as well as a further record of the events of the meeting, state: "Cant [sic] believe what happened!! W - fighting in street[20] - keep them (Kooris)[21] out - Ron. All ladies applications refused. W, R & J - against - B & L for. A very disturbing meeting, damaging if this all gets out. Interesting to see if Minutes are accepted. R. put it in the Minutes plus more!!!!"[22] 10. The draft Minutes, annexure C to Ms Pojdynec's affidavit of

27th September 2007, state as follows (under the heading "New Members"): * The five memberships that were stood over were discussed. Lorraine gave Jon information obtained from the Internet - included were several ACMA investigations and information on 6AR Perth, Jon read the media report on 6AR Perth where the Aboriginal community in Perth had reported 6AR for not involving the aboriginal community in the running of the station. Jon said it had no relevance to QBN-FM.[23] * Discussion on a membership `ceiling' at the station - the question was asked how many members should we have in the association, how many is a good number and should there be a cut off point. Lorraine said she felt membership should not be limited keeping in mind our licence. Jon said the topic should be discussed further and the matter was stood over to the next meeting. * The nominees for membership were Matilda and Antoinette House, Eleanor Gilbert, Barbara Meyer, Jane Morrison. Jon read the applications and Wayne said he didn't want any of them as members saying that they wanted to take over the station and that the aboriginals were fighting on the street corners and he didn't want them. Ron moved that all the applications be rejected. Rick said we would need to have a good reason for refusal. Brian asked if any memberships had been refused in the past and Wayne said that there had been no refusals. Brian said he felt we were heading towards dangerous territory in not accepting the proposed new members and said he was against refusing membership, Lorraine was also against refusing membership saying that with our licence we were supposed to be involving all the community. Wayne said he played country music for the Aboriginals and Brian and Lorraine said that was not meeting their cultural needs, Ron said he played Jimmy Little for them. [Emphasis in original.] 11. The latter part of the Minutes, still in the section dealing with "New Members", record: * Matilda and Antoinette House's [sic] application was refused as the application was deemed not to be a family membership due to the different addresses on the nomination form. Brian suggested a letter be sent advising them to re apply as single memberships. Ron and Wayne said we should not advise them to re apply. * Voting, by a show of hands, was conducted for a decision on the acceptance of the applications. Brian and Lorraine voted to accept the applications, Ron and Rick voted to refuse the memberships. Jon cast the deciding vote and voted to refuse membership. Action Point: Lorraine directed to prepare a response and advise the applicants of the Board's decisions. [Emphasis in original] 12. Annexure F to Ms Pojdynec's affidavit of 27th September 2007 is a copy of the revised Minutes of the meeting of 31st July 2006, which were amended at the Board meeting on 28th August 2007. These amended Minutes state: "The Committee at the meeting of the 31/07/2006 amended [sic] the Minutes to remove the names and show a vote count only. The Board voted to reject the memberships three votes and two votes. Action Point: Lorraine directed to prepare a response and advise the applicants of the Board's decisions." This text from the Minutes is in bold type.[24] 13. The revised Minutes of the 31st July meeting were given to

Mr Brennan at a meeting on 25th September 2006. Ms Pojdynec deposed to the practice of the station manager placing a copy of the approved Board Minutes on the Notice Board of the radio station. 14. Ms Pojdynec also deposed to the amended Minutes being tabled and approved by the Board at its meeting of 23rd October 2006. 15. Annexure J to the same affidavit is Ms Podjynec's notes and comments on the Board meeting of 13th November 2006. She wrote: "Format of Minutes changed 31/7, 28/8 & 25/9, 23/10, 6/11 all changed and back dated to 23/10 or 6/11." She commented that she felt blamed for everything, then stated: "I said I was asked to put the comments in the M 31/7 - Ron said he had "calmed down" now." Those notes conclude: "ALL MINUTES changed - not happy at having to do this." 16. Annexure K is a draft of the further amended Minutes of the Board meeting of 31st July, with a range of hand-written corrections noted on the face of the document. I need not highlight those corrections and amendments. 17. Annexure L in the same affidavit of Ms Pojdynec is a copy of the final, corrected/amended version of the Board Minutes of 31st July 2006, which were approved at the Board meeting of 13th November that year. There are no matters recorded under the heading "Previous Minutes." 18. Under the heading "New Members", by reference only to those sections already set out in these reasons, the sections deleted from the original draft of the Minutes are as follows: * Lorraine gave Jon information obtained from the Internet - included were several ACMA investigations and information on 6AR Perth, Jon read the media report on 6AR Perth where the Aboriginal community in Perth had reported 6AR for not involving the aboriginal community in the running of the station. Jon said it had no relevance to QBN-FM. * Jon read the applications and Wayne said he didn't want any of them as members saying that they wanted to take over the station and that the aboriginals were fighting on the street corners and he didn't want them. Ron moved that all the applications be rejected. Rick said we would need to have a good reason for refusal. Brian asked if any memberships had been refused in the past and Wayne said that there had been no refusals. Brian said he felt we were heading towards dangerous territory in not accepting the proposed new members and said he was against refusing membership, Lorraine was also against refusing membership saying that with our licence we were supposed to be involving all the community. Wayne said he played country music for the Aboriginals and Brian and Lorraine said that was not meeting their cultural needs, Ron said he played Jimmy Little for them. * Brian suggested a letter be sent advising them to re apply as single memberships. Ron and Wayne said we should not advise them to re apply. * Voting, by a show of hands, was conducted for a decision on the acceptance of the applications. Brian and Lorraine voted to accept the applications, Ron and Rick voted to refuse the memberships. Jon cast the deciding vote and voted to refuse membership. 19. Four final matters should be noted. First, in her affidavit of

27th September 2007 Ms Pojdynec denied an allegation that she "leaked" information from the Board to the local newspaper. She was not cross-examined on this claim that was made by Mr Selmes in his affidavit of 20th September 2007, or in relation to her denial of the accusation. Having regard to the veracity of her evidence, and that this, along with other matters, was not challenged her evidence in this aspect must stand unchallenged.[25] 20. Secondly, Ms Pojdynec confirmed that she was unaware of any residential requirement in relation to membership of the radio station. This is also to say, or at least to imply, that the "family membership" issue in relation to the applications of Matilda and Antoinette House could be regarded, on one view, as something of a ruse. It might be argued that the so-called requirement that family members reside at the same residence was a convenient excuse for not accepting their applications. Such a view, in any event, is not immediately plausible. Family members can and often do live in different locations. However, because of the bases upon which I have determined this matter, I do not need to make any formal finding in relation to "family membership" and what, if anything, turns on Ms Pojdynec's evidence about having no knowledge of any residential requirement for membership of the station. Given her position at the radio station and the length of time she held it, it would be remarkable if she did not know of its existence.[26] 21. Thirdly, in her third affidavit, sworn 31st October 2007, Ms Pojdynec deposed to the processes regarding membership applications prior, and subsequent, to a change in the Rules of the Association that governed the radio station. Those changes were effected pursuant to a Special General Meeting of the membership of the station on

26th June 2006. In Ms Pojdynec's terms, that meeting granted the Board a "vetting right over membership applications," which (it would seem) was either never previously exercised or such power never formally existed. A copy of the Minutes of the Special General Meeting is annexure B to this affidavit. 22. Fourthly, the final corrections to the Minutes of the Board meeting of 31st July took place at the Board meeting on 13th November. This was after the complaints to ACMA and the HREOC had been lodged and after the report in The Queanbeyan Age had appeared on 27th October. An inference may be drawn that the final version of the already corrected and endorsed, but further corrected, minutes was undertaken directly and deliberately against the background of the months of contest at Board meetings and after the now more public ventilation of the difficulties at the radio station courtesy of the complaints to ACMA and the HREOC, and in the local press.[27]

1. Mr Coffey provided two affidavits in the proceedings, sworn respectively 12th April and 21st September 2007. He also gave oral evidence. In his first affidavit, Mr Coffey stated that he was present at the Board meeting on 31st July 2006. He deposed that the only reason for rejecting the applications by Matilda and Antoinette House was because "they were not acceptable for Family membership."[28] He also said that there are [other] Aboriginal members of the station and that there is no discrimination against aboriginal people generally or against the applicants in particular. Formally, he rejected the discussions that took place at the meeting as recorded by

Ms Pojdynec. 2. Mr Coffey's second affidavit (21st September 2007) refers to a book in which he recorded events and decisions at various Board meetings. He had his notes of the meeting of 31st July 2006 transcribed. His note book became exhibit G in the proceedings. 3. In his later affidavit, he again affirmed that Ms Podjynec's account of events is inaccurate and has taken out of context what was said at the meeting. He also affirms that there was no mention or discussion at the meeting in July 2006 of rejecting the House membership application because of their aboriginality. He deposed to having some aboriginality in his own ancestry. 4. Mr Coffey's account of relevant events and discussions at the meeting in question goes along the following lines. It is a genuinely plausible account. He said that the context and detail was that in the course of discussion at the meeting, Mr Brennan mentioned that the nominator of the House application was Mr Ron Gardner, who was a presenter at the radio station. Mr Coffey said that Mr Brennan noted that

Mr Gardner had formerly been hostile to the Houses (`they had been fighting') but they were now `best buddies.' 5. The transcribed notes of Mr Coffey read as follows: * Membership applications from (5). A long discussion took place - general consensus is that the Boyles - Leonard team are attempting to stack meetings. (Barbara Meyer, Eleanor Gilbert, Jane Morrison, Matilda and Antoinette House). * Matilda and Antoinette - discussion re application not filled out correctly - one lives in Canberra, one lives in Queanbeyan. Moved BC 2nd RS that a letter be sent to the Houses' advising them to reapply as single members: Carried. * Wayne spoke of how times have changed - Ron Gardner didn't want `the Houses' to have anything to do with the station because he (Ron) believed they wanted to take over his (Ron) programme. Wayne said he thought they were going to fight in the streets - now they're best buddies (Boyes and Black also involved). RC said Boyes; Leonard; Kemp and Gardner should all be rejected or expelled from the Association. (They are troublemakers) 6. In cross-examination, Mr Coffey confirmed that he did say words to the effect "kick them all out." However, he stated that this statement related, not to the Houses, but to Messrs Boyes, Black and Leonard, because "they're all trouble makers."[29] 7. Also in cross-examination, Mr Coffey agreed that the Treasurer at the meeting on 31st July 2006, Mr Scheeren, said that the meeting needed "to have a very good reason to refuse membership."[30] This statement accords with the minutes taken by Ms Pojdynec noted earlier. 8. As indicated earlier in these reasons more generally, I regard

Mr Coffey's evidence as truthful. Truthfulness does not, however, always or necessarily equate with or confirm the accuracy of the account given. I have already stated that I regard Ms Pojdynec's evidence as both a more fulsome and more accurate account of the events relevant to these proceedings. I prefer and accept her account of events and statements to that given by Mr Coffey.

1. There was one immediate curiosity about Mr Brennan's evidence.

At the opening of the hearing on 2nd October 2007, there was no affidavit from Mr Brennan. Indeed, at that time, I raised with Counsel whether any adverse inference should be drawn by the absence of any evidence from Mr Brennan. Unsurprisingly, Mr Thomas, Counsel for the applicants, indicated that I would be asked to draw relevant inferences in the light of the failure to adduce such evidence.[31] 2. Mr Brennan did ultimately file an affidavit, somewhat unusually, after the trial commenced (sworn 31st October 2007). It is a very modest five (5) paragraphs. He also gave evidence in the course of the hearing. 3. His evidence essentially was that (a) he had no vote at Board meetings and (b) while he attended Board meetings he was involved in discussions at them only to the degree that he was asked to comment or to advise. Otherwise he did not participate in discussions at the meetings. Frankly, I found this part of his evidence somewhat problematic. I say this for the simple reason that he was the station manager. How and why someone with his range of responsibilities would essentially stay mute at the Board meeting of the radio station unless asked a specific question would, in my view, be rather unrealistic. 4. His day to day duties as station manager related to programming, including liaising with presenters and sponsors. He also said that he `switched off a lot' at Board meetings.[32] While I consider Mr Brennan to be a truthful witness, there was, nonetheless, and even on his own admission (just noted), a certain vagueness about his evidence. 5. Regarding the Board meeting on 31st July 2006, Mr Brennan's evidence was somewhat at variance with that of Mr Coffey, as well as Ms Pojdynec.[33] Mr Brennan maintained that he did comment about the unusual relationship between Mr Gardner and the Houses, namely that they were once not friends but now they were. In his words, from paragraph 5 of his affidavit, "I said words to the effect: `I thought they were going to fight in the streets and now they are best buddies.'" He maintained that these words were said only at the close of the meeting. The evidence of Ms Pojdynec and Mr Coffey, albeit with different emphases and context, was that they were said in the course of the meeting during the discussion of the new membership applications.[34] 6. Mr Brennan gave no evidence as to whether the Board resolved to request or to suggest to the applicants that they re-apply for individual membership of the station. He did say that he never heard Mr Coffey say in relation to anyone "kick them all out."[35] 7. In my view, Mr Brennan's evidence did not greatly clarify or assist the account of events as propounded by the respondent.

1. As indicated earlier in these reasons, the evidence of these gentlemen was ancillary or secondary to the evidence of the principal witnesses already recounted.
2. Mr Selmes was the president of the Board of the respondent at the time of the meeting in July 2006. In his affidavit of 20th September 2007 (par.2) he confirmed that in July of 2006 (and seemingly earlier) there were "conflicts within the radio involving competing factions and `leaking' from the committee." One aspect of the various conflicts involved court proceedings in the Queanbeyan Local Court.
3. Mr Selmes acknowledged that he did not have a clear recollection about the meeting of 31st July 2006 without reference to his notes. I granted him leave to refer to them. One immediate difficulty with his evidence, however, was that he had also refreshed his recollection of the July 2006 meeting by referring to Mr Coffey's notes. I was not advised precisely when that had occurred. On that basis alone, his evidence must be qualified to the degree that his evidence is reliant upon the notes of another witness. He also confirmed that his own notes did not disclose anything about the processes at the meeting in relation to the consideration of the membership applications.[36]
4. Mr Selmes alleged in his affidavit that Ms Pojdynec was the source of the "leak" of the draft minutes to the local newspaper. He was not examined, or cross-examined, on this allegation, or in relation to anything else for that matter. I have already noted that Ms Pojdynec denied the allegation, and that I accept her evidence. Otherwise I do not regard Mr Selmes' evidence as of much probative value. This includes his contention that there was a "family membership" requirement. His evidence in this regard was contradicted both by

Mr Coffey and Ms Pojdynec. In the absence of documentary or other evidence confirming his claim in this regard, it must stand contradicted by the other witnesses. 5. In relation to Mr Leonard, who was a founding member of the radio station, two things may be said. First, even if there had been no other evidence, such as from Mr Selmes that there were `conflicts within the radio station,' both in demeanour and in evidence it was patent that Mr Leonard was very hostile to those who were [now] running the radio station, especially at a Board level. From observation during the trial, and otherwise, it would appear that the acrimony was mutual. 6. Secondly, he annexed to his affidavit of 27th September 2007 copies of (a) the Code of Practice of the Australian Communications and Media Authority ("ACMA"), and (b) a Media Release (dated

22nd May 2007) and Investigation Report No.1775 (dated 9th May 2007), both of which relate to a complaint he lodged with ACMA. The heading of the Media Release stated: "ACMA finds 2QBN Queanbeyan failed to encourage community participation and did not have volunteer guidelines or conflict resolution policies in place." 7. Mr Leonard confirmed that the Board's rejection of the applicants' applications for membership of the station formed part of his complaint to ACMA. 8. After noting what was recorded in the final and approved version of the respondent's minutes of the meeting of 31st July 2006 regarding the five new membership applications, the ACMA Investigation Report stated (at p.7): * In the absence of any additional reasoning for the rejection of the above five applications, the delegate must rely on the above references in the endorsed minutes of the 31 July meeting. This reasoning does not reflect criteria that are reasonable, specific and/or objective. 9. For the purposes of the current proceedings, I do no more than note the complaint and the ACMA conclusions. None of the matters referred to in the ACMA Report is conclusive or determinative of the issues before this Court.

The Evidence of Ms Antoinette House and Ms Matilda House

1. Evidence of Ms A House: In her affidavit of 27th February 2007,

Ms Antoinette House ("Ms A House") deposed to being a leader in the aboriginal community in the Ngunnawal Territory and that she represented that community in a number of [unspecified] areas. She confirmed that she works as a public servant. 2. Ms A House deposed to having a belief that her application for membership of the respondent radio station was because she was aboriginal. She formed that belief, she said, because of her reading of certain documents that she annexed to her affidavit. Those documents, as described by Ms A House, are: (a) Annexure "F": "...copy of original minutes of the respondent's meeting on 31 July 2006...;" (b) Annexure "G": "... copy of the minutes of the meeting of 31st July 2006 which were later published after being revised and edited." 3. Ms A House also attached as annexures to her affidavit copies of

Ms Pojdynec's letter of resignation of 20th November 2006, as well as the newspaper article from The Queanbeyan Age, to which I have previously referred. Ms A House deposed to her belief that "Annexure F" referred to in the previous paragraph "... was placed on the respondent's notice board shortly after the conclusion of the meeting." 4. Unfortunately, Ms A House, neither in her affidavit nor in her oral evidence, indicated from whom she obtained copies of the various versions of the Board minutes or how she knew that the "original [draft] minutes" were placed on the respondent's notice board. Presumably she obtained a copy of Ms Pojdynec's letter of resignation from her, but as to the other matters, there is no evidence one way or the other, although it may be inferred that Ms Pojdynec also provided Ms A House with copies of those documents as well. 5. Ms A House testified that upon learning of the rejection of her membership application she felt insulted, distressed and a feeling of shame. She said that she felt that she `lost face' in both the aboriginal and wider community.[37] 6. Of greater relevance is Ms A House's evidence that, while she could not recall precisely who told her that her membership application had been rejected, she did recall that she was approached by a reporter from the local newspaper (The Queanbeyan Age) who advised her of what had [purportedly] occurred at the recent Board meeting, of what was in some minutes that were on the notice board of the station, and asked for her comments. She met with the reporter the next day who showed Ms A House a copy of the minutes, which the reported had. Ms A House confirmed that she did not know who gave the information to the newspaper. 7. Evidence of Ms Matilda House: Ms Matilda House ("Ms M House") is a Ngambri-Ngunnawal elder. Annexed to her affidavit is her curriculum vitae, which lists a large number of community organisations (predominantly aboriginal) with which she has been involved. 8. She filed two affidavits in these proceedings, sworn respectively 27th February and 28th September 2007. In the first affidavit, Ms M House adopted the evidence set out in Ms A House's affidavit. And like her daughter-in-law, she too annexed a copy of the letter (Annexure A), dated 2nd August 2007, advising both applicants that their membership application had been rejected on the basis that it was deemed not to be a "family membership" because of the different addresses on the application form. 9. Ms M House's second affidavit deposed to her wish to become a member of the respondent radio station "to foster and facilitate harmonious relations and conciliation for the community." She said that upon receiving her letter of rejection and having read the report in the local newspaper, she formed the view that "the reason for the rejection ... was racially based." She also confirmed that, as a consequence of the rejected application, she became "quite distressed", suffered `loss of face' in her own community and in the wider community. She also contended that she suffered anxiety and feelings of alienation and shame. She said that as a result of the rejected application, she had been "denied the opportunity to contribute to the conciliation process through the involvement of the Aboriginal community of the radio station." 10. Ms M House is a confident witness, well versed in public discourse and very capable of promoting her views. Her engagements with

Mr Bevan, the solicitor for the respondent, who she regularly called "darling" in the course of their contests, were lively. I make no comment as to whether such vitality helped or hindered the presentation or acceptance of her evidence. 11. In the course of the trial, Ms M House maintained two positions with some fervour, although they were, at times, somewhat mutually exclusive or inconsistent. First, she said that, after receipt of the letter (dated 2nd August 2006) advising her that the joint application for membership had been unsuccessful, she first learnt of the [allegedly racially discriminatory] reason for the rejection of the application for membership from a reporter from The Queanbeyan Age newspaper. This occurred, she said, some time shortly before the article appeared in that newspaper on 27th October 2006 when the [un-named] reporter telephoned her while she was in Sydney.[38] Unsurprisingly, she said that reading the article in the newspaper caused her significant distress. 12. The second position she put was that she learnt of the allegedly racially discriminatory action of the respondent regarding the grounds for rejecting the membership application via what she called "the raging fire."[39] By this term she indicated that within the aboriginal community "news", particularly bad news, travelled and did so quickly. I take the "raging fires" to be the aboriginal equivalent of 'the grapevine.'[40] The news in question was the contention, later reported in the newspaper and detailed in the draft minutes of the Board (noted above), that `aborigines were fighting in the streets.' 13. It will be readily apparent that Ms M House claimed three sources for her information that the membership application had been rejected on racially discriminatory grounds: (i) an un-named reporter from The Queanbeyan Age (who was never called to give evidence - a course that would have been helpful); (ii) the article in that newspaper; and (iii) the "raging fires" within the aboriginal community. She also confirmed that she did not know who gave a copy of the draft minutes to the newspaper.[41] 14. Notwithstanding the vibrancy that she brought to the giving of her evidence, I accept Ms M House's evidence as essentially truthful, as I do of Ms A House's evidence. 15. By way of general observation, I do not doubt the feelings of genuine distress and concern felt by both applicants as a result of their rejected application for membership of the radio station. That is a natural human reaction and should not be considered or treated as a reaction or emotion peculiar or unique to aboriginal people. That said, those feelings and emotions would have been heightened by the applicants' evaluation that the reason for the rejection was due to their aboriginality. Unfortunately, there was no medical evidence put before the Court to assist in assessing the nature and levels of distress claimed by the applicants. Such a course would also have been helpful.

1. Two further matters of evidence need to be dealt with.
2. First, there were present at the meeting on 31st July two other Board members: Mr Scheeren and Mr Carn. The former voted against the membership applications before the Board (along with Mr Coffey and Mr Selmes); Mr Carn voted for them (along with Ms Pojdynec).

Ms Pojdynec records that Mr Carn commented in the course of the discussion about the new membership applications that [the Board] was "heading towards dangerous territory in not accepting the proposed new members...." According to Ms Pojdynec's evidence, Mr Carn's comments came (a) after Mr Scheeren had said that "we would need to have a good reason for refusal [of the new applications]"; (b) after Mr Carn asked Mr Brennan whether there had ever been any applications for membership rejected (answer: "no"), (c) after the alleged comments by Mr Brennan that the group of applicants `wanted to take over the station and that aboriginals were fighting on the street corners and he didn't want them'; and (d) after Mr Coffey had allegedly said, in reference to all the new membership applicants, "kick them all out." 3. Relying upon the rule in Jones v Dunkel,[42] Counsel for the applicants, Mr Thomas, submitted that the respondent's failure to call either of these Board members (Mr Scheeren and Mr Carn) entitled the Court to draw an inference adverse to the evidence of and contentions proposed by the respondent in circumstances where that evidence, notably from Mr Coffey and Mr Brennan, was in conflict, or at variance, with the evidence of Ms Pojdynec. One curiosity may, however, be noted: Mr Carn voted in favour of the new membership applications with Ms Pojdynec. Mr Thomas did not offer any reason why he did not call Mr Carn himself. That he did not do so lessens to some degree the submission in relation to Jones v Dunkel at least in relation to the failure to call Mr Carn. It does not affect the inference in relation to the failure to call Mr Scheeren. 4. That evidentiary rule, and its various features, is comprehensively detailed in the Seventh Australian Edition of Cross on Evidence, especially at [1215].[43] As set out in Cross on Evidence, the learned author states:[44] * ... that unexplained failure by a party to give evidence, to call witnesses, ... may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case. 5. By way of further comment, Cross notes that the rule does not operate to require a party to give merely cumulative evidence.[45] In my view, that was clearly not the case here. Where the central issues, as they do, surround what happened and what was said at a particular Board meeting, and where (as here) there was significant conflict between the evidence of the witnesses who were called, it would have been both reasonable and proper to call those who were present at that meeting. It was also reasonable and proper to expect, in the absence of Mr Carn and Mr Scheeren, to be provided with an explanation why those gentlemen did not provide any affidavit evidence and/or why they were not called to give evidence in the course of the trial. They were not called and no explanations were ever given. 6. As well, the author of Cross quotes the straight-forward comment by Glass JA in Payne v Parker, where his Honour said: "the missing witness would be expected to be called by one party rather than another."[46] I have just observed that no explanation was ever given why Mr Carn and Mr Scheeren were not called. 7. In my view, the failure of the respondent to call them, and the failure to provide any explanation why this was not done, allows an adverse inference to be drawn of the kind set out in Jones v Dunkel and as summarised by Heydon J in Cross on Evidence in the text cited above from Cross on Evidence at [1215]. Such an inference adds extra weight, if it be needed, to Ms Pojdynec's already accepted evidence. 8. The second Jones v Dunkel consideration relates to the failure (by either party) to call the reporter from The Queanbeyan Age newspaper. It will be recalled that the reporter telephoned

Ms M House, and later met with Ms A House to discuss, among other things, the "leaked" draft Board minutes. No party made any submissions or otherwise commented on this significant lacuna in the evidence. Similarly, no party explained why the reporter, readily identified in the front page article as Ms Trudy Taylor, was not called. It may be, of course, that had she been called she would have refused to disclose her "source" and related information for the article, and which prompted the telephone call to Ms M House and the subsequent meeting with Ms A House. It can be only conjecture if she would have refused to disclose her "source" or what her evidence may have been. It may be that the fact that neither party called

Ms Taylor, or explained why she was not called, cancels out any possible Jones v Dunkel inference against either party. Certainly, I am in no position to draw any inference, against either party, in these circumstances. That said, it is both an unsatisfactory evidentiary situation and an otherwise remarkable omission regarding (a) the failure to call this witness, (b) the failure to explain why this was so, and (c) the failure of both parties to make any submission in relation to these matters. 9. Before I summarise the evidence and formal findings, it is important, not to mention useful, to note the principles of evidence to be employed in determining the issues in dispute.

1. I have previously set out s.140 of the Evidence Act. I turn now to its application to the facts of this case and in the light of a recent and helpful discussion of it by the Full Court of the Federal Court in the context of a racial discrimination case.
2. A convenient and thorough-going statement of relevant evidentiary principles was detailed by Branson J in her concurring judgment (with French & Jacobson JJ) in Qantas Airways Limited v Gama.[47] Apart from being bound by Branson J's judgment (and that of French & Jacobson JJ), I agree with her Honour's consideration of, and statement of principles concerning, "the alleged Briginshaw test" and the application of s.140 of the Evidence Act.
3. At [127], Branson J noted:
   • ... the Evidence Act 1995 (Cth) ... now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s.140 as follows:
   • (1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
   • (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
     • (a) the nature of the cause of action or defence; and
     • (b) the nature of the subject-matter of the proceedings; and

1. At [128], her Honour continued:
   • In Employment Advocate v Williamson (2001) 111 FCR 20 at [65] ... I expressed the view that s.140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.[48]
2. Next, and not irrelevant for immediate purposes, Branson J observed, in terms that in some respects mirrored those of Sackville J in Australian Medical Council v Wilson quoted earlier:

The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President [of the HREOC] reflects a recognition ... that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.[49]

1. One final matter may be noted from Branson J's short but helpful judgment. At [139], her Honour said:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings [1992] HCA 66; 67 ALJR 170; 110 ALR 449, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved.

1. I have noted that I prefer and accept the evidence Ms Pojdynec in relation to what transpired at the Board meeting of the respondent on 31st July 2006. Both as a credible and straight-forward witness, Ms Pojdynec's account is supported by a "paper-trail" of draft minutes, which provide a consistent documentary record over a considerable period of time that is not impugned by the different or differing accounts of events by any of the witnesses for the respondent. Her account of the events in question satisfies me according to the requisite standard of proof - on the balance of probabilities - required under s.140 of the Evidence Act, and as articulated by Branson J in Qantas Airways Limited v Gama. Moreover, there is significant corroboration for various sections of her evidence from other witnesses, such as Mr Coffey, who confirmed that Mr Carn said at the meeting that the Board `would need to have a good reason for refusal [of the new membership applications].'
2. Mr Bevan never explained why Ms Pojdynec's evidence, such as that just cited, could be corroborated as being correct, yet challenged as incorrect in other critical respects. As well, Mr Bevan did not explain or otherwise offer a plausible reason how or why Ms Pojdynec would (a) so wrongly record the events in question, and (b) do so, so consistently, over such a long period of time.
3. On the basis of the evidence I accept from Ms Pojdynec, I find that statements were made at the Board meeting that constituted acts involving `a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of [a] human right or fundamental freedom' contrary to s.9(1) of the Racial Discrimination Act. Those statements were made by Mr Brennan and or Mr Coffey, and or by others present at the Board meeting on 31st July 2006.
4. In their respective capacities of station manager and Board member, Mr Brennan's and Mr Coffey's actions, by virtue of s.18A of the Act, draw the respondent radio station into the formal embrace of the Act.[50]
5. As well, even if the claim that the membership application of Ms A and Ms M House was rejected on the basis of it failing to comply with the somewhat doubtful "family membership" requirement of the radio station, in my view, it was but one reason for rejection. Having found that statements contrary to s.9(1) of the Act had been made at the Board meeting in July 2006, whether or not the family membership consideration was relevant, by virtue of s.18 of the Act, the racially discriminatory statements are taken to be the relevant reason.
6. In my view, I do not consider that there was any malice or intent to be racially discriminatory by any of the Board members of the respondent radio station towards the applicants. However, as the jurisprudence in relation to the Act makes clear, intention is not a pre-requisite or requirement for an act to be rendered or found to be unlawful for the purposes of s.9(1). I hasten to note that the actions complained of have been found to be unlawful; they are not to be, cannot be, and should not be, treated or regarded as criminal.
7. Having made such a finding, it remains to consider the appropriate remedies, including whether damages is appropriate in the circumstances and, if so, what the quantum should be.

1. Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act provides an extensive range of remedies in circumstances where a court is satisfied that there has been unlawful discrimination. A number of them are reflected in the relief sought by the applicants in these proceedings.
2. The applicants seek firstly a declaration that the conduct of the respondent on 31st July 2006 in refusing the membership applications by the respondents constituted an act of unlawful racial discrimination contrary to s.9 of the Racial Discrimination Act 1975. There will be such a declaration.
3. Secondly, the applicants seek an order that the respondent not repeat or continue unlawful conduct by refusing membership to the applicants upon racially discriminatory, or other unlawful, grounds. There will be such an order.[51]
4. Thirdly, the applicants seek an order that upon payment of the applicable membership fee, being the fee for a single member in relation to each applicant, the respondent accept the applicants as members of the radio station. There will be such an order.
5. Fourthly, the applicants seek an order that the respondent pay damages and that they be awarded costs. Some comments in relation to "damages" are apt.

1. A useful starting point are the remarks of Wilcox J in Gilroy and Angelov,[52] where he set out statements from an earlier judgment of his in Hall v A & A Sheiban Pty Ltd.[53] In addition to his Honour's comments, he referred to observations by May LJ from the English Court of Appeal in Alexander v Home Office.[54] It is worth quoting both sections from those judgments.
2. In Gilroy v Angelov, Wilcox J said, at [105]: "In Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 256, I observed that "the task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one". I went on to make some comments which I venture to repeat."
3. Those comments from Hall v Sheiban Pty Ltd are (at the place cited):
   • Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122:
   • "As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life."
4. In Angelov, admittedly a sex discrimination case, Wilcox J awarded damages of $20,000.00. In McGlade v Lightfoot[55], a racial discrimination case, Carr J made a declaration of the kind I make in these proceedings, and awarded costs in favour of the successful applicant, but declined to make an order for payment of a donation to a nominated aboriginal organisation.
5. In Silberberg v The Builders Collective of Australia Inc[56] [2007] FCA 1512, also a racial discrimination case, Gyles J made no award of damages, only for costs and for certain restraints to be imposed. Similar orders were made by Conti J in Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church [2007] FCA 55.
6. In Trindall v NSW Commissioner for Police [2005] FMCA 2, Driver FM awarded $10,000.00 by way of general damages in a case where there was both substantial evidence of "significant injury to his [the applicant's] feelings and emotional and psychological distress, hurt and humiliation."[57]
7. In Qantas Airways Limited v Gama, one of a number of grounds of appeal included that an award of $40,000 was "manifestly excessive." The Full Court of the Federal Court dismissed this (and most other) ground(s) of appeal. French and Jacobson JJ said at [94]:
   • ... Ultimately it is the words of the statute [s.46PO(4)] that set the criterion for any award. In any case the discretionary character of the remedy allows an award of an amount "by way of compensation" which does not fully compensate for the loss suffered.
8. While I accept that the failure to provide medical evidence is not fatal to any claim for general damages, and that I have remarked that something more than general claims of shame, hurt and anxiety felt by the applicants would have been helpful, it does, in my view, militate against there being a large award of damages. As well, there was no evidence that the unlawful conduct of the respondent has impaired the employment, or much else, of Ms A House.
9. In the case of Ms M House, she was clearly more than capable of performing the important tasks asked of her at the opening of the 42nd Commonwealth Parliament on 12th February 2008. She was referred to by name with considerable appreciation by the Prime Minister and the Leader of the Opposition in their respective addresses to the Indigenous Welcome to Country, held in the Member's Hall of Parliament House on that occasion. Subsequently, Ms M House has been acknowledged and thanked for her part in that "Welcome to Country" by various Members and Senators in the course of the Governor-General's Speech, Address-in-Reply.[58]
10. In noting that Ms M House is clearly a highly respected Elder of the Ngunnawal people, and in many ways a sought after person, I do not seek to diminish the adverse feelings she felt consequent on learning of the remarks by certain members of the Board of the respondent.
11. In all of the circumstances, in my view an appropriate award of damages should be $6,000 to each of the applicants, together with an award of costs in their favour.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Neville FM

[1] The Rule of Law and the Constitution, The Hon Murray Gleeson, AC (Sydney: ABC Books, 2000).

[3] See, for example, Aristotle's general discussion of "justice", of `rendering to another what is their due', in Bk V of the Nicomachean Ethics, and Cicero, even more expansively, in his famous trilogy, De Legibus (On the Laws), De Officiis (On Duties), and De Re Publica (On the Commonwealth). Classics scholar, Elizabeth Atkins, insists that Cicero's account of justice in De Officiis "contains the earliest theory of justice we possess that explicitly defines justice as that which builds up society." E. Atkins, "`Domina et Regina Virtutum': Justice and Societas in De Officiis," (1990) 35 Phronesis 258-289 at p.258.

[4] See also, in Bk III.6.26, the following: "This, then, ought to be the chief end of all, to make the interest of each individual and of the whole body politic identical. For, if the individual appropriates selfish ends what should be devoted to the common good, all human fellowship will be destroyed."

[5] For a general background on the principle of "non-discrimination" and equality, see I. Brownlie, Principles of Public International Law (Sixth Edition) (Oxford: Oxford University Press, 2003), "The Standard of Non-Discrimination," pp.546-548, T. Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," (1985) 79 American Journal of International Law 283, and S. Curry, "Indigenous Rights_,_" in Protecting Human Rights: Instruments and Institutions, (eds. T. Campbell, J. Goldsworthy & A. Stone) (Oxford: Oxford University Press, 2003) pp.307-321.

[6] It will be seen in other cases that the Act is sometimes referred to simply as "the RD Act."

[7] I note later in these reasons that the context of much of the evidence was a dispute between what might be described as different factions who were contesting the direction and management of the community radio station. Unsurprisingly, this claim (like many others) was disputed, especially by Ms M House, who said in the course of cross-examination: "Why would I want to take control of the radio station. I can have my own if I wanted to, but I want to be part of reconciliation ... of this whole wider community, and becoming a partnership, not intervention, a partnership with the radio station that we already have in Queanbeyan." Transcript (2nd October 2007) p.30.

[8] In his written submissions, Mr Thomas, Counsel for the applicants, did not mention an "apology" as part of the relief sought. Nor was it pressed in the course of oral submissions.

[9] Apart from what has already been stated, and references given, earlier in these reasons, I do not propose considering further the human rights principles and import of the International Convention on the Elimination of All Forms of Racial Discrimination, which is a Schedule to the Racial Discrimination Act. Such matters, as well as indigenous rights specifically in the larger human rights context, are treated in standard texts, such as J. Neilsen & G. Martin, "Indigenous Australian peoples and human rights," in D. Kinley (ed.), Human Rights in Australian Law, (Sydney: The Federation Press, 1998) pp.92-119, and more broadly, A. Devereaux, Australia and the Birth of the International Bill of Human Rights 1946-1966, (Sydney: The Federation Press, 2005), H. Charlesworth, Writing in Rights: Australia and the Protection of Human Rights, New College Lectures (Sydney: UNSW Press, 2002).

[10] The evidence for the application of s.18A is provided later in these reasons. However, it may be stated here that the Chairman of the Board of the respondent radio station (Mr Selmes), another Board member (Mr Coffey), and the station manager (Mr Brennan) all gave evidence on behalf of the respondent. There was never any submission, or even a suggestion, that they were not acting as agents for or on behalf of the respondent in these proceedings or matters directly associated with them.

[11] Respectively[1998] FCA 1650; , (1996) 68 FCR 46; (1998) 91 FCR 8; (2006) 156 FCR 451 and [2008] FCAFC 69; (2008) 167 FCR 537. Only the Macedonian Teachers' Association case was a first instance judgment (of Weinberg J), but which was affirmed on appeal to the Full Court (O'Connor, Sundberg & North JJ), Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287; (1998) 91 FCR 47.

[12] (1996) 68 FCR 46 at p.74 [D]. Heerey J said (at p.58) that he agreed with what Sackville J had to say in relation to s.9(1). See also the general remarks of Black CJ (at p.48) regarding the principal object of the Act and it giving effect to the International Convention on the Elimination of all Forms of Racial Discrimination ("the Convention"). In the course of those remarks, the Chief Justice said (also at p.48 [C]): "The language used in s.9 does not point to any narrower operation ... and nor does the evident policy of the Act. On the contrary, the policy of the Act points to a broad operation and this is of particular significance in legislation of this character." In support of these statements, his Honour cited Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case, which concerned discrimination on the grounds of disability, Mason CJ and Gaudron (at pp.359 & 360; Deane J concurring generally, at p.382) considered that intention or motive was irrelevant to the operation of the anti-discrimination legislation there under consideration. Their Honours relied on a statement by Lord Goff in a sex discrimination case, Reg. v Birmingham City Council; Ex Parte Equal Opportunities Commission [1989] AC 1155. At p.1194, Lord Goff said: "The intention or motive of the defendant to discriminate ... is not a necessary condition of liability." The High Court noted that Lord Goff went on to observe that if intention or motive was relevant, it would mean that there would be a good defence to otherwise discriminatory acts.

[13] [1998] FCA 1650; (1998) 91 FCR 8 at pp.29-30.

[14] (2006) 156 FCR 451 at pp.468-469 [60-62]. Spender & Edmonds JJ agreed with Allsop J.

[15] [2008] FCAFC 69; (2008) 167 FCR 537 at [122].

[16] [2008] FCAFC 69; (2008) 167 FCR 537 at [76 & 77].

[18] In the course of her evidence at the trial, Ms Podjynec confirmed that she wrote her further notes the same day as the Board meeting and "within half an hour" of the meeting. The typed version was completed the following day. See Transcript (22nd November 2007) p.39. Ms Pojdynec's notes and diary became Exhibit D in the proceedings.

[19] In the course of the hearing, and also in these reasons, "Board" and "Committee" are used interchangeably. "Board meeting" and "Committee meeting" refer to identical events.

[20] In the course of her cross-examination, Ms Pojdynec confirmed the accuracy of her record of reference to `Aborigines fighting in the street.' Transcript (22nd November 2007) p.48.

[21] Ms Pojdynec confirmed that her reference to "Kooris" was in effect her short-hand term for aboriginals. She confirmed that that term was not used in the course of the Board meeting in question. See Transcript (22nd November 2007) p.58.

[22] Also in the course of her evidence at the trial, Ms Pojdynec confirmed that she clarified at the Board meeting on 31st July whether the Board wished her to provide a more expansive account of the discussion or simply to record the votes taken. She confirmed that the Board confirmed to her, and Mr Coffey in particular, said "You can put it in the minutes. Put it in the minutes." Transcript (22nd November 2007) p.46.

[23] The reference to "ACMA" is to the Australian Communications and Media Authority.

[24] It is unnecessary to refer to the other hand-written notes of Ms Podjynec regarding the Board meeting of 28th August 2006.

[25] In the course of cross-examination, Ms Pojdynec was asked about draft minutes `going missing' from the station. She confirmed three things: first, her usual practice was to give the adopted minutes to Mr Leonard. Secondly, once confirmed at a Board meeting, the minutes were posted on the radio station notice board, although Ms Pojdynec did not have access to that area of the station. Thirdly, she confirmed that she knew nothing of the "missing draft minutes." Transcript (22nd November 2007) pp.52 & 53.

[26] In the course of his evidence, Mr Coffey confirmed that he was not aware of any residential requirement in relation to "family membership." This was qualified by his `understanding' that such a category of membership was originally set up to enable children, who otherwise could not be members of the radio station, to become members by virtue of them being members of a "family membership." See Transcript (22nd November 2007) pp.68-69. Like Ms Pojdynec, given the length of time of his involvement with the radio station, it would be extraordinary, if there was a "family membership" requirement, that he did not know about it. His evidence is consistent with Mr Pojdynec's that there was no such requirement, or if there was, no one knew of it, and or it was never enforced.

[27] I have previously recorded, but repeat here for ease of reference, that in her "diary entry" for 13th November (Annexure J to her affidavit of 27th September 2007), Ms Pojdynec recorded that "Ron [Coffey] said he had "calmed down" now." She continued in the same place: "ALL MINUTES changed - not happy at having to do this." And earlier, in the same diary entry, she stated: "Format of Minutes changed 31/7, 25/8 & 25/9, 23/10, 6/11 all changed and back dated to 23/10 or 6/11. This is not right I didn't think Minutes could be changed. I was "blamed" for everything. I said I was asked to put the comments in the M 31/7." It will be recalled that Ms Pojdynec resigned as Secretary of the respondent on 20th November 2007. For the sake of completeness, I should also note that a second article appeared in The Queanbeyan Age on 21st September 2007, which reported on ACMA upholding the complaint against the radio station. That newspaper article, entitled "Station warned", became Exhibit A. The same reporter who wrote the first article, Trudy Taylor, also wrote the second piece for the newspaper. In the second article of September 2007, Ms M House is reported as saying that the rejection of her membership application in 2006 had left her feeling ostracised.

[28] Mr Coffey incorrectly noted in his affidavit of 12th April 2007 (par.3) that Matilda and Antoinette House are "mother and daughter." As previously indicated, they are Mother-in-law and daughter-in-law. Nothing turns on this inaccuracy.

[29] Transcript (22nd November 2007) p.71.

[30] Transcript (20th March 2008) p.17.

[31] Transcript (2nd October 2007) pp.6-7.

[32] Transcript (20th March 2008) p.54.

[33] See Mr Brennan's evidence, Transcript (20th March 2008) pp.52-53.

[34] See for example Mr Coffey's affidavit of 21st November 2007, par.3: "After the vote on membership there was discussion and Wayne Brennan mentioned that Ron Gardner who previously didn't want the Houses' to have anything to do with the station was now supporting them."

[35] Transcript (20th March 2008) p.52.

[36] Transcript (20th March 2008) p.69.

[37] Transcript (2nd October 2007) pp.11-12.

[38] See Transcript (2nd October 2007) pp.27 & 36.

[39] See Transcript (2nd October 2007) pp.27, 28, 33-34, 42.

[40] Should it need to be defined, the Macquarie Dictionary (Fourth Edition, 2005) (p.619) defines "grapevine" as "the network of personal and other contacts through which information ranging from gossip to substantive information is passed informally."

[41] Transcript (2nd October 2007) p.29.

[42] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. See especially the observations of Kitto J at p.308, Taylor J at p.312, and Windeyer J at pp.320-322.

[43] Cross on Evidence, Seventh Australian Edition (J.D. Heydon) (Sydney: Butterworths - LexisNexis, 2004) pp.39-45.

[44] Ibid, at p.39: internal citations have been omitted.

[45] Ibid, at p.42. Internal citations have again been omitted.

[46] Payne v Parker [1976] 1 NSWLR 191 at p.201. Cross on Evidence, op. cit., p.42.

[47] [2008] FCAFC 69; (2008) 167 FCR 537 at pp.573-577.

[48] Branson J then cited, still at [128], in support of the statement quoted, which I need not repeat, a detailed passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 499 at pp.449-450.

[49] Her Honour also endorsed the remarks of Weinberg J in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at p.29, also previously quoted in these reasons, where his Honour said that "anti-discrimination legislation should be regarded as beneficial and remedial legislation." Respectfully, I endorse Weinberg J's remarks.

[50] See also these reasons, at [18] and notes thereto.

[51] I noted earlier in these reasons that in his written submissions, or otherwise, Mr Thomas did not seek an order requiring the respondents to issue an apology to the applicants. Even if such an order was sought, I would be disinclined to grant it. Unless an apology came at the respondent's initiative, in my view, a court-ordered apology would advance relations between the parties little. Apologies should not be forced. In order to be genuine and appropriate, apologies need to be initiated by those issuing them. Indeed, as Driver FM noted in Trindall v NSW Commissioner for Police [2005] FMCA 2, at [190]: "I will not order the provision of an apology. It would in my view be of no real value to Constable Trindall unless it is genuine and sincere. If, in the light of these reasons, the NSW Police Commissioner genuinely and sincerely wishes to apologise to Constable Trindall, no order is necessary."

[52] [2000] FCA 1775; (2000) 181 ALR 57.

[53] [1989] FCA 72; (1989) 20 FCR 217.

[54] [1981] 1 WLR 968.

[55] McGlade v Lightfoot (2002) 124 FCR 106; 73 ALD 385; [2007] FCA 1457; EOC 93-252.

[56] Silberberg v The Builders Collective of Australia Inc (2007) 164 FCR 475; (2007) 98 ALD 54; [2007] FCA 1512; EOC 93-478.

[57] Trindall v NSW Commissioner for Police [2005] FMCA 2 at [185] - [186].

[58] See, for example, the Speeches by Mr Zappia (Makin), Commonwealth Parliamentary Debates, (House of Representatives) Hansard (11th March 2008) p.1367, and Senator Lundy (ACT) Commonwealth Parliamentary Debates, (Senate) Hansard (12th March 2008) p.746. These matters may otherwise be accepted as "Matters of common knowledge" under s.144 of the Evidence Act.