1. the affidavit of Victor Philip sworn 3 November 2009; 2. Exhibit A1 - Human Rights and Equal Opportunity Commission complaint form;

1. Mr Philip gave sworn testimony and was cross-examined at the hearing on 11 March 2010 (transcript); and

1. the Affidavit of Kylee Malinda Brown sworn 11 March 2010.

Ms Brown gave sworn testimony and was cross-examined (transcript). 2. The Respondent relies on the following evidence:

1. Affidavit of Katherine Elizabeth Faber, Recruitment Officer employed by NSW Police Force sworn 8 October 2009, gave sworn testimony and was cross-examined; 2. the Affidavit of Ms Bailey, Recruitment Officer employed by NSW Police Force sworn 6 October 2009, gave sworn testimony and was cross-examined;

1. the Affidavit of Anthony Warren Malone, together with Exhibit AM1. Inspector/General Manager Police Force Recruitment Branch sworn 10 November 2009, gave sworn testimony and was cross-examined;

1. Exhibit R1 - Statement of HREOC; and 2. Exhibit R2 - Mr Philip's employment history.

1. In Mr Philip's affidavit sworn 3 September 2009, he indicates that he is a permanent resident of Australia. It is his intention and he is eligible to become an Australian Citizen. He indicates that he has been living in Australia for approximately ten years. He was born in Nigeria and is an African. He states that he is black. He is married to a white Australian, Kylie Brown, and have three children aged 5, 3 and 1 at the time that he prepared the affidavit. His first language is Ibo and he learned English from the time he started school at the age of 6. The lessons at school were conducted in both English and Ibo. He indicates that in Nigeria the television stations were broadcast mostly in English as Nigeria is a former British Colony. He claims that he speaks English well and he does not speak with an Australian accent, but rather with an African accent. He further indicated that he speaks English, German, Russian, French, Portuguese, Ibo and Iyeruba to various degrees. He claims that he is most proficient in English and Ibo and speaks German and Russian quiet well. At his home environment, Mr Philip and his wife and three children converse in English.
2. Prior to immigrating to Australia, the Applicant lived in Germany for approximately three years, where he played professional football (soccer) in the second division. Since immigrating to Australia, he has worked as a concierge and a cleaner. He states that he does not have a criminal record in any country and has never committed a criminal offence. Since arriving in Australia he has completed a TAFE course in Certificate II for Security Guarding and a statement of attainment in hairdressing skills. He has also completed three modules in Engineering - Production Technology (Welding) at Ultimo TAFE.

All of those relevant qualifications are attached to his affidavit. 3. I rely upon the written submissions of Mr Seck in respect to the background which ultimately results in this matter being brought before the Court. In 2008, the New South Wales Police Force advertised in the Sydney Morning Herald for expressions of interests for the Associate Degree in Policing Practice run by Charles Sturt University, under an agreement with the New South Wales Police Force. It is an associate degree designed to meet the educational needs for entry level police officers by providing the foundational knowledge and applied skills of modern policing. In order to be offered a job as a probationary police officer, the candidate must be of 19 years of age and complete session two of the degree. 4. Enrolment in the associate degree is a competitive merit based selection process. An Applicant must pass a number of stages, including academic eligibility, professional suitability, a health assessment, physical fitness and physiometric tests, a certificate in first aid, typing and swimming. Submitting an Application does not guarantee a place in the associate degree. 5. Mr Philip saw the advertisement in the Herald and made enquiries about the position. He then received an information pack from Charles Sturt University, including an admissions eligibility guide. Mr Philip applied to the Charles Sturt University. He received confirmation that he had met the academic requirements by letter dated 31 July 2008.

He then progressed to the next stage to complete the New South Wales Police Forces Professional Suitability assessment. Mr Philip downloaded from the New South Wales Police Force website the NSW Police Professional Suitability Application Form and medical history assessment form. The Application Form required the candidate to provide personal information including background details, previous dealings with the NSW Police Force, any criminal history and certain declarations on various matters. On 29 August 2008, Mr Philip completed, in part, the Application form and returned it to the

New South Wales Police Force. The Application form was incomplete, as some information was missing. 6. The NSW Police Force recruitment branch conducts professional suitability checks based on the information contained in the Application form. The NSW Police Force used a document headed 'Internal Working Document - Professional Suitability Checklist' which sets out various matters and databases that the NSW Police Force refers to in confirming Mr Philip's background. Ms Mandele Morgan of the NSW Police Force Recruitment Branch commenced a Professional Suitability Check of

Mr Philip on 4 September 2008 by completing some preliminary information. Senior Constable Katherine Fairbrother performed some further checks on 5 September 2008. These checks were recorded on the Professional Suitability Checklist for Mr Philip. 7. Ms Katherine Faber is a recruitment officer with the New South Wales Police Force and has been since 1997. She continued the professional suitability checks on 9 September 2008. Ms Faber examined Mr Philip's professional suitability Application form and observed that the Applicant needed a security clearance from Nigeria because he spent more than

12 months in another country after the age of 18. He had not provided such a clearance. Ms Faber also noted that the Application Form did not include other necessary information, including witnessing the drug, alcohol and financial solvency declarations. 8. As part of determining the professional suitability of Applicants, the standard practice of the NSW Police Force is to conduct a telephone interview to assess the English language communication skills of the candidate. Good communication skills form part of the inherent requirement of the job of being an operational police officer. These skills include the ability to use appropriate communications so that one can be understood clearly in face to face communication and over the telephone or radio. On the morning of 9 September 2008, Ms Faber contacted

Mr Philip regarding his overseas clearance from Nigeria and to complete his Application form. In obtaining the additional information, Ms Faber also used the opportunity to assess Mr Philip's communication skills. She completed the document called 'Internal Working Document' which sets out a guide in conducting a telephone interview. The head of the recruitment section, Inspector Malone, during cross-examination in this matter, stated that even though he preferred compliance with the guide, it did not constitute a mandatory procedure. 9. Ms Faber asked Mr Philip several questions to complete his form and advised him that he had to obtain an overseas security clearance.

Ms Faber noted that Mr Philip spoke with an accent, and during the conversation expressed his dissatisfaction about the time and cost of obtaining the security clearance. She also noted that Mr Philip became angry and began to speak very quickly. As a result, Ms Faber found that she could not understand large parts of what Mr Philip was saying. Evidence was given by Ms Faber, Inspector Malone and Senior Constable Bailey stating that the practice of the New South Wales Police Force was that the general working documents merely represented a guideline. Where the candidate had not completed the Application form fully, the New South Wales Police Force had a Standard Practice to make an assessment of a candidate's English language skills as part of the normal conversation in obtaining the relevant information. 10. On the internal working document, the relevant office conducting the interview must identify the "English communication skills" by ticking the appropriate box of whether the Applicant had "excellent", "satisfactory" or "poor" English language skills. In the case of

Mr Philip, Ms Faber ticked the box marked "poor English language skills, i.e. difficult to understand - refer to team leader". Ms Faber also ticked the box next to "Applicant has an accent". In the Working Form Ms Faber recorded a note of her conversation with Mr Philip. She signed and dated the document 9 September 2008 and rated Mr Philip as 3/10. Ms Faber completed the internal working document on the same day as her conversation. Mr Philip does not have a record of the conversation but he claims that he was pleasant throughout and did not become irate. His wife, Ms Kylie Brown, stated to have been at home and heard the conversation. 11. Ms Faber referred the interview to Senior Constable Bailey to conduct a second telephone interview. Senior Constable Bailey had significant operational and recruitment experience and had acted as Team Leader from time to time. She had worked in the NSW Police Force recruitment branch since 2001. 12. The NSW Police Force has a standard procedure for another recruitment officer to conduct a second interview with Applicants who had poor or doubtful English assessments to alternate the prejudice by a single assessment which might be unfair, inaccurate, or an unrepresentative sample of an Applicant's communication skills. In cross-examination, Inspector Malone stated that in controversial cases, matters could be referred to him and even elevated up to more senior officers. 13. On 9 November 2009, Senior Constable Bailey rang Mr Philip on his mobile phone to conduct a second interview to assess his English language communication skills. At the time of the call, Mr Philip was walking down Illawarra Road, Marrickville. Senior Constable Bailey asked Mr Philip various questions about overseas criminal clearances and his migration to Australia. It is alleged that Mr Philip became agitated and began to speak more quickly. Senior Constable Bailey claimed that he consequently became more difficult to understand. Senior Constable Bailey claims that she explicitly told Mr Philip that she was finding it difficult to understand him and that the NSW Police may have also experienced this same issue. It is alleged that Mr Philip became defensive but the telephone discussion ended. Senior Constable Bailey claims that the phone was cut out but Mr Philip claims that Senior Constable Bailey hung up. 14. Senior Constable Bailey admitted during cross-examination that she had no independent recollection of her discussion with Mr Philip. She made a file note of her conversation with Mr Philip shortly afterwards in accordance with her usual practice. Mr Philip did not have a record of the discussion. 15. Senior Constable Bailey completed an individual professional suitability assessment document for Mr Philip. She completed the document on the same day as the second interview. Mr Philip's details are set out on the top including his CALD background as Nigerian. This identifies that the Applicant had failed English communication. Senior Constable Bailey marked that box. She also ranked Mr Philip's attitude in Part H.

He received a "2" for "serious" incidents and a "2" for "recent" incident totalling a competitive rank of 4. A two point rating for a category is identified as "serious". Mr Philip received a "FAIL" for the assessment. Consequently, Senior Constable Bailey wrote "Fail: Adverse". 16. Senior Constable Bailey concluded that Mr Philip did not have sufficient English communication skills to be a Police Officer and his manner was rude and belligerent. She therefore believed that he would not be suitable to become a police officer. Mr Philip's Application was rejected on the combined grounds of the failure to meet the English communication skills standards and his attitude. She records her assessment in her file note. 17. If an Applicant's English communication skills are the sole reason for failure, the NSW Police Force has a usual procedure not to decline the Application, but to offer the candidate an opportunity to improve his or her communication skills and proficiency. In this case, the NSW Police Force would send a letter to the candidate, suggesting a range of options including NSW TAFE and the NSW Adult Migrant Service. During 2007 - 2009, where Applicants demonstrated inadequate English communication skills during the telephone interview process, the NSW Police Force referred 30 Applicants to the NSW Adult Migrant Service. These Applicants were not rejected but encouraged to improve their skills and to reapply at a later time. However, given that Mr Philip failed for the combined reasons of poor attitude and poor English communication skills, the NSW Police Force declined to progress his Application further. Senior Constable Bailey sent a letter the same day advising him that his Application had been unsuccessful as a result of his failure to meet the NSW Police Force Professional Suitability Standards. 18. On 21 November 2008, Mr Philip filed a complaint with the Human Rights and Equal Opportunity Commission claiming that he had been discriminated against because of his race. In the reasons he states: * I was denied employment because of my accent which pertains to my ethnic origin. 19. On 26 June 2009, the Human Rights and Equal Opportunities Commission forwarded Mr Philip a Notice of Termination issued pursuant to s.46PH (2) of the Human Rights and Equal Opportunity Commission Act 1998 indicating that the complaint alleging discrimination under the Racial Discrimination Act 1975 has been terminated under s.46PH(1)(i) of the HREOC Act on the grounds that a delegate of the President was satisfied that there was no reasonable prospects of the matter being settled by conciliation. On 23 July 2009, an Application was filed in this Court.

1. Mr Seck advances the argument that the Applicant's complaint alleges that "I was denied employment because of my accent which pertains to my ethnic origin" on 9 September 2008. Attached to the complaint is a statement dated 21 November 2008 signed by the Applicant which details of the alleged incident. Section 46PO(3) of the AHRC Act limits the matters that can be the subject of litigation to matters raised in the terminated complaint. It provides:
   • (3) The unlawful discrimination alleged in the Application:
     • (a) must be the same as (or the same in substance as) the unlawful discrimination that is subject to the terminated complaint, or;
     • (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
2. Mr Friend contends in para.4 of his submissions that the requirement of s.46PO(3) of the HREOC Act can be excused or waived on the basis of the Federal Magistrates Court's obligations to proceed with "undue formality" under s.42 of the Federal Magistrates Court Act 1999 (Cth) is misplaced (reference should also be made to s.46PR of the HREOC Act which provides that the Court is not bound by technicalities or legal form). However, these provisions are designed to ensure that the form does not triumph over substance and that justice prevails over technicalities.
3. Mr Seck submits that s.46PO(3) is not a procedural provision. Mr Friend, on behalf of the Applicant, sought to adjust his case during the hearing. Mr Seck asserted that the Court's jurisdiction does not permit Mr Friend to expand the scope beyond the boundaries of the original complaint.
4. Mr Seck submits that the term, 'unlawful discrimination' alleged in the Application pursuant to s.46PO(3) comprises two parts:
   1. the allegation of conduct constituting discrimination; and
   2. the allegation of conduct is unlawful and the Commonwealth discrimination legislation by reference to the relevant provisions alleging to be contravened.
5. It is a composite test and both requirements must be satisfied. The "unlawful discrimination" alleged in the Application is set out in Part B (reproduced at [3] above). The Applicant claims that the provisions relevant to his claims are ss.9, 15, 18 and 18A of the Racial Discrimination Act. The Application comprises two grounds:
   1. The Respondent refused the Applicant employment because of his race; and
   2. The Respondent did not afford the same conditions of work to other employees because of the Applicant's race (ambient that the Applicant was never an employee himself).
6. Mr Seck contends that it is not plain that these allegations are independent grounds. Both appear to concern the same factual allegations. Mr Friend, on behalf of Mr Philip, does not address the second complaint in his submissions. Once the "unlawful discrimination alleged" is identified, then it must be shown that it is the same or substantially the same as the "unlawful discrimination alleged" in the complaint under s.46PO(a) of the HREOC Act, or arises out of the "acts, omissions or practices" alleged in the complaint under s.46PO(3)(b) of the HREOC Act. If both these requirements are not satisfied, the Court does not have the jurisdiction to hear and determine the complaint.
7. Mr Seck submits that under s.46PO(3)(a), the "unlawful discrimination alleged" in the legal proceedings must be the "unlawful discrimination alleged" in the complaint: Charles v Fuji Xerox Australia Pty Ltd (Australia) [2000] FCA 1531; (2000) 105 FCR 573 at [38]. This sub-section requires substantially the identity of both components; that is, the conduct alleged to constitute the discrimination and the alleged contradiction of the specific provision of the Racial Discrimination Act. In this case, the "unlawful discrimination alleged" in the complaint is that the Respondent denied Mr Philip employment because of his accent pertaining to his ethnic origin.
8. Mr Seck submits that under the Racial Discrimination Act, the term 'ethnic origin' is a separate ground to its cogent concept of 'race', 'colour' or 'national origin' and are not used interchangeably (see for example s.9(1) and s.15(1)). In other words, a person's ethnic origin does not equate to a persons race, colour or national origin. Each characteristic is distinct and stands as independent grounds of complaint. The Respondent submits that the alleged "unlawful discrimination" in the Application is not substantially the same as that alleged in the complaint. Mr Philip's complaint is an allegation of discrimination on the ground that his accent pertaining to his 'ethnic origin'.
9. In the Application, Mr Philip claims unlawful discrimination on the ground of his 'African race' and it is submitted that Mr Philip has changed the unlawful discrimination alleged from discrimination on the ground of ethnic origin in the complaint to discrimination on the grounds of race in the Application. The notion of race is not the same as ethnic origin. By changing the alleged characteristics of ethnic origin to race, the Application and the complaint allege different grounds of unlawfulness. This change of legal position is prohibited under s.46PO(3)(a).
10. Unlike s.46PO(3)(a) which requires a substantial match between the allegations of 'unlawful discrimination', s.46PO(3)(b) requires that the unlawful discrimination alleged in the Application 'arises out of' the 'acts, omissions or practices' set out in the complaint. The starting point of this enquiry must be to identify the specific 'act', 'omission' or 'practices' in the complaint and then determine whether the 'unlawful discrimination alleged' in the legal proceedings arises out of the same specific 'acts, omissions or practices'.
11. The term 'arise out of' denotes that the 'unlawful discrimination alleged' must originate or be based upon substantially the same 'acts, omissions or practices' contained in the complaint. It is not enough that the matter arises out of the same general allegation; but, rather, there must be a close connection between the complaint to HREOC and what is alleged in the Court proceedings: see Gamma v Qantas Airways Ltd (2006) (supra) at [9]; Trapman v Sydney Water Corporation and Ors [2009] FMCA 942 at [23].
12. Mr Seck submits that there is an insufficient connection between the 'acts, omissions, or practices' alleged in the complaint and the 'unlawful discrimination alleged' in the Application. A simple comparison between the two documents highlights some significant differences in the alleged factual matters giving rise to the unlawful discrimination. The complaint identifies the relevant act of Respondent 'denying' Mr Philip employment on the basis of accent pertaining to his ethnic origin. By contrast, the Application claims that the 'unlawful discrimination alleged' concerns 'racial discrimination in the workplace'. It is also alleged that: the Respondent was Mr Philip's 'employer'; the police officers were Mr Philip's 'co-employees'; and the discrimination occurred 'on the basis of his African race'.
13. The connection between the unlawful discrimination alleged in the Application and the acts alleged in the complaint is not enough to satisfy the requirements of s.46PO(3)(b). There are fundamental disparities between the Application and the complaint regarding the nature of the relationship between the parties (employer v potential employer), and the alleged prohibited characteristics claimed (race v ethnic origin). Mr Seck submits that the claims made in the Application are not sufficiently similar to support a claim that unlawful discrimination alleged arises out of the same acts contained in the complaint.
14. Mr Friend contends that the Federal Magistrates Court has jurisdiction to determine this matter pursuant to s.46PO(3) of the HREOC Act.

Mr Philip's complaint was clearly made on the basis of race.

Mr Friend refers the Court to the decision in Trapman v Sydney Water Corporation [2009] FMCA 942 at [23] where it illustrates that incidents that are before the commission are capable of being determined in the Federal Magistrates Court. Similarly, the decision in Gamma v Qantas Airways Limited [2006] FMCA 11at [9] provides a helpful summary of the law relating to jurisdiction of the Federal Magistrates Court. Mr Friend submits that this is a matter where the same incidents before this Court and the same as before HREOC. The Applicant does not seek to introduce new incidents or acts or omissions to this Court. 15. Mr Friend contends that the Federal Magistrates Court is not a court of formal pleadings. Section 42 of the Federal Magistrates Court Act provides for procedure without 'undue formality'. There was no response filed by the Respondent, the issue of particulars of the claim or jurisdiction was not raised prior to hearing, nor was there any request for directions or orders for the provision of further particulars of the claim. The Respondents cannot in those circumstances, having answered the relatively straightforward factual complaint by extensive affidavit evidence, now maintain that the Federal Magistrates Court has no jurisdiction due to an alleged pleading deficiency. In any event, jurisdiction is before the Federal Magistrates Court and is enacted by the whole of the complaint before the Human Rights and Equal Opportunity Commission, which is the complaint of race discrimination, referrable to a specific incident on 9 August 2008. 16. Mr Seck indicates that the Respondent contends that neither s.46PO(3)(a) or s.46PO(3)(b) have been satisfied. Mr Seck argues that it follows that the Court does not have jurisdiction to consider the complaint as set out in the Application. To the extent that the Court has jurisdiction, it is simply limited to the allegation of discrimination on the ground of 'accent' pertaining to the Applicant's ethnic origin.

1. Prior to Mr Philip entering the witness box, Mr Seck raised a number of objections to the contents of the affidavit sworn on 3 September 2009 which is the primary affidavit. In the HREOC complaint, under the sub-heading "please state the reason" the following appears:
   • I was denied my employment because of my accent, which pertained to my ethnic origin.
2. In the evidence given in para.2 of Mr Philip's primary affidavit relates to his Nigerian national origin. The fact that he is African is merely a reflection of his continental origin, and his colour. Mr Seck's objection is that the contents of this paragraph is not a matter which is the subject of the complaint to HREOC and therefore has no relevance to these proceedings. Mr Seck acknowledged the issue as to the meaning of 'race' and 'ethnic origin'. Consequently, Mr Seck raised objection to the paragraph and if the paragraph were to be allowed in, it should be subject to the Respondent making submissions on the issue.
3. In support of this objection, Mr Seck referred to s.46PO(3) of the HREOC Act. That provision provides that the complaint in this Court which was the subject of termination before HREOC must be the complaint which is advanced in these proceedings. There must be the unlawful discrimination alleged in the Application which must be substantially the same or arise from the same acts, omissions or practices. Because the complaint set out in the Human Rights complaint relates to ethnic origin, Mr Seck submits that the matter of his colour, to his continental origin and race are in fact irrelevant matters for the Court and that the Court is limited to the substance of the complaint set out in the document.
4. Objection was also raised to the third sentence in para.3 which states:
   • I do not have a criminal record in any country. I never committed a criminal offense.

The basis of the objection is relevance. Mr Seck submits that there is no issue about the Applicant's criminal record here which will assist in the resolution of the matters in dispute in these proceedings. Mr Friend pressed the statement on the basis that Mr Philip had not yet provided his security clearance from the Nigerian Embassy, and this paragraph explains that he has been attempting to obtain that documentation.

1. The last objection was to paragraph 12 of the primary Application:
   • 12. I believe that I have been discriminated against, they had not even received all the information they had requested from me before they rejected my Application, and they rejected my Application because I was an African born in Nigeria and presumed I was a refugee.

The objection was based on relevance and whether or not the Applicant believed that he had been discriminated against could not be of any probative value in assisting the Court. The part of the sentence that the Applicant claims:

They rejected my Application because I was African born in Nigeria and presumed I was a refugee.

Mr Seck contends that the issue of whether or not he was African born in Nigeria does not go to the issue of ethnic origin. In the second part it raises the issue:

1. In support of his view, Mr Seck referred to the statement that is attached to the HREOC complaint and there is a reference to his refugee status in the affidavit. Given that accent has been the primary, not the sole basis alleged for racial discrimination, any evidence about his refugee status cannot be of any relevance to these proceedings and is clearly not the subject of the original complaint. However, Mr Seck was prepared to concede that the evidence should be allowed in subject to weight and the making of appropriate submissions. I note the subsequent detailed submissions advanced by Mr Seck on this issue and Mr Friend's response which are referred to above.
2. Section 14 of the Federal Magistrates Act 1999 (Cth) states:
   • 14. In every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:
   • (a) absolutely; or
   • (b) on such terms and conditions as the Federal Magistrates Court thinks just;
   • all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
   • (c) all matters in controversy between the parties may be completely and finally determined; and
   • (d) all multiplicity of proceedings concerning any of those matters may be avoided.
3. Section 3(2) of the Federal Magistrates Act provides:
   • The other objects of this Act are:
   • (a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial powers; and
   • (b) to enable the Federal Magistrates Court to use streamline procedures; and
   • (c) to encourage the use of a range of appropriate dispute resolution processes.
4. The authors including Allen Robinson SC, Grant T Reithmuller of the Federal Magistrates Court Practice and the CCH Editors draw particular attention to paragraph 14(d) which they state is in similar terms to s.23 of the Federal Court Act of Australia 1976. Importantly, s.14 simply provides a power to determine matters that are within the jurisdiction of the Court. Where a 'matter' involves issues or claims associated with a matter within jurisdiction of the Court, consideration must be given to s.18 in order to determine whether the Court will have accrued or associated jurisdiction with respect to the matter.
5. It is the learned authors' view that it is clear that the intention of Parliament is to provide the Court with sufficient powers to completely deal with a matter so as to avoid multiple proceedings. The Explanatory Memorandum states as follows:
   • 25. Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so. This provision is designed to avoid multiple proceedings arising from the same dispute between parties.
6. The authors refer to the decision in Rasomen Pty Ltd v Shell Company of Australia (1997) 75 FCR 216, where his Honour Drummond J considered the equivalent provisions of the Federal Court of Australia Act 1976, stating that:
   • "The expression 'matter', in the context of sec 22 and 23 of the Federal Court of Australia Act, is a term of wide import. It conveys, in the general context of curially determinable disputes and not just in the special context of sec 76(ii) the Commonwealth Constitution, the notion of a 'justicable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy': see Fencott v Muller (1983) 152 CLR 570 at 603 ( a decision on sec 86, in the form it took different from that which it now takes, but in which the majority of the Court said that the ambit of the jurisdiction conferred by the section on the Federal Court depended upon the meaning of 'any matter arising under any laws made by the Parliament' in sec 76(ii) the Constitution).
   • The jurisdiction conferred on this Court by sec 22 and 23 of the Federal Court of Australia Act is jurisdiction to determine the entire controversy involving the parties provided it is a controversy arising under Federal Law. The Court's jurisdiction can also extend to the determination of related but non-Federal causes of action: see sec 32 of the Federal Court of Australia Act and Fencott v Muller, although the question for present determination involves only causes of action arising under Federal Law in respect of which this Court is given jurisdiction".
7. The modern approach to litigation is to discourage interlocutory Applications because they are extremely time consuming and costly: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 per Martin CJ at [2]. A proper pleading must put a Respondent on notice of the case to be met and should sufficiently define the issues for decision so that preparation of the case and hearing can be controlled: State of Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499 per Drummond J at [12]; Dare v Pulham [1982] HCA 70; (1982) CLR 658 per Murphy, Wilson, Brennan, Deane and Dawson JJ at 664.
8. Rule 1.03 of the Federal Magistrates Court Rules notes the objects of the rules:
   • 1) The object of these rules is to assist the just, efficient and economic revolution of proceedings
   • 2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
     • To operate as informally as possible
     • To use streamline processes
     • To encourage the use of appropriate dispute resolution procedures.
   • 3) The Court will apply the Rules in accordance with their objectives.
9. The advancement of detailed arguments about jurisdiction during the substantive proceedings without prior notice is significant. The Application filed on 23 July 2009, contained a clear statement of what Mr Philip was seeking. Attached to that Application was a complaint form lodged with the Human Rights and Equal Opportunity Commission and the subsequent notice of termination. On 17 August 2009 a Notice of Appearance was filed by Susan Price of Bartier Perry, indicating that that organisation represented the Commissioner of Police. On 21 August 2009 at the First Court Date Directions hearing, the following orders were made:
   • 1. The Applicant is to file and serve his evidence by 11 September 2009.
   • 2. The Respondent is to file and serve its evidence by 9 October 2009.
   • 3. The matter is referred to a Registrar for mediation not before

9 October 2009 pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth) at the Law Court's Building, Queens Square, Sydney. 10. On 22 October 2009, the Court was advised by the Deputy District Registrar of the Federal Court of Australia that the matter was remitted for mediation on that date. The Applicant was present and was represented by Mr Friend, while Ms Price appeared for the Respondent. Mr Price apologised for the non-attendance of a representative of the New South Wales Police Service (who could not make it at the last moment). The Registrar advised that regrettably the mediation was unsuccessful and the matter needed to proceed to final hearing.

The matter was then listed for further directions on 13 November 2009. On 24 November 2009, the Court made further orders that: * 1. The Applicant to file a further affidavit within fourteen days. * 2. The matter be listed for a two day hearing commencing Thursday 11 March 2010 at 10.15am. 11. I note that the Federal Magistrates Court of Australia website contains the following information in respect of human rights applications : * What form is filed? (Application form) * The Applicant does not need to file an affidavit in support of an Application: sub-rule 41.02A2. * When is this form used? * Federal Matters under the Australia Human Rights Commission Act 1986 relating to complaints under the * Age Discrimination Act 2004 * Disability Discrimination Act 1992 * Racial Discrimination Act 1995 * Sex Discrimination Act 1984 * What is filed in response? (Response Form) * The Respondent does not need to file an affidavit in support of the Response: sub-rule 41.042 12. Also located on the website under the heading 'Practice Directions and Notices' there is a sub-heading: * Pleadings - points of claim * The grounds of an Application must explain briefly the basis on which the orders are sought. In most instances the use of an Application and affidavit will negate the need for pleadings but, where appropriate, pleadings will be ordered. This is particularly so in commercial litigation such as trade practices, copyright and industrial law Applications, and in some complex unlawful discrimination Applications. In such instance an Applicant may attach a pleading by way of points of claim. Such a pleading should observe the requirements of Federal Court Rules_, Orders 11 and 12. It should identify in summary form the material facts on which the Applicant relies, but not the evidence by which those facts are to be proved. All necessary particulars must be given._ 13. The Court did not receive a request from the Respondents to pursue any of these avenues in respect of pleadings so the matter proceeded to final hearing on the original Application. I believe matters in this jurisdiction are further complicated by the complaint to the Human Rights and Equal Opportunity Commission being filed by a self-represented litigant without assistance of a legal practitioner.

A significant number of matters that come before this Court have developed along a similar path. The significant issue concerns in terminology used by the self-represented lay individual adopting commonly used language which does not strictly satisfy the more technical structure of the legislation in each term as specific meanings that would not be apparent to the lay person. However, this is the case in this matter as the Complaint Form (Exhibit A1) was completed with the assistance of Mr Stephen Friend of Friend and Co. Lawyers.

This conflict has been previously considered in a number of decisions. In Gamma v Qantas Airways Ltd [2006] FMCA per Raphael FM at [9] * ...what one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constituted a different breach of an Anti-Discrimination Act that originally alleged or possibly considered by HREOC. It is also clear that what constitutes the 'complaint' is not just the written document, but all the facts and matters that are before the commission prior to the determination. But, the allegation made in proceedings cannot be substantially wider than those initially complained of. 14. In Vijayakumar v Qantas Airway Ltd [2009] FMCA 736; (2009) 233 FLR 369 per Scarlett FM at 93-114, whether the facts and issues pleaded were the subject of the terminated complaint: * [93] It appears to me that the case that the Applicant wishes to argue in his Amended Application is significantly different from his original claim. * [94] The jurisdiction of the court to hear the Application is determined by subs 46PO(3) of the Human Rights and Equal Opportunity Commission Act, which says: * The unlawful discrimination alleged in the Application: * (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or * (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. * [95] It is clear that s 46PO(3)(a) requires the Applicant to make the same allegations of fact that he made in the terminated complaint, although he may claim that they bear a different legal character, provided that the legal character now being claimed is not different in substance from that originally claimed (Charles v Fuji Xerox Australia Pty Ltd per Katz J at [38]). * [96] Again, s 46PO(3)(b) allows the Applicant to allege different facts from those alleged in the terminated complaint, provided that those facts are not different in substance. However, the Applicant may claim that the facts now being alleged have a different legal character, even if that legal character is different in substance, provided that the legal character arises out of those facts (Charles v Fuji Xerox Pty Ltd at [39]). * [97] As Raphael FM held in Gama v Qantas Airways Ltd at [9]: * What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constitutes a different breach of an Anti-discrimination Act than that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the "complaint" is not just the written document but all those facts and matters which are before the commission prior to the determination. But the allegations made in proceedings cannot be substantially wider than those initially complained of. * [98] Thus, the court must begin by considering the "parameters of the complaint" (Hollingdale v Northern Rivers Area Health Service per Driver FM at [10]). * [99] Clearly, in the present case, the court must consider the Applicant's claim after it was amended and as it was when it was terminated by HREOC on 11th May 2007. In my view, the claim that the Applicant now wishes to bring in the Amended Application and Points of Claim is significantly different, to the extent that it is outside the limits of subs 46PO(3). * [100] The Applicant originally claimed that his disabilities were injuries to his left knee and arm, as well as a sleep disorder. Depression and post-traumatic stress disorder, which he now seeks to claim, were never mentioned in his complaint to HREOC. It is not until the Points of Claim that the Applicant claims discrimination on the basis of these disabilities. * [101] The additional disabilities that the Applicant now claims, and the discrimination directed towards him on that basis, are substantially different from those originally claimed in the terminated complaint. There does not appear to be any difference in the palliative and therapeutic devices and auxiliary that the Applicant claims to have required. * [102] I am therefore satisfied that the unlawful discrimination sought to be claimed in the Amended Application is not the same as, or the same in substance as, the unlawful discrimination the subject of the complaint that was terminated by HREOC. Accordingly, it does not come within the ambit of s 46PO(3)(a). * [103] Further, the Applicant now seeks to rely on a contract between himself and the Respondent subject to the Respondent's Conditions of Carriage. This was never raised in the claim terminated by HREOC. * [104] The Applicant also seeks to claim in his Amended Application that the Respondent unlawfully discriminated against him in the provision of access to premises on the grounds of his disability and contravened the Disability Standards for Accessible Public Transport 2002. These issues were never raised in the claim terminated by HREOC. * [105] The Applicant's claim to HREOC alleged that the Respondent had unlawfully discriminated against him in breach of ss 5, 6, 11 and 24 of the Disability Discrimination Act. He refers to those same four sections in his Application filed on 8th June 2007. * [106] He now seeks to widen his case to claim unlawful discrimination contrary to ss 4, 7, 12, 23, 31 and 32 of the Act. * [107] The claim of discrimination in access to premises is made under s 23 and the claim of failure to comply with the Disability Standards for Accessible Public Transport Guidelines is made under s 32 of the Act. * [108] I accept the Respondent's submission that ss 23 and 24 of the Act are mutually exclusive. Subsection 23(1) relevantly provides: * It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that person's associates: ... * (b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; ... * [109] Subsection 24(1) relevantly provides; * It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of that other person's associates: ... * (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to that other person; or * (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person ... * [110] It follows that the Applicant cannot rely on essentially the same conduct in a claim under two mutually exclusive sections. * [111] The premises which the Applicant claims that were the subject of the Respondent's refusal to allow him access were constituted by an aircraft on the ground in India. The refusal alleged by the Applicant happened entirely in India, at Mumbai Airport. The Applicant also faces the difficulty in establishing that the Disability Discrimination Act has an extra-territorial effect, which will prove to be an insuperable hurdle. * [112] In my view, leaving aside the question of extra-territoriality for the time being, the facts upon which the Applicant now seeks to bring his claim are not the same or substantially the same as those in the complaint terminated by the Human Rights and Equal Opportunity Commission. * [113] The proposed amendments to the Application are outside the limits of s 46PO(3) of the HREOC Act. Under s 46PO(3): * The unlawful discrimination alleged in the Application: * (a) must be the same as (or the same substance as) the unlawful discrimination that was the subject of the terminated complaint; or * (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. * [114] Where the unlawful discrimination alleged does not meet the test in subs 46PO(3), the court has no jurisdiction to hear the Application. As I am satisfied that the unlawful discrimination alleged in the Amended Application and the Points of Claim does not come within the boundaries of s 46PO(3), it follows that granting leave to amend the Application would be futile. 15. Throughout this period there was no Response filed by the Respondent. The issue of particulars of the claim or the jurisdiction was not raised prior to hearing and nor was there any request for directions or orders. If the complaint was lodged without the assistance of a legally qualified person then the arguments advocating a more informal approach to handling the proceedings would warrant consideration. However, this matter does not fall into that category because Mr Friend prepared or assisted in the preparation of both the complaint to HREOC and the Application initiating these proceedings. I have formed the view that the word 'accent' is the specific issue that is key to the complaint and the focus of the evidence. However, the issue of 'ethnic origin' raised in the complaint and "African race" on the Application are used in a manner that is contrary to the established authority as to the usage of these terms in a Racial Discrimination Act context. I note Mr Seck's submission that the issue should be confined to 'accent' concession but I believe the Court is required to consider the aspects of 'ethnic origin', 'African race' and 'race' more generally before the matter can be finalised.

1. The Applicant, Mr Philip, has the onus of proof in proving the alleged unlawful discrimination: Sharman v Legal Aid QLD (2002) 115 IR91 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48]. The Applicant must prove allegations according to the civil standard of proof established under s.140 of the Evidence Act 1995 (Cth). This provision codifies the common law position in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at p.361-2 that the strength of evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved, and in particular, by reference to the gravity of the matters in question: Employment Advocate v Williamson (2008) 1111 FCR 20 at [65]; Qantas Airways Limited v Gamma [2008] FCAFC 69; (2001) 167 FCR 537 per Branson J at [128].
2. There must be a higher 'degree of persuasion of the mind' of the existence of facts alleged identified in Briganshaw v Briganshaw to prove the alleged breach of the alleged Racial Discrimination Act: Dutt v Central Coast Area Health Services (EOD) [2003] NSWADTAP 3; State of Victoria v McKenna (1999) 140 IR256 at 181; Sharma v Legal Aid QLD (supra); Qantas Airways Limited v Gamma (supra). The principle reflects the conventional perception that people do not ordinarily engage in serious conduct and that a court should not make a finding that a person has been guilty of such conduct lightly: Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1993) 110 ALR 449 at 449 - 50.
3. Mr Seck submits Mr Philip has made serious claims of unlawful racial discrimination against the Respondent (and the office concerned).

Mr Philip alleges that senior NSW Police Officers decided to exclude him on the basis of race. These allegations are serious in nature and reflect heavily on the personal character: Sharman v Legal Aid QLD (supra) at 98; Qantas Airways Limited v Gamma (supra) at 573-576. In light of the grave nature of the allegations and the significant consequences on making such adverse findings, the Court must be reasonably satisfied that the evidence is of sufficient strength to support the serious claims made.

The concept of Race, Colour, Ethnic Origin and National Origin

1. Mr Seck raises the complaint that Mr Philip has used the terms 'race', 'colour', 'ethnic origin' and 'national origin' on a loose and interchangeable basis in various documents during these proceedings. Mr Seck contends that each of these terms have independent and precise meanings. Each represents separate grounds of complaint and should not be considered as a single overarching concept. The Commonwealth Act can be contrasted with the Anti-Discrimination Act 1977 (NSW) where s.4 defines the term 'race' to include "colour, nationality, descent, ethnic and ethno-religious or national origin" and each of the related concepts being each treated as separate ground. The Applicant's complaint to HREOC concerns his 'ethnic origin'. However, Mr Philip's primary affidavit states that he was born in Nigeria, is African and is black.

Mr Seck submits that Mr Philip is neither consistent nor precise in identifying the attribute alleged to give rise to his claim. 2. Mr Seck acknowledges that the concept of race and the cogent concepts of colour, decent, ethnic origin or national origin as used in the Racial Discrimination Act are unhelpfully not defined in either the Racial Discrimination Act or in the human rights instrument the International Convention on the Elimination of Racial Discrimination on which it is based. Even assuming that Mr Philip can sustain his various claims, it is necessary to examine each alleged ground separately. Unless Mr Philip has proved the particular ground or attribute that is the basis of the action, then his claim must fail. 3. Mr Friend advances the argument that 'race' should be understood under the Racial Discrimination Act in the popular sense, rather than as a term of art. In support of this contention, he referred the Court to the decision in Williams v Tandanya Cultural Centre [2001] FMCA 46; (2001) 163 FLR 203 per Driver FM at [21] where his Honour states: * The word 'race' is a broad term. Also, in addition to race, the RDA proscribes discrimination based upon the national or ethnic origins or descent. It will be apparent to anyone with even a rudimentary understanding of Aboriginal culture and history that the Australian Aboriginal is not a single people but a great number of peoples who are collectively referred to as Aboriginals. This is clear from language and other cultural distinctions between Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not simply against discrimination against 'Aboriginals' but also discrimination against particular Aboriginal peoples.

Further, the distinction on race, ethnic or national origin is really made of the group regarding itself as being 'viewed by others as a distinct community of virtues and certain characteristics': Madla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548. Mr Philip is from a group of African peoples geographically based in Nigeria with a shared culture and geographic origin. He would be popularly regarded as being from the black African race of Nigerian national origin.

1. Mr Friend submits the term 'national origin' is interpreted by the Courts as being distinct from nationality or citizenship: Australian Medical Council v Wilson (1996) 68 FCR 46 per Sackville J where his Honour approved the judgment of Lord Cross in Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342, where his Honour held:
   • There is no definition of national origin in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as 'a nation' - whether or not that constitutes a sovereign state.
2. Mr Friend contends that nationality and national origin are not the same thing. The fact that someone is an Australian Citizen does not detract from his or her national origin. The fact that Mr Philips grew up in Nigeria makes him of Nigerian national origin, speaking with an accent commensurate with that national origin.

1. Mr Seck, in his written submissions, submits that no Australian court or tribunal has sought to advance a precise or exhaustive definition of 'race'. Overseas courts have considered the definition of race and eschewed scientific and sociological definition of race. The case law states that race should be understood in the popular sense rather than an anthropological or biological sense: Ealing London Borough Council v Race Relations Board [1992] AC 342; King-Ansell v Police [1979] 2 NZLR 53.
2. Race is now considered essentially an imprecise and arbitrary social label which is the product of cultural and social construction: see Montague, A. "Man's most dangerous myth: The Fantasy of Race, 6th Edition, AltaMira Press, 1997, pp.46-48. Even the traditional biological concept of the race based on essential genetic differences has been doubted in recent times and has been abandoned as having any scientific value: see discussion in Long, J.C and Kettle, R.A (2003) "Human Genetic Diversity and the Non-existence of Biological Race", Human Biology 75, 449 - 71; Marks, J (2007) "Grand Anthropological themes" in American Ethnologist 34 (2): 234.
3. In King-Ansell v Police (supra), the New Zealand Court of Appeal examined whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity that must be shared by members of the community. Woodhouse J stated (at 536):
   • ...[the] common usage [of the term race] has long enabled constant reference to be made to biologically different peoples as a single race. For example, it is a natural usage of the word to speak of the English race or the Slavs as a race, or the Germans. It is a meaning which concerned, not the genetic process, but which shared characteristics of a social-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations. And when the purpose of language of the Race Relations Act is considered as a whole, I am satisfied the way in which the term is intended to be used.

In other words, the notion of race imports a notion of self-recognition by members of the group that they belong to a particular race. However, to refer to race as commonly understood in the community simply begs the question of taxonomy rather than give context to its meaning.

1. Mr Philip's submissions claim that he is from a group of African people geographically based in Nigeria with a shared cultural and geographic origin and would be properly regarded as being from a black African race of Nigerian national origin. Even on its popular meaning, this proposition is a gross over-simplification. Africa is a large continent containing a diverse people of many different ethnic and national origins. Africa does not comprise a single racial group. In North Africa, many people are of an Arabic background. In South Africa there is a significant number of decedents of white settlers and in sub-Saharan Africa there is a diversity of racial and ethnic groups.
2. It is submitted that to describe oneself as African represents no more than a statement of belonging to, or originating from a continent. The composite term advanced by Mr Philip that he is a 'black African' is no more than a reference to his colour rather than his continental origin.
3. The phrase 'black African' does not reflect the significant variants within even black populations in Africa. Mr Philip seeks to dismiss a large number of different ethnic groups and ignore the entire history and tradition of various groups in Africa by adopting superficial labels. In reality, the term 'black African' is a convenient, but highly flawed, social construct designed to categorise people by reference to a simplistic notion of race applied by the dominant white group to 'other' persons of a different skin colour outside Australia.
4. Mr Seck contends that no other evidence has been adduced regarding Mr Philip's actual race other than the blatant attempts to make bare assertions in submissions. At its highest, Mr Philip's claim that his race is African is simply a statement of self-assessment rather than being shared by persons within the community. It does not meet the test of demonstrating Mr Philip's race and must be rejected. It is submitted that it would be dangerous to come to an intuitive conclusion about Mr Philip's race without a proper basis or actual evidence.

Mr Philip must assert his 'race' in his claim. It then must be tested to determine whether his race was the ground for discrimination. While a person's race is not a matter of legal proof, the Court should not speculate about his race or be required to conduct its own enquiries on the issue.

1. Mr Seck submits that during cross-examination Mr Philip claimed that his complaint concerns discrimination on the basis of his skin colour as 'black' because his photograph was attached to the Application form. The evidence was as follows:
   • Seck: So your complaint is about the opportunity not to progress in the Application process to even get to the stage of undertaking the degree. Is that correct?
   • Philip: Yes, the opportunity was not- was not given to me because of the way they treated me because they feel I'm not qualified by looking at my photographs. After they demanded that I should send my photographs to them they look at me and say look, this is not the person they need. That's why everything goes like that. I mean, if I was given the opportunity before they assess me and they notice that I'm not qualified I will be fine, like I was not given the opportunity because of the - my skin colour.
   • Seck: Alright, so your complaint is about your skin colour being black. Is that correct?
   • Philip: That's right, yes.
   • (Transcript: 11/03/2010, p.18)
2. Neither his complaint nor his Application asserts colour as a ground for the alleged unlawful discrimination. Even though the evidence refers to Mr Philip as being 'black' and that his wife is a 'white Australian woman' (Mr Philip's primary affidavit, para.2), it is not clear that

Mr Philip presses this ground of complaint. It is noted that the submissions for Mr Philip do not address this matter. 3. Mr Seck submits that self-evidently, Mr Philip's skin colour is not controversial. However, the Respondent opposes any change to

Mr Philip's claim to include colour as a ground (to the extent that such a change is capable of being made during cross-examination). The reference to Mr Philip being 'black African' (Applicant's submissions, para.10 & 17) appears to be nothing more than a simple (ambient flawed) assertion of Mr Philips ethnic origin rather than a reference to his colour as an independent ground of complaint. 4. Mr Seck contends that the undisputed evidence is that no explicit reference is ever made to Mr Philip's skin colour during any conversation. Without any express reference to colour, it seems that the ground of colour adds little, if anything, to Mr Philip's complaint: Velagapudi v Symbion Pharmacy Services Pty Ltd [2006] NSWADT 329; McLeod v Power [2003] FMCA 2 at [28] and [55]. Mr Seck submits that the Court should reject colour as a separate ground of complaint.

1. Mr Seck acknowledges that unlike the term 'race', the term 'ethnic origin' has been subject to significant judicial scrutiny. Courts and tribunals have held that a collection of people establish an 'ethnic group' for the purposes of the term 'ethnic origin' where the members of the group must have a social identity, in both their own eyes and the eyes of others in the community: Mandla v Dowell Lee (supra) at 561-565; King-Ansell v Police (supra) at 543; Commission of Racial Equality v Dutton [1989] 1QB783 at 799; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at 271-273.
2. Essential characteristics of an ethnic group include shared long standing characteristics drawn from a common history such as customs, beliefs and traditions which the group consciously keep alive and the recognition of a unique cultural condition, including but not limited to family and social customs, manners and religious observance: Mandla v Dowell Lee (supra) at 562. The kind of matters relevant, but not essential to the finding of an ethnic group include a common geographic origin, a common language, a common literature, historical persecution as a minority by a majority and a common religious difference to neighbouring areas: Mandla v Dowell Lee (supra) at 562.
3. The key basis for the distinction of an ethnic group is that a person's distinct social identity must be underpinned by shared historical and cultural antecedence as a cohesive group and its continuing recognition of the group's social practices and observances. The term 'ethnic origin' has been found to include Jewish people: Miller v Werthein [2002] FCAFC 156 at [14]; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [47]; Seiks, see Mandae v Dowell Lee (supra) at 560 - 565 and Roma, see Commission of Racial Equality v Dutton [1988] EWCA Civ 17; [1989] QB 783 at 798 - 802. However, it does not include Muslims, see Nyazi v Rymans Ltd [1988] VAT 86, Carn v Commissioner, Department of Corrective Services [2002] NSWADT 131, or Rastafarians, Dawkins v Department of Environment [1993] ICR 517 on the account that both are religions for a broad range of ethnic groups.
4. Mr Seck submits that Mr Philip does not identify expressly or precisely his ethnic origin. Assuming that the Application is a claim of unlawful discrimination on the grounds of ethnic origin (even though Mr Philip refers to race), neither of these descriptions meet the conventional definition. The term 'Black African' is merely a synthetic description of Mr Philip's colour and continental origin. It is self-evident that South Africa (or even Sub-Saharan Africa) is not a homogeneous culture but comprises of a large number of social groups with a rich body of diverse customs, beliefs and traditions. African history demonstrates that war and instability has been rooted in ethnic conflicts between blacks such as the case of Rwanda and Sierra Leone.
5. Mr Seck submits that Mr Philip's place of birth does not represent a statement of his ethnic identity. Nigeria is a geo-political unit created as an outcome of colonial division of spoils amongst European nations during the nineteenth and twentieth centuries; after it gained independence from the United Kingdom, Nigeria became a nation state exercising a claim to sovereignty over territory. Nigeria exists as an independent polity rather than a single common social group with shared customs and beliefs.
6. Mr Seck contends that Mr Philip ought to have identified a specific ethnic group to which he belongs. The Central Intelligence Agency Fact Book (https://www.cia.gov/library/publication/the-world-factbook/geos/ni.html) states that Nigeria is comprised of more than 250 ethnic groups, more than nearly any other nation in Africa. The following are the most populous: Hausa and Fulani 29%; Yoruba 21%, Igbo (Ibo) 18%;

Ijaw 10%; Kanuri 4%; Ibibo 3.5% and; Tiv 2.5%. Each of these ethnic groups has its own distinctive social, cultural and linguistic characteristics. Mr Seck acknowledges that Mr Philip claims that he speaks Ibo

(Mr Philip's primary affidavit, para.2) but language is not a proxy for or evidence of a person's ethnic origins. It is plain that a person who speaks a language does not automatically assume that language's historical connection with that ethnic group. For example, a person who speaks English is not necessarily from an English ethnic origin. Rather a person's language and accent is a product of a complex mix of social, cultural, economic and political factors. 7. Mr Seck argues that without Mr Philip identifying his ethnic origin, the Court cannot make a finding on this issue. In the absence of any proper identification of or evidence of Mr Philip's ethnic origin, the Court can only speculate about Mr Philip's ethnic origin. It follows that no finding can be sustained on discrimination on the ground of

1. Mr Seck submits that Mr Philip does not refer to 'national origin' as a ground of unlawful discrimination in his complaint or in his Application. Mr Philip mentions 'national origin' as a ground of his claim for the first time in his written submissions (para.18-19). Mr Philip should not be allowed to change his case during the hearing particularly without seeking formal leave of the Court to amend his Application.
2. Mr Philip asserts that his national origin is Nigerian founded on the basis that he 'grew up in Nigeria' (submissions, para.18). He does not assert that his national origin is Nigerian by virtue of his place of birth. However, no evidence has been adduced of where he grew up although he says that he lived in Germany for two or three years before coming to Australia about ten years ago (primary affidavit, par. 2-3). Mr Philip claims that he speaks with 'an accent commensurate with his national origin (submissions para.19). Mr Seck contends that national origin refers to a person's place of birth and the national origin of his or her parents: Ealing London Borough Council v Race Relations Board (supra) at 365- 366; Australian Medical Council v Wilson (supra) at 77; Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 209 - 211; Bropho v State of Western Australia [2007] FCA 519 at 303. Lord Cross stated in Ealing at 365:
   • There is no definition of 'national origin' in the [Race Relations] Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a 'nation' - whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question; but it may also sometimes arise because the parents have made their home among the people in question (emphasis added).
3. Mr Seck submits that national origin does not refer to a person's nationality which is a legal status acquired by virtue of citizenship of a country: Australian Medical Council v Wilson (supra at 75); Macabenta v Minister for Immigration and Multicultural Affairs (supra at 210-211); Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455; AB v NSW Minister for Education and Training [2003] FMCA 16 at [13] - [14]; AB v NSW [2005] FMCA 1113; (2005) 194 FLR 156 at 174; Supra v Minister for Transport Services [2006] NSWADT 83 at [42] - [75]. National origin does not emanate from the characteristics developed by virtue of growing up or living in a particular country. It is confined to immutable characteristics acquired or existing at the time of birth: Commonwealth v McEvoy [1999] FCA 105; (1999) 94 FCR 341 at 352. A single place fixed at a single point and cannot be altered or acquired by immigration, residency, education, customs, habits or language.
4. Mr Seck submits that Mr Philip's assertion that he has a national origin by virtue of growing up in Nigeria is misconceived. Mr Seck acknowledges that Mr Philip has a Nigerian national origin but it is not acquired by his place of residence during his childhood, but by his place of birth.

1. Mr Friend, in his oral submissions, invites the Court to accept that

Mr Philip's accent was not such that it would be impossible for him or be very difficult for him to be understood in the common acts of working in a workplace. The Court was invited to take this view having had the benefit of hearing Mr Philip give evidence and be cross-examined for a period of about two hours. Mr Friend contends that

Mr Philip gave his evidence in a forthright manner although he was clearly a person who was unfamiliar with court process and court proceedings. Mr Friend acknowledges that Mr Philip has an accent that can be understood but also could be modified or improved if given an opportunity to do so. 2. Mr Seck submits that Mr Philip's principle grievance appears to be at the NSW Police Force engaged in unlawful racial discrimination by refusing to progress his Application on the ground of his 'accent'. His complaint to HREOC expressly claimed that he was denied employment because of his accent which pertained to his ethnic origin. Mr Philip takes this point a step further by submitting that because he grew up in Nigeria, makes him of Nigerian national origin speaking with an accent commensurate with that national origin (submissions para.19). Mr Philip claims, ambient implicitly, that the accent is a characteristic of his race, colour, ethnic or national origin. However, Mr Philip does not expressly address the critical issue of whether a person's accent can be a basis of claiming unlawful discrimination under the Racial Discrimination Act. This issue encompasses the legal issue of whether the notion of 'race' and its allied grounds under the Racial Discrimination Act extends to actual or imputed characteristics of race and the factual question of whether accent is, in fact, a characteristic of race. Mr Seck made detailed written submissions in respect of this issue and addressed the question in the following way.

Does the Racial Discrimination Act extend to racial characteristics?

1. Mr Seck submits that under the Racial Discrimination Act, the notion of race, origin, ethnic origin and national origin does not expressly extend to the characteristics generally appertaining to people of that race or a characteristic generally imputed to people of that race. The absence of the extension of race to include 'racial characteristics' under the Racial Discrimination Act can be contrasted with other federal discrimination legislation. For example:
   1. Sex Discrimination Act 1984, ss.5(1)(b) and (c); 6(1)(b) and (c); 7(1)(b)and(c); 7A(b)(ii) and (iii);
   2. Disability Discrimination Act 1992, definition of disability s.4; s.14(b)(ii) and (b)(iii);
   3. Anti-Discrimination Act 1977 (NSW), s.7(2);
   4. Anti-Discrimination Act 1991 (QLD), s.8;
   5. Equal Opportunity Act 1984 (SA), s.51(c);
   6. Anti-Discrimination Act 1998 (TAS), s.14(2);
   7. Equal Opportunity Act 1984 (VIC), s.7(2);
   8. Equal Opportunity Act 1984 (WA), s.36(1);
   9. Discrimination Act 1991 (ACT), s.7(2); and
   10. Anti-Discrimination Act 1992 (NT), s.20(2).
2. It is submitted that it is an extension of a prohibited ground aimed to address the stereotyping of a particular group of persons on the basis of actual or imputed distinguishing or idiosyncratic traits: Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 134; Boehringer Ingelheim Pty Ltd v Dreddrop [1984] 2 NSWLR 13 at 18 and 21; Commonwealth v Human Right and Equal Opportunity (Dopking no.1) [1993] FCA 547; (1994) 46 FCR 191 at 207. A characteristic appertaining to a person of a particular status is one that the vast majority of persons of that status have. A characteristic imputed to a person of a particular status is one that the vast majority of persons of that status are believed to have (whether or not it is so).
3. Mr Seck submits that under State and Territory Anti-Discrimination legislation, there have been a number of cases where a person's accent has been found to be a characteristic that appertains or is imputed generally to a person of a particular race: Luffyt v Capital Television Pty Ltd (1994) EOC 92 - 557 at 77,067; Campos v Tempo Cleaning Service (1994) EOC 92 - 648 at 77,431- 77, 432; Fernandez v State of New South Wales [1999] EOC 92-989 at [55] - [59]; Ross-Teigan & Anor v Wiltshire & Anor [2002] QADT 6 at 5-6; Chew v Director General of the Department of Education and Training [2006] WASAT 248 at [58]; Perera v Commissioner of Corrective Services [2007] NSWADT 115 at [111] - [113].
4. By contrast, the Racial Discrimination Act does not contain an express prohibition against racial discrimination on the basis of characteristics generally associated with, or imputed to, people of a race, colour, ethnic or national origin. In light of the express inclusion of this extension under the other Federal discrimination legislation, and the States and Territory racial discrimination provisions, this omission from the Racial Discrimination Act strongly suggests that characteristics cannot be a ground of complaint. Without the extension of the concept of race, to actual or imputed characteristics, the Respondent submits that Mr Philip cannot sustain a claim of direct discrimination on the ground of accent.

1. Mr Seck advances the argument that if the Racial Discrimination Act extended the prohibition to characteristic appertaining or imputed generally to a group of race or corresponding concepts, it is messy to adduce evidence in support of the claim of membership: Thompson v Orica Australia (2002) 116 IR186 at 229 - 230. This is a question of fact: Monash University v Kapoor [1999] VSC 463 at 55; Walker v State of New South Wales [2003] NSWADT 13 at [42] - [47]. It is submitted that Mr Philip has not done so other than by simplistic assertion that accent 'pertains to' his race, ethnic or national origin.

By not addressing any evidence, let alone giving any logical reasoning linking Mr Philip's race to his accent, highlights Mr Philip's lack of proof and also glibly ignores the complex relationship between, on the one hand, accent and language, and on the other hand, race, ethnic origin and national origin. 2. Mr Seck submits that if Mr Philip seeks that the Court give judicial notice to his accent, a characteristic that pertains or is imputed generally to people of his race, colour, ethnic origin or national origin, he must satisfy that it is a matter of common knowledge or capable of verification by reference to an authority that cannot be reasonably questioned in accordance with s.144(1) of the Evidence Act 1995 (Cth): Walker v State of New South Wales (supra) at [46]; Howe v Qantas Airways Ltd [2004] FMCA 242 at 252 - 255. Both the academic literature and the available evidence demonstrate that a person's accent is not a matter that distinguishes a person's race, colour, ethnic origin or national origin. 3. Empirical research on this topic demonstrates that the degree of a person's accent, where English is a second (non-native) language, chiefly depends on the age that a person begins learning English and the degree of continued use of the person's native non-English language: Flege J.E., Munro, M.J., and MacKay I.R.A (1995) "Factors Affecting Strength of Perceived Foreign Accent in A Second Language" Journal of Acoustic Society of America 75(5), Part 1, May 1995. The academic literature rebuts the perhaps intuitive but misconceived submission on behalf of Mr Philip that a person's accent is 'commensurate' with a person's race, colour, ethnic origin or national origin. Rather a person's accent is chiefly influenced by a person's age and place where the person started learning English and the use of a second language at home. In turn, a whole range of factors are relevant to the analysis including the age of the migration to the English speaking country, the social and cultural environment in the home and the local community, the accent and language of one's parents and other members of the family and access to and the quality of English as a second language teaching. None of these factors pertain to a person's immutable characteristics of race, colour, ethnic origin or national origin. 4. Mr Seck submits that the Court should reject Mr Philip's invitation to substitute his accent as a surrogate of his race, colour, ethnic origin or national origin. It is neither permissible under the Racial Discrimination Act as a matter of law, nor is it supported as a factual conclusion based on the available evidence based on the academic research on the issue.

1. In the Application filed in this Court on 23 July 2009 the sections stated that are relevant to this claim include ss.9, 15, 18 and 18A of the Racial Discrimination Act. I note that neither the complaint nor the grounds of Application explain the basis on which Mr Philip relies on this section. However, in the Applicant's written submissions, the allegations of facts used to support his claim of both direct and indirect discrimination under s.9 of the Racial Discrimination Act appear (submissions, paras.9-15)

Direct discrimination under s.9(1)

1. Section 9(1) of the Racial Discrimination Act provides:
   • (1) 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. Mr Seck submits that this section contains both a definition of Racial Discrimination and a substantive provision which extend the area in which it is unlawful to discriminate on the ground of race to any act based on race which interferes with the enjoyment of any human right or fundamental freedom in the political, social, cultural or any other field of public life. It replicates the term of the International Convention on the Elimination of Racial Discrimination which Australia ratified under s.7 of the Racial Discrimination Act. The Racial Discrimination Act's preamble makes plain that it is intended to give effect to Australia's international legal obligations under that convention.

Indirect discrimination s.9(1A)

1. Section 9(1A) extends the prohibition under s.9(1) to indirect racial discrimination. Section 9(1A) states:
   • (1A) Where:
   • (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
   • (b) the other person does not or cannot comply with the term, condition or requirement; and
   • (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
   • the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
   • (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
   • (3) This section does not apply in respect of the employment, or an Application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
   • (4) The succeeding provisions of this Part do not limit the generality of this section.
2. The learned authors of Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Limited, indicate that indirect discrimination is focused on the impact of rules, practices, or policies that are applied equally but have a disproportionate impact on those with particular attributes. Indirect discrimination has been referred to as 'practices which are fair in form and intention, but discriminatory in impact and outcome': The Secretary of the Department of Foreign Affairs and Trade v Styles & Anor [1989] FCA 342; (1989) EOC 92-265 at 77, 636. Rules, practices or policies may be long standing and it is only when they are analysed that any discriminatory impact becomes visible. It is not necessary to prove an intention to disadvantage a particular individual or group for indirect discrimination to occur.
3. In indirect discrimination, the following aspects must be proven:

1. a person must impose a term, condition or requirement on the complainant; 2. the term, condition or requirement is not reasonable in the circumstances;

1. a complainant does not or cannot comply with that term, condition or requirement; and

1. the requirement had the effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, decent or ethnic or national origin as the complainant of any relevant human right or fundamental freedom.

Section 15 of the Racial Discrimination Act

1. Section 15 of the Racial Discrimination Act makes it unlawful to engage in Racial Discrimination in an area of employment. Discrimination for the purposes of these specific prohibitions will be unlawful when a person is treated less favourably than another, by reason of the first person's race, colour or ethnic origin. The section states:
   • Employment
   • (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
   • (a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
   • (b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
   • (c) to dismiss a second person from his or her employment;
   • by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
   • (2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
   • (3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
   • (4) This section does not apply in respect of the employment, or an Application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
   • (5) Nothing in this section renders unlawful an act in relation to employment, or an Application for employment, in a dwelling-house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
2. Section 15(1)(a) applies where an employer refuses or fails to employ a person for work which is 'available' and for which he or she is 'qualified'. It has a limited scope and applies to hiring employees but does not apply to discriminatory recruitment practice: Kummle v Commonwealth [1998] HREOCA 34; Hunter R., Indirect discrimination in the Workforce (Sydney): Federal Press, (1992) p.68; Williams v State of South Australia (1989) EOC 92-283.

Section 18 and 18A of the Racial Discrimination Act

1. The learned authors of Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Limited at 4-310 indicate that most occurrences in life have multiple causes. This is often the case when complaints of Discrimination on a particular ground are made. The Tribunal concerned is faced with evidence of a number of possible causes for a discriminatory act and must then determine whether the discriminatory act was based on the alleged ground, such as race, so as to make it unlawful. All Australian Equal Opportunity Legislation specifically deal with the situation of there being two or more grounds for the performance of an act. The Racial Discrimination Act provides that where an act is done for two or more reasons and one of the reasons is race, colour, decent or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act, for the purposes of Pt II (Prohibiting Certain Acts of Discrimination) the act is taken to be done for that reason. Prior to this provision coming into effect by amendment which commenced on

22 December 1990, the grounds covered by the act had to be the dominant reason for the doing of a discriminatory act. 2. Section 18 states: * Acts done for 2 or more reasons * 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 states: * Vicarious liability * (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. * (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

1. Mr Friend, in his written submissions, acknowledges that Mr Philip's evidentiary case relies on drawing inferences to demonstrate the causal connection between the NSW Police alleged 'refusal to give the Applicant a fair go in assessing his speech and accent in terms of his employment' and Mr Philip's race, colour, ethnic or national origin (written submissions, para.24-37). The detailed argument advanced in support of this contention is examined in detail below, however the immediate issue is the consideration of principles relevant to the drawing of inferences in discrimination cases. In Sharman v Legal Aid (QLD) [2002] FCAFC 196; 115 IR 91 at [40] the Full Federal Court found that individual pieces of evidence ought not be considered in isolation but the accumulative effect of the circumstances must be considered provided each is established as fact.
   • [40] It is for the Applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.
2. The issue was again considered more recently in Gama v Qantas Airways Limited (No.2) [2006] FMCA 1767 at [6] - [9] Raphael FM found that an inference must be a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts.
   • Law relating generally to the drawing of inferences
   • [6] Brennan and McHugh JJ in G v H [1994] HCA 48; (1994) 124 ALR 353 defined an inference in the context of judicial decision-making as.
     • a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.
   • [7] An inference may only be reasonably drawn upon the basis of facts which have been established by the Applicant in evidence such that "it is more probable that it exists than that it does not": per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301. Where an Applicant claims an inference should be drawn:
3. Mr Seck submits that an inference may only be reasonably drawn on the basis of facts that have been established by an Applicant in evidence such that:
   • ...is more probable that it exists than that it does not: Carr v Baker (1936) 36 SR(NSW) 301.
4. For an inference to be drawn, it must follow from given premises as certainly or probably true: Nominal Defendant v Owens (1978 - 1979) 22 ALR 128 at 130, citing Street CJ in Gurnett v Macquarie Stevedore and Co. Pty Ltd (1955) 72 WN(NSW) 261 at [264].
5. No inference can be drawn from conflicting conjectures of equal degrees of probability where reasons of equal sufficiency or insufficiency exists for other explanations: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads and Traffic Authority of NSW & Anor [2002] NSWCA 133. The state of facts that leads an observer to think that an Applicant's version is a possible version of what occurred is insufficient as this amounts to conjecture: Carr (supra) at 206 - 307; Jones v Dunkel ([1959] HCA 8; 1959) 101 CLR 298 per Kitto J at 305; Peter Li v Joseph Eleizer (1997) New (unreported), NSWSC 14516 of 1996;

1 May 1997 at [3] - [7]. 6. Mr Seck submits that where an alternative explanation for the decision or even where no explanation is given, the Court ought not to draw an adverse inference that the conduct occurred for an unlawful discriminatory reason: Department of Health v Arumugham [1988] VR319 per Fullagher J at 330 where his Honour stated: * If all that is proved, by inference or otherwise, in absence of explanation, is less than all the elements of proof required for the complainant to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty but that is all. 7. An adverse inference should not be drawn that the conduct occurred on the basis of a prohibited characteristic unless there is sufficient evidence to reject all innocent explanations for that conduct: State of Victoria & Ors v McKenna [1999] VSC 310; (1999) 140 IR 256 at [42]. Given the serious nature of the allegations, an inference may only be drawn in circumstances "such as to fairly raise in an unsuspicious mind" that the inference of unlawful discrimination as the "probable explanation for the different treatment": KLK Investments Pty Ltd v Riley (No.1) (1993) 10 WAR 523; EOC 92 - 525 at 79, 668.

1. Mr Friend advances that the evidence given by Mr Philip himself is critical. Mr Philip gave evidence from the witness box for approximately two hours. Mr Friend acknowledges that Mr Philip has an accent but it is an accent that could be modified or improved if he was given an opportunity to do so. Such an opportunity should have been provided to Mr Philip.
2. Mr Philip freely acknowledged in the witness box that he was aware that he was only at the initial steps in the process. He had passed stage one in satisfying the entry requirements to Charles Sturt University and had embarked on stage two, which was the professional suitability Application and that he still had a long way to go, but there was a loss of chance of him becoming a recruit.
3. Mr Friend drew the Court's attention to Mr Philip's evidence under cross-examination, where he denied he was rude or belligerent. The evidence was as follows:
   • Mr Seck: Have you read Ms Faber's affidavit in these proceedings, Mr Philip?
   • Mr Philip: Yes, yes I do.
   • Mr Seck: And she said you were irate. Do you remember her saying that?
   • Mr Philip: Yes
   • Mr Seck: That's correct, isn't it? You were very angry because you were asked to provide that information?
   • Mr Philip: That's completely wrong. I feel what they put down there is just they are trying to defend themselves. Anybody would try to defend he or herself. That's what you do. I don't think what they say is correct and it's not correct because I can't be angry for her for no reason. She's not the cause of my problems.
   • Mr Seck: So you deny saying "Why am I required to obtain these documents, given that I have been in Australia for nearly ten years" you never said that?
   • Mr Philip: No
   • Mr Seck: Do you remember her saying to you "You were 26 when you went to Germany because you spent time in Nigeria. You need a clearance from them." Do you remember that?
   • Mr Philip: Yes. All I can say to her that I would provide it. That's what I said. I didn't say - I was not angry, I was not rude and I was... because they didn't have - I don't have anything against them. Why should I? I am just applying for a job. That's what I'm applying. That's what they needed. I didn't - I can't be angry for them for no reason. At least, after all, if I go to other companies to apply for a job, I'll be interviewed and I'll be asked to provide resume, and I have to do that. So what she said there is wrong. She just writes it to defend herself, that's all.
   • (Transcript: 11/03/2010, p.33)
4. Mr Friend submits that Mr Philip's explanation as to why he said his tone was moderate should be accepted.
5. Mr Friend submits that the evidence of Kylie Brown, who's affidavit evidence was that she heard one half of the first phone call (referring to Mr Philip's telephone discussion with Ms Faber) was that she heard her husband having that discussion and that he was speaking in an even tone and being polite throughout the discussion. I note that Ms Brown was not called to give sworn testimony or to be cross-examined. Also in re-examination, Mr Friend asked Mr Philip the following question:
   • Mr Friend: Now when you spoke to Ms Bailey, how loud were you talking? Were you shouting?
   • Mr Philip: No, no.
   • Mr Friend: Do you know if she knew if you were in a street or not?
   • Mr Philip: No, I can't say. I don't think she will know I am on a street but I heard what - all the questions she was asking me and yes, I speak normally. I didn't shout. I shout for what, shout on the street. Did she owe me anything? Was what - what's the reason why I should shout?
   • (Transcript: 11/03/2010 p.44)
6. Mr Friend submits that the focus of the cross-examination was the terms of the morning conversation ("first conversation) referred to in

Mr Philip's primary affidavit. The details were not quite as extensive as in his second affidavit of 3 November 2009 but clearly it is a case where what clearly stuck in the Applicant's mind when he complained to the Commission was the second conversation which was a conversation with Senior Constable Bailey. Paragraph 8 of his primary affidavit states: * 8. On the 9th September 2008 I was contacted in the morning by a recruitment officer, who requested I obtain security clearance from Nigeria, I informed her that would arrange this. I have been in Australia for 10 years and have given them clearance report from Germany and Australia. 7. Mr Friend contends that this is entirely consistent with what he elucidated upon in his affidavit in reply in which he had the benefit of perusing the affidavit of Ms Faber which reminded him of that conversation. That reply was not unusual as it contained no further particulars in respect of their conversation. Mr Friend argues in respect to the question of whose evidence should be preferred, it should be

1. Mr Philip is supported as to how he spoke to Ms Faber by the evidence of Ms Brown. 2. It would be illogical and counter productive for Mr Philip to become belligerent and aggressive when he was applying for a job.

1. There were no words recounted with a precision as to what was said and there is no evidence in either conversation of any rude or vulgar words.

1. Mr Philip spoke to his enquirer in respect to obtaining a security clearance from the Nigerian consulate in Canberra.
2. Mr Friend submits that the contention by Ms Faber that Mr Philip became irate during the first conversation should not be accepted. She may have been confronted by an accent she was not familiar with and she may have misinterpreted it. Although Ms Faber deposes that

Mr Philip became irate, she does not say what he said which made her come to the view that he was irate. Ms Faber made the following file note after the conversation: * ...questioning why he was required to obtain such documentation when he'd been in Australia for nearly ten years.

Mr Friend argues that the note does not support a claim that Mr Philip was irate and is a question that he was entitled to ask.

1. In relation to the conversation with Senior Constable Bailey, Mr Friend argues that the Court is totally unassisted by her evidence because she had no recollection of the words, the event itself. Her testimony is that she had no recollection of:

1. what time of the day the conversation occurred; 2. of speaking to anyone else in the recruitment branch about the conversation;

1. an absence of any recollection of precise words which would be understandable given the effluxion of time, but there was no recollection on her part of the event at all.
2. Mr Friend contends that the Court is also totally unassisted by what Senior Constable Bailey had to say in the witness box. Consequently, the Court is left with the evidence of Mr Philip of the conversation from his affidavit which states:
   • 9. At about 2:15pm I received another call. I recall I was walking on Illawarra Road Marrickville when I received the call on my mobile phone. I was on my way to buy credit for my mobile phone. The conversation was with a female officer who identified herself as Ruth Bailey. It went as follows:
   • 10. Police recruitment officer: What were you doing in Germany?
   • Me: Playing soccer.
   • Police recruitment officer: How did you come to Australia? Are you a refugee?
   • Me: No, I'm not a refugee. I came to Australia from Germany.
   • Police recruitment officer: I am finding it very difficult to understand you. If you were to become a police officer it would be very hard for everyone to understand you over the radio.
   • Me: Nobody else is finding it difficult to understand me.
   • Police recruitment officer: (hung up the phone without further comment)

The rejection letter I received was dated 9th September 2008, the same day my last conversation took place. Annexed hereto and marked "F" is a copy of the rejection letter sent by the NSW Police Recruitment Branch to me. Annexed hereto and marked "G" is a copy of my Application signed on 29 August 2008.

11. I am very disappointed, a NSW police officer who has supposed to be trained for justice made this comment. This incident has upset me and made me feel very bad, I feel like I don't belong in Australia. I believe I should have been asked for an interview and not categorised as having a poor command of English.

1. This issue was also explored with Mr Philip under cross-examination where the following exchange took place:
   • Mr Seck: So you get rung up a second time by Senior Constable Ruth Bailey?
   • Mr Philip: Yes
   • Mr Seck: And you remembered her name and you put it in paragraph 9? So you remembered her name when she identified herself? You were walking down Illawarra Road in Marrickville. Was it noisy? Do you remember if it was noisy that day?
   • Mr Philip: It's the street, it has to be noisy. But I hear what she's saying and that.
   • Mr Seck: All right. So you're saying that besides, even though there was noise there, you could hear clearly what she was saying?
   • Mr Philip: Yes, that's fine.
   • Mr Seck: Okay. Now, in paragraph 9 of your affidavit - sorry, in paragraph 10 of your affidavit you set out the conversation which you say you had with Ms, Senior Constable Bailey and yourself walking down Illawarra Road; that's correct?
   • Mr Philip: Yes
   • Mr Seck: Was anything else, in your recollection, said or is that the complete conversation which you had with Senior Constable Bailey?
   • Mr Philip: This what exactly what we said.
   • Mr Seck: So nothing else was said, in your recollection?
   • Mr Philip: No. She asked me, she made a phone call and introduced herself.
   • Mr Seck: Okay?
   • Mr Philip: And asked if, and asked if I'm Victor Philip. I say, "Yes". And she says, she introduced herself and says she come from recruitment office in Parramatta.
   • Mr Seck: Okay
   • Mr Philip: But she heard and asking me, "How, where do you come from?" I said, "I'm from Nigeria." She said, "How did you come? What were you doing in Australia?" Then she says, "Why do you come? You were in Germany?" I said, "Yes." She said, "What were you doing in Germany?" Then I answer the questions then she says, "Why do you come here to Australia?" Then after some time she says that she can't, she can't understand me, you know. And I says to her, "Why you don't understand me?"
   • Now, Mr - - -?---And she says if I became a police officer that no one will understand me via the radio. And the minute she do so, she hang up the phone on me. That's what I can recollect for now. That's it. I was very upset and had, the character she put before me makes me to, it made me to, you know, paralyse me. It makes me to feel like I'm not belong and it makes me to be depressed from that time till that, to today. And if I get any job, but any job I applied, I feel like I'm not qualified because they have already turned me and it paralysed me that I can't get any job again. I feel like I'm not qualified because of the, what she says to me. So that's all I can say.
   • (Transcript 11.03.2010 p-39-40)
2. Mr Friend then turned to the issue of procedure that was in place for telephone interviews and was supported by Inspector General Malone of the New South Wales Police Force. As head of the recruitment branch, Inspector Malone gave evidence which gives the Court an understanding of the procedure and the usefulness of the document used to assess English language skills on the telephone. Despite this procedure being in place, it would seem that both Ms Faber and Senior Constable Bailey did not follow it. Their evidence was that the procedure was a guide. However, the evidence given by Inspector Malone does not support this. Mr Friend argues that the procedure should be followed for the reason that it was specifically designed for assessing language skills.
3. Ms Faber's evidence under cross-examination was as follows:
   • Mr Friend: Right. And there's a formula you use for checking his English communication skills is there? is it there?
   • Ms Faber: Yes.
   • Mr Friend: All right. And a couple of questions, according to that formula, are supposed to be asked of the Applicant?
   • Ms Faber: There is questions on there which are provided to us as a guide.
   • Mr Friend: Okay. And those questions are set out on annexure C of your affidavit, which your Honour will find on the last page?
   • Ms Faber: Yes, that is our telephone interview form.
   • Mr Friend: Yes. Okay: Ensure the Applicant -it says at the top -Ensure the Applicant is fully aware that the TI -that's a telephone interview?
   • Ms Faber: Yes.
   • Mr Friend: Well, you didn't make Mr Philip fully aware that his interview was for this assessment did you?
   • Ms Faber: I cannot recall specifically. However, in my standard processing and when I ring people for a standard interview, I do - my standard introduction, when I do a telephone interview, does make them aware that that is why I'm conducting this phone call.
   • Mr Friend: Well, you don't say that in your affidavit do you, that you made him fully aware of the reason of the telephone interview?
   • Ms Faber: I have to - I don't believe I have - I may not have put it actually in the affidavit that - - -
   • Mr Friend: Well, if I can take you to paragraph 7 of your affidavit, you say the reason why you spoke to Mr Philip...regarding his overseas clearance from Nigeria and the parts of the PSA that were incomplete. That was your stated reason for ringing him?
   • Ms Faber: I state in paragraph 6 that: "I carried out a telephone interview with Mr Philip on 9 September. In carrying out that interview, I completed the internal working document".
   • Mr Friend: All right. But you don't say that you made him fully aware of the interview. You didn't tell him that did you, that you were assessing his English communication skills?
   • Ms Faber: Based on what I - I cannot recall specifically whether I did to Mr Philip, but based on how I would normally, on my every day duties, conduct a telephone interview, then yes I would have.
   • Mr Friend: Well, you didn't ask him the questions - you didn't ask him this question:
     • "What is your motivation for seeking entry to the Diploma Policing Practice and hopefully a career in policing?" You didn't ask him that question, question Q1, did you?
4. The evidence of Senior Constable Bailey under cross-examination was as follows:
   • Mr Friend: Now, you understand that when you're doing an assessment or somebody's English communication skills there's a procedure to be followed?
   • Ms Bailey: Yes.
   • Mr Friend: Do you understand, Senior Constable, that procedure involves a specific form?
   • Ms Bailey: There is a form that we can use as a guide for a telephone interview, yes.
   • Mr Friend: You're aware of the form. Have you read Ms Faber's affidavit?
   • Ms Bailey: Yes, I have.
   • Mr Friend: And you're aware of the form which is the last form in that affidavit, annexure C which is internal, and it's headed
   • Ms Bailey: I'm not sure. My copy is cut off, but it appears to be a form for following the procedure to assess English communication skills.
   • Mr Friend: Are you aware of that form?
   • Ms Bailey: Could you show it to me please?
   • [...a complete copy of form provided to the witness]
   • Mr Friend: Are you aware how long that form has been in use?
   • Ms Bailey: When I started at the recruitment branch a form similar to that - there have been variations made to that form since I've started working there, but one similar to that was in existence when I started there.
   • Mr Friend: Right, okay. They're the forms for assessing the English communication skills forms?
   • Ms Bailey: They're a guide when you're conducting a telephone interview for the purpose of assessing English communication skills.
   • Mr Friend: Well, they're a guide, but they're a specific guide, aren't they? They tell you what questions to ask?
   • Ms Bailey: They're not mandatory questions that you have to ask. They are a guide.
   • Mr Friend: Do you agree with me on the form that they are expressed to be mandatory?
   • Ms Bailey: I'd have to have a look at the form to answer that question.
   • [Examination of the form]
   • Mr Friend: Now, you've had the opportunity to read that, Senior Constable?
   • Ms Bailey: Yes.
   • Mr Friend: And you agree with me it says, the first line:
     • Ensure the Applicant is fully aware that the TIs for the purpose of assessing is for the purpose of assessing their English communication skills. ?

Mr Friend: Okay. Well, you didn't do that when you spoke to Mr Philip, did you? You didn't tell him that he was fully - make sure he was fully aware that the purpose of the phone interview was for assessing his communication skills, did you?

Ms Bailey: I don't remember.

Mr Friend: You don't recall that?

Ms Bailey: No, I don't recall whether I did or not.

Mr Friend: Well, if you did you didn't put it in your affidavit, did you, that you informed him that it was to assess his - - -?

Ms Bailey: No, I didn't put it in my affidavit.

Mr Friend: And you didn't put it in your internal working document either?

Ms Bailey: No, I didn't.

Mr Friend: And I take from there that you didn't in fact inform him that the interview was - you didn't ensure that he was fully aware that the interview was for the purpose of assessing his English communication skills?

Ms Bailey: I don't remember whether I informed him or not.

Mr Friend: Do you agree it would have been an important thing to put in your affidavit that you did inform him if you did in fact inform him?

Ms Bailey: Well, if I had remembered if I had or not I would have.

(Transcript 11.03.2010 p.65-66)

1. The evidence of Inspector Malone, the General Manager of the Recruitment Branch for the New South Wales Police Force given under cross-examination was:
   • Friend: And it is a requirement, you state, that Applicants must have some proficiency in English communication skills?
   • Mr Malone: Yes.
   • Mr Friend: And there's a method for assessing their - Applicants' English communication skills in the recruitment process?
   • Mr Malone: Yes.
   • Mr Friend: And the methods for assessing the English communication skills are contained in a document, which is included in your affidavit ... There are questions asked on a form - a set format. Yes?
   • Mr Malone: Yes.
   • [...reference to location of document]
   • Mr Friend: And at that document, which is headed Internal Working Document Telephone Interview, is the instructions?
   • Mr Malone: Yes.
   • Mr Friend: Which is given to all recruitment staff to, when assessing people for a phone - on a phone interview; is that right?
   • Mr Malone: Yes.
   • Mr Friend: And it's specifically designed as a telephone interview, the process; is that right?
   • Mr Malone: Yes, that's correct.
   • Mr Friend: There's no - is there any other process where Applicants are invited in for an oral assessment, to Parramatta or anywhere else, or not?
   • Mr Malone: If necessary, we can organise that.
   • Mr Friend: Is that done often, or not?
   • Mr Malone: Generally not.
   • Mr Friend: Right. Is there a reason why the phone interview process is preferred, sir?
   • Mr Malone: Phone interview process is a basic process where we get an idea of the Applicant's proficiency in communication skills - English communication skills. If the assessment - the basic assessment - is not suitable or not believed suitable, then it's a staged process where we can then basically ramp up the process to a supervisor to conduct a secondary interview. If the su_pervis_or still has any doubts about the Applicant's ability or proficiency, they would then refer it on to either the coordinator or, eventually, to myself for review. If I then contacted an Applicant and I still had any doubts at all, then I would perhaps recommend that the Applicant come in before a panel interview.
   • Mr Friend: And would that happen at the early stage of the recruitment process?
   • Mr Malone: It normally does, yes.
   • M Friend: Before they get too into the Charles Sturt process, or the - certainly before they get to Goulburn, for example?
   • Mr Malone: Yes, absolutely.
   • Mr Friend: Yes, okay. Now, the internal working document, that sets out what you would want your recruiters to ask to - the process to go through?
   • Mr Malone: Yes, basic guidelines.
   • Mr Friend: Yes. And the first one is this. It says:
     • Ensure the -
     • Excuse me, did you prepare this document, sir?
   • Mr Malone: No, I didn't.
   • Mr Friend: That was in process before your appointment?
   • Mr Malone: Yes, it was.
   • Mr Friend: But you've seen fit to maintain this process with this document?
   • Mr Malone: Yes, I do at the moment, yes.
   • Mr Friend: Yes, okay. And - because I take it, sir, that the police force aims to recruit people from as wide as backgrounds as possible?
   • Mr Malone: Most definitely.
   • Mr Friend: And in doing that, the police force would always be faced with, particularly people from other countries originally from childhood, people with accents?
   • Mr Malone: Yes.
   • Mr Friend: And this document is designed to ensure that those people get a fair go in terms of getting into the recruitment process?
   • Mr Malone: As I indicated, it's a basic questionnaire. It's a staged process. If the recruiting officer that does the interview has any problems, we ramp it up to the next level to a supervisor, and then if necessary, further up to a coordinator or myself. And then if needed, a panel - professional suitability assessment review committee.

1. Mr Friend argues that it is a particularly important procedure to follow when the recruitment officers are charged with making an analysis of recruits and their English communication skills, ringing them up cold on a mobile phone at anytime of day. It was the second occasion where

Mr Philip was phoned up when he was in Illawarra Road, Marrickville which is a busy city thoroughfare. Mr Philip was walking down the street and received a phone call from Ms Bailey and although he has no memory of a length of time it can be inferred on the evidence that it would have been a relatively short conversation. Possibly, it could have been as little as a minute and the conversation in a large part is set out in Mr Philip's affidavit and statement. Mr Philip says Mr Bailey had hung up the phone whereas Ms Bailey says Mr Philip hung up the phone or was cut off. Mr Philip denies hanging up and the question arises as to why Ms Bailey did not ring him back as she initiated the call. 2. Mr Friend contends that the evidence was that the New South Wales Police Force was keen to recruit, essentially, people from different ethnic backgrounds in order to reflect the composition of the community. In these circumstances, the number of Applicants, if any from Nigeria, or other African nations apart from South Africa, must be relatively low and one would have thought that Mr Philip's Application would have been an opportunity to pursue this objective provided that he satisfied the recruitment criteria. 3. Mr Friend argues that Senior Constable Bailey is unlikely to have heard English spoken with a Nigerian accent previously. There was no questioning of any other officer for any further assessment and the matter was not referred to Inspector Malone. It was on the very same day that Senior Constable Bailey wrote a letter rejecting Mr Philip's Application without referral to his English communication skills.

Mr Friend submits that in cross-examination of Ms Faber, he took her to various items on the assessment of the Application form and it would appear that all of the critical aspects, intelligence and police checks were satisfied. Mr Philip had passed the suitability function. Mr Friend argues that it was just too quick to deem him unsuitable as a consequence of the brief discussion requesting Mr Philip to supply his Nigerian security clearance. This appears to be contrary to the evidence of Inspector Malone that in respect to any issue which is contentious, the recruiting officers are encouraged to pursue further details from the Applicant. 4. Mr Friend then moved to the issue regarding the refugee question.

In Senior Constable Ruth Bailey's affidavit, Annexure A - Internal Working Document dated 09/09/2008 is a file note regarding the telephone interview with Mr Philip. There is no reference in that note to the question 'Are you a refugee?' In cross-examination the following evidence was given: * Mr Friend: Well, have you read Mr Philip's first and second affidavits. That's the affidavits of 3 September 2009 and

3 November 2009? * Ms Bailey: Yes, I have. * Mr Friend: Right. Okay. And you know that he sets out, in paragraph 10 of his affidavit - I think you refer to that in your own affidavit - a conversation between you and him? * Ms Bailey: You'd have to show me. * Mr Friend: I suggest to you that you said to him: * What were you doing in Germany? * And he replied: * Playing soccer. * Do you recall that? * Ms Bailey: No. I don't recall that. * Mr Friend: Is that a question you would have asked him, though? "What were you doing in Germany?"? * Ms Bailey: I could have. * Mr Friend: It would be consistent with something you'd ask him, wouldn't it? * Ms Bailey: Yes. * Mr Friend: Because you knew he'd been in Germany from his forms? * Ms Bailey: Yes. * Mr Friend: And you don't recall him saying "playing soccer" one way or the other? * Ms Bailey: That's right. * Mr Friend: Okay. And: * How did you come to Australia? Are you a refugee?

You don't recall whether that was said or not, I take it?

Mr Friend: Well, I suggest to you that it was said. But you don't - as I understand your answer, you don't agree or disagree because you just can't remember?

Ms Bailey: That's right.

Mr Friend: Right. Okay. And Mr Philip replied:

• No, I'm not a refugee. I came to Australia from Germany.?

Ms Bailey: I don't recall.

Mr Friend: Don't recall that?

Ms Bailey: No.

Mr Friend: Okay. But he could have said it. It would have been consistent with questions you normally ask; is that right?

Ms Bailey: Yes.

1. Mr Friend advances the argument that besides the issue of the motivation of Ms Bailey to ask this question in the context that it was, it was also necessary to consider the effect of that question upon

Mr Philip. He is on a busy public street with the intention to attend to some shopping when he receives a call and one of the early questions is 'Are you a refugee?'. Mr Friend submits that it is understandable that Mr Philip was offended but he continues the conversation. Then he is told by Ms Bailey that she has got difficulty understanding him after what must have been an extremely short conversation at that point and in the context that no-one else has said to him that they had difficulties understanding him. This is the context in which Ms Bailey recorded in her file note "he sounded angry and constantly spoke over me. Whilst I was speaking his phone cut out (I do not know if he hung up on me or if his mobile cut out). He did not call back". 2. Mr Friend contends that if it was Mr Philip's phone that cut out; 1. How was Mr Philip to return the call, as this was the first occasion that he had spoken to Ms Bailey and it would be highly unlikely that he had her contact details; 2. Ms Bailey, as the Recruitment Officer was the initiator of the call and it could be assumed that Ms Bailey would call back as the officer responsible for this part of the recruitment. 3. On Ms Bailey's internal working document or file note, a review of the third paragraph there she notes the conversation and it is apparent that the discussion must have been extremely short. 4. Mr Philip's initial statement to the Commission at paragraph [6]-[7] states: * 6. At about 2:15pm I received another call. The conversation was with a female officer who identified herself as Ruth Bailey. It went as follows; * 7. Police Recruitment Officer: What were you doing in Germany? * Me: Playing Soccer. * Police Recruitment Officer: How did you come to Australia? Are you a refugee? * Me: No I'm not a refugee. I came to Australia from Germany. * Police Recruitment Officer: I am finding it very difficult to understand you. If you were to become a police officer it would be very hard for everyone to understand you over the radio. * Me: Nobody else is finding it difficult to understand me. * Police Recruitment Officer: hung up the phone. 5. Mr Friend draws the Court's attention specifically to the question asked by Ms Bailey "Are you a refugee"? rather than "were you a refugee?".

It is difficult to accept that this was the basis of an assessment of

Mr Philip's English communication skills in the absence of the introductory comments contained in the Internal Working Document - Telephone Interview which required the interviewer to ensure that the interviewee was aware that the telephone interview was for the purpose of assessing their English communication skills. Although it is an Internal Working Document to be used as a guide, the requirement to ensure that the interviewee was aware of the purpose was a mandatory term. 6. Mr Friend argues that the first thing Senior Constable Bailey should have done was ensure that Mr Philip was aware that the telephone interview was for the purpose of assessing his English communication skills. It is submitted that this interview was clearly on the basis that Senior Constable Bailey could not have asked Ms Faber whether she had already asked those questions because Ms Faber clearly had not. The guideline then requires: * Ask the Applicant Q1 on the T1 form. If you are satisfied that their English communication skills are of a satisfactory level i.e. 4 or above, no further questions need to be asked. 7. No attempt was made to ask that question. No attempt was made to follow the form. Indeed, the question was "Are you a refugee?"

Mr Friend submits that the question was not likely to obtain a response which would be helpful in providing an assessment of Mr Philip's English communication skills. 8. Mr Friend contends that this question was asked of Mr Philip after he had passed the approval process on the first stage at Charles Sturt University so it was not as if Mr Philip had, on the face of it, no command of the English language at all. Mr Philip's primary affidavit at annexure 'C' the first paragraph states: * I am pleased to advise that you have satisfied the academic requirements for admission into the Associate Degree in Policing Practice_._

Obviously, Mr Philip was a person with a command of the English language. It may not have been a perfect command but it was far from no command at all.

1. In Mr Philip's primary affidavit annexure 'F' which is the rejection letter issued by the New South Wales Police Recruitment Branch, the second paragraph clearly states:
   • the details provided by you within your Professional Suitability Application and results of various enquiries undertaken by the NSW Police Recruitment Branch had been reviewed and analysed. All available information has now been fully assessed by the NSW Police Recruitment Branch.
2. Mr Friend states that this letter was issued after a brief phone call purportedly made in part to obtain Mr Philip's Nigerian security clearance. Mr Friend contends that a critical analysis of the circumstances of that event will show that it is just not the case. There is no evidence of any words or that he became rude or belligerent at all. The evidence as to an irate temper is not supported by the evidence of Mr Philip, nor his wife and it totally goes counter to logic.

Respondent's evidentiary case - inconsistency in evidence

1. Mr Seck submits that the Respondent contends that where there is inconsistency between Mr Philip's evidence and the Respondent's evidence, the Respondent's witnesses should be preferred. In support of this contention, Mr Seck refers to the following.

1. Unlike Mr Philip, the Respondent's witnesses kept contemporaneous file notes of the discussions. Where there are contemporaneous filed notes of discussions, these should be accepted as reliable records of what occurred unless it can be shown to have been fabricated. 2. Mr Friend did not cross-examine the Respondent's witnesses on the authenticity or reliability of their file notes as being accurate. In the absence of any other evidence, the Respondent's witnesses' evidence contained in the file notes should be accepted as being truthful.

1. Neither Ms Faber nor Senior Constable Bailey had any reason to take an adverse position against Mr Philip other than based on merit. Inspector Malone's evidence shows that the NSW Police Force recruits a large number of persons from a Culturally and Linguistically Diverse Background, including African backgrounds. No plausible explanation has been given for the Respondent witnesses making up their evidence. On the other hand, Mr Philip lacked self awareness about his own communication skills. Mr Philip's own perception that he spoke clearly is not necessarily one that is accurate. A person may believe he or she communicates clearly and that he has been even tempered or polite, even though others may not think so.

1. Both Ms Faber and Senior Constable Bailey expressed the same conclusion from two separate conversations about Mr Philip's hostile behaviour and his poor English communication skills during their respective discussions. No suggestion was made that both had conspired in their evidence, had a common motive against Mr Philip or gave effect to an institutionalised policy of racist selection. The preponderance of evidence demonstrates that Mr Philip has a tendency to become less comprehensible when he is angry and speaks fast. Both Ms Faber and Senior Constable Bailey had similar experiences in dealing with

Mr Philip. Their observations in separate incidents corroborate one another's evidence as being likely to be accurate. The similarity of fact show that Mr Philip's propensity to speak and behave in the manner alleged. 2. Mr Seck submits that Mr Philip's presentation and demeanour in his testimony demonstrated that he lacked credibility as a witness and displayed the same characteristics observed by Ms Faber and Senior Constable Bailey during the interview with Mr Philip on

9 September 2008. During cross-examination Mr Philip had a hostile and defensive manner to simple questions. He refused to answer questions he did not like and on numerous occasions, decided to give speeches on the witness stand about matters completely off the point. He became hostile when challenged on parts of his evidence including arguing with Mr Seck about questions that did not allow him to give evidence he wished to give. An example of this behaviour included when it was put to Mr Philip in cross-examination about the absence of evidence in his primary affidavit in chief regarding his conversation with

Ms Faber that he had not included in his affidavit in reply. 3. Mr Philip demonstrated a lack of candour when he refused to acknowledge the misleading nature of his Curriculum Vitae (Exhibit R4) which gave his wife, Ms Kylee Brown, as a referee without disclosing their marital relationship. 4. Mr Philip's failure to concede innocuous points as to whether the phone cut out or not. He insisted that Senior Constable Bailey hung up on him during the conversation and refused to accept the more plausible alternative that his mobile phone dropped out. 5. In respect of Mr Philip's capacity to be clearly understood,

Mr Seck referred to evidence during cross-examination when he became defensive and upset. It was apparent that he did begin to speak more quickly and became more difficult to understand. His Court testimony is evidence supporting the conclusion of his tendency to react in similar manners in other similar instances.

It confirms the likelihood that he behaved and spoke in a similar manner in a conversation with both Ms Faber and Senior Constable Bailey. Mr Seck acknowledges that it is self-evident that Mr Philip speaks with an accent however, Mr Philip was plainly was not a model of perfect elocution and clear expression at times and it required to listen carefully to pick up precisely what he was saying. This confirms that the evidence of Ms Faber and Senior Constable Bailey that they could not understand

Mr Philip or parts of the conversation to be plausible.

1. Mr Seck refutes the four allegations advanced on behalf of Mr Philip to support the inference that the NSW Police Recruitment Branch made its decision based on Mr Philip's race, colour, ethnic or national origin. Mr Seck argues that the allegations do not have a basis in fact, or even if proven, could support the adverse inference claimed. The allegations are as follows:

1. In conducting the first interview Ms Faber used the Internal Working Document (Annexure D to her affidavit). In cross-examination

Ms Faber described the document as containing a guide for the type of questions to ask to test an Applicant's language proficiency and communication skills. Inspector Malone stated that although the preferred method was to follow the Internal Working Document, it merely reflected a guideline for recruitment officers rather than a mandatory rule. He said that Ms Faber simply applied the NSW Police Force's normal procedure of conducting the telephone interview and obtaining more information at the same time (Malone Affidavit, at para.6). The NSW Police Force neither demanded ridged adherence to the sample questions, nor compelled compliance with the procedure. 2. The purpose of the interview was to assess Mr Philip's communication skills. Ms Faber engaged Mr Philip in normal conversation by asking for the additional information to obtain the security clearances. Whether the sample questions were asked, or other matters were discussed, did not change the nature and purpose of the conversation and the capacity of Ms Faber to assess Mr Philip's communication skills. It made perfect sense that Ms Faber concurrently obtained further information from Mr Philip and assessed Mr Philip's communication skills. Rather than conducting an artificial discussion about Mr Philip's motivations for becoming a police officer, Ms Faber spoke naturally with Mr Philip about matters of real substance, stimulating the kind of discussion that a police officer would have with colleagues or members of the public. Mr Philip cannot therefore show any prejudice or disadvantage he has suffered by failing to follow the procedure. If Mr Philip demonstrates that the Recruitment Officer departed from the standard approach, then Mr Philip's point might have some substance. However, on the contrary, the evidence is that the NSW Police Force's usual practice was not to ask the standard questions, but to make an assessment as part of obtaining additional information. No prejudice has been suffered by Mr Philip given that Ms Faber merely applied the same approach that applied to all Applicants. 3. Ms Faber did not make the ultimate decision to decline to progress

Mr Philip's Application. Senior Constable Bailey made the final call. As Senior Constable Bailey conducted a second telephone interview, the guide contained in the Internal Working Document did not apply to her decision. To the extent that there has been a failure to comply with the procedure, it had no relevance because it did not materially impact on the outcome. Senior Constable Bailey came to her own assessment of Mr Philip's English communication skills and his attitude based on her own direct experience. Mr Philip's allegation that the recruitment branch failed to follow the Internal Working Document is not the point. If it could be shown that Senior Constable Bailey's decision to decline to progress the Application had been influenced by Ms Faber's first interview, there is insufficient basis to establish that the Recruitment Branch had therefore based its decision on Mr Philip's race, colour, ethnic or national origin. It does not follow that a failure to follow procedure demonstrates that there is a causal link between the Recruitment Branch's decision and Mr Philip's attributes.

1. Senior Constable Bailey admits that she had no independent recollection of the discussion of the 9 September 2008 but she did not deny that she may have asked Mr Philip whether he was a refugee (her affidavit, para.6). She expressed the view that, based on her normal practice, she may have asked the question to assist Mr Philip obtain overseas criminal clearance by making enquiries with the Australian Red Cross and the Department of Immigration and Ethnic Affairs (her affidavit, para.7). She states that she may have done so because in her experience refugees often found difficulty in obtaining an overseas criminal clearance.
2. If Senior Constable Bailey asked Mr Philip whether he was a refugee, she had a legitimate but innocuous reason for doing so. There is nothing inherently wrong with asking whether a person is a refugee. By asking the question whether he was a refugee does not lead to the logical inference that the Recruitment Branch based its decision on his race, colour, national or ethnic origin. The innocent and cogent explanation for the question is sufficient to dispel the inference that it revealed the true reason for the decision based on Mr Philip's race, colour, ethnic or national origin.

1. Mr Philip's complaint that the Recruitment Branch dealt with his Application in a 'contemptuous', 'rude', 'cursory' and 'capricious' way is not clearly articulated. These terms appear to be merely adjectival colour design to malign the Recruitment Branch's approach rather than allegations of fact capable of sustaining an inference of unlawful discrimination on the ground of Mr Philip's race, colour, ethnic or national origin. The evidence demonstrates that the Recruitment Branch applied an exhaustive and transparent process designed to ensure that Applicants are given a proper opportunity to express their communication skills so that they could be assessed. The Recruitment Branch had an Internal Working Document that sets out a guide to conduct the first interview (Faber affidavit, Annexure "C"). It had a stage process to escalate matters to a more senior team member to obtain a second opinion. Inspector Malone gave evidence that a matter could be progressed to him and others where there is any doubt about the initial assessment.
2. Senior Constable Bailey prepared a contemporaneous file note of the conversation (identified in her affidavit, Annexure "A") and completed a written assessment of Mr Philip's professional suitability (identified in her affidavit Annexure "B"). Senior Constable Bailey dealt with the Application in a professional manner and had a fair process in place to assess Mr Philip's English language skills. The entire assessment process has been clearly and thoroughly documented. In the event that Mr Philip could establish that there had been flaws in complying with the process, it does not lead to a conclusion that the Recruitment Officers based their decision on Mr Philip's race, colour, ethnic or national origin.
3. A person may make a decision that is completely unmeritorious, capricious or unreasonable. It does not follow, however, that just because no cogent reason for the alleged conduct can be shown (which is denied) that the alleged conduct must have occurred on the ground of Mr Philip's race, colour, ethnic or national origin. This approach was rejected by the House of Lords in Glasgow City Council v Zafar [1997] 1WRL1659 at 1662-1663.

1. It has been suggested by the applicant that his accent can be used as a proxy to make an adverse inference that there is a causative connection between the Recruitment Branch decision not to process his Application and his race, colour, ethnic or national origin. The Respondent rejects that Mr Philip did not progress to the next stage on the ground of his accent, but rather his poor attitude and failure to meet minimum communication skills standards. However, assuming accent was the reason for the act, it does not follow as a matter of logic that this link is established. Sir Ronald Wilson, Commissioner of the Human Rights and Equal Opportunity Commission, rejected this approach in Cronin v Department of Social Security (1992) EOC 92-431. Mr Seck submits that all the circumstances of the case must be considered in determining whether an inference arises and accent cannot form the exclusive or predominant basis for drawing an inference.

Respondent's evidentiary case - refuting causative link

1. Mr Seck contends that there is clear evidence refuting the causal link between the Recruitment Branch action and Mr Philip's race, colour, ethnic and national origin. Mr Seck advances four issues in support of this contention:
   1. Inherent requirement of being a police officer:
2. It is not disputed that the inherent requirement of being a police officer requires good communication skills. The NSW Police Force makes these minimum standards clear in various documents (Malone affidavit, para.23; Exhibit "AM1", tab 8, p.13; tab 10, p.4). Where the ability to communicate effectively is an inherent requirement of the position the decision not to progress an Applicant's Application is not because of a person's race, colour, ethnic or national origin. This position was emphasised in D'Souza v Geyer and Directorate of School Education Victoria [1996] HREOCA 4. In T v Department of Education Victoria [1997] HREOCA 38, Commissioner Kenny SC (now Justice Kenny of the Federal Court of Australia), supported the approach adopted in D'Souza. Mr Seck argues a similar approach should be applied here. The Recruitment Branch's decision to decline the Application was because of Mr Philip's inability to communicate properly.

1. The NSW Police Force recruits a significant number of police officers from Coloured and Language Diverse Backgrounds. During the period 2007 and 2009 the NSW Police Force received an average of 3,000 Applications annually and an average of 1,100 candidates progressed to admission into the Associate Degree in Policing Practice. In that time, 786 out of the 1600 persons from a Coloured and Language Diverse Backgrounds (CALD) successfully applied for admission to the Associate Degree. A number came from an African background. These numbers reveal that the NSW Police Force does not have any systemic or institutionalised racism in the recruitment of police officers.

(c) Availability of English communication skills courses

1. The NSW Police Force does not automatically exclude persons with poor English language skills. Persons with inadequate communication skills are not excluded altogether but are encouraged to attend TAFE or AMES courses and reapply. The Recruitment Branch's decision was not based exclusively on Mr Philip to demonstrate adequate English communication skills but also on his hostile attitude displayed during his telephone interviews.

1. The Recruitment Branch has procedures designed to ensure that it properly assesses Mr Philip's English communication skills. Two recruitment officers conducted separate interviews rather than merely relying on the potentially idiosyncratic judgment of one person. The procedure applied and evaluation is clearly documented. The Recruitment Branch's 'Internal Working Document' makes explicit the relevant considerations designed to avoid immaterial or extraneous matters affecting the assessment of Mr Philip's communication skills. The Recruitment Branch also made clear in its recruitment information given to Mr Philip that he had to demonstrate his English communication skills. None of these matters were concealed and

Mr Philip acknowledged in cross-examination that he knew about these requirements.

1. Mr Philip was subject to evidence-in-chief and extensive cross-examination. Mr Philip appeared in Court neatly attired in a dark suit, collar and tie. Initially, he was very quietly spoken and was asked to speak up in order to be heard by those present in Court. After this initial request, he spoke in a clearly audible tone with a distinctive accent. To my ear his accent was one that I had heard on a number of previous occasions and was not one that was difficult to understand. Throughout his entire evidence I do not believe there was anything said by Mr Philip that could not be understood and required being asked to repeat what he had said. A review of the transcript of his evidence does not reveal anything, other than the odd word which is not unusual, that the transcription service were unable to understand and required any notification to that effect. The English spoken by Mr Philip was not sophisticated and there were a number of examples where the wrong tense or expression were used. I acknowledge that Mr Philip was in an environment in which he was not familiar and the gravity of the situation resulted in his nervousness and obvious discomfort. I have no doubt that the evidence given by Mr Philip was his honest belief. He appeared to respond to the rather searching cross-examination in a forthright manner and did not appear as evasive or refusing to answer. However, during cross-examination, it became clearly apparent that

Mr Philip became confused and this resulted in quite a distinctive reaction from him. 2. This is clearly demonstrated in the transcript where Mr Seck was asking Mr Philip why he had not identified in his statement to the Human Rights Commission or in his primary affidavit that the person who had initially called him on 9 September 2008 was Katherine Faber. Mr Philip initially insisted that he had identified Ms Faber but in fact it was not until his affidavit in reply that he had identified her by name. At that point he had the benefit of reading Ms Faber's affidavit. The following sequence of questions contains that testimony: * Mr Seck: Right. So let me go back to the question. When you - you don't identify in your affidavit that Catherine Faber was the one who called you on 7 and 9 September; is that correct? Yes or no? * Mr Philip: Can you say it again? * Mr Seck: You don't identify in your main affidavit that Catherine Faber was the one who contacted you on 7 or 8 September 2008. That's correct isn't it? It's not a trick question? * Mr Philip: Yes. * Mr Seck: So you don't identify her; is that correct? Mr Philip, I'm not tricking you. It's not - can I tell you, it's not in your affidavit, your first affidavit. Do you agree with that? * Mr Philip: Can I say something to you, sir? * Mr Seck: No, you have to answer my questions? * Mr Philip: I want you to - - - * Mr Seck: No, no. I'm asking you a question and you have to - - -? * Mr Philip: I don't want you to confuse me. You are a lawyer. I'm not a lawyer, your Honour. * Mr Philip: You are trying to make me - doesn't know what I'm saying. That's what you are doing and the question you are asking me since is making me to get confused and mix up all the statement, which is not correct. * Mr Seck: I don't want you to be confused, Mr - - -? * Mr Philip: Just be straight to what we are saying and just - you are treating me - not treating me to be able to get the right in and say it. You are treating me to be confused. * Mr Seck: Okay. I don't want you to be confused - - -? * Mr Philip: That's what are treating me. * Mr Seck: I don't want you to be confused, Mr Philip, so I - - -? * Mr Philip: You are confusing me by asking me cross questions. * Mr Seck: All right? * Mr Philip: I'm not a lawyer, you understand that. You understand that. * (Transcript 11.03.2010 p.30-31). 3. My observation was that when the questioning challenged Mr Philip's recollection of the contents of his affidavits, he became confused and then did not appear to be listening to the question being asked. His apparent concern was that the questions were being put to him with the intention to confuse him or possibly trick him. It was abundantly obvious that he was confused, agitated and concerned however it was not apparent that he started to speak quickly, increased his volume or attempted to speak over the cross-examiner. He obviously was confronted by the situation however there was not any significant change in his diction to the extent that his language became unintelligible. Throughout the exchange, Mr Philip's speech pattern could be understood and the transcription service appears to have been able to translate what was said. 4. Mr Seck made submissions in respect to Mr Philip's testimony suggesting that he adopted a hostile and defensive manner to simple questions, refused to answer questions he did not like, gave speeches about matters completely off point and became hostile when challenged on parts of his evidence. Further, Mr Philip complained that he was not being allowed to give evidence that he wished to give. I formed the view that Mr Philip did on occasions, fail to respond directly to the questions asked and did tend to give answers in a manner that he was attempting to convey to the Court issues that he wanted ventilated. I believe that the main contributing factor to

Mr Philip's presentation and demeanour was due to the fact that, in many instances, he had lost concentration, became confused and was attempting to put to the Court his position rather than respond to the questions asked. When Mr Seck intervened and asked Mr Philip to address the question asked, this confusion became more apparent. 5. The following sequence of cross-examination demonstrates this aspect of confusion: * Mr Seck: So can I just take you to the first paragraph, Mr Philip, and the second sentence? Let me read it out for you or can you read it out to the court? * Mr Philip: No, you read it. * Mr Seck: Can you please read it out to the court? * Mr Philip: You read it yourself please. * Mr Seck: No, I'm asking the questions here, Mr Philip. Can you please read it out to the court? * Mr Philip: It's just more correct. I need to go with my glass. That's why I said you to read it. * Mr Seck: Okay. Do you have your glasses with you? Do you have your glasses with you? * Mr Philip: I don't have with me. * Mr Seck: You don't have your glasses with you? * Mr Philip: No. * Mr Seck: So you can't read anything which is - - -? * Mr Philip: I can read the big characters, I can read. * Mr Seck: Do you have your glasses in your bag here? We're looking at that document we referred to, Mr Philip, which is annexure C to your affidavit sworn on 3 September 2009? * Mr Philip: It looks like I don't have it here. * Mr Seck: So you - - -? * Mr Philip: Yes, yes, that's right, I see it. * Mr Seck: You do have a copy of that or you don't? * Mr Philip: That's my wife's. I don't have it here with me, sorry. * Mr Seck: We've got a copy, your Honour? * Mr Philip: It was my wife when I was thinking it's my own, sorry. 6. Significantly, the above passage of testimony took place after

Mr Philip, in his evidence-in-chief, had confirmed that his primary affidavit and affidavit in reply were before him in the witness box and he confirmed that he had sworn both and that the contents of the documents were true. 7. There are also examples during cross-examination where Mr Philip gave speeches about matter that were off point. The following sequence of questions demonstrates this issue: * Mr Seck: Now, you understood from looking at that paragraph, Mr Philip, that even if you passed the professional suitability assessment that you weren't guaranteed to even get admitted into the degree. Is that correct? * Mr Philp: Yes. * Mr Seck: And you understood that you weren't even being made an offer of employment at this stage to become a probationary police officer of the New South Wales Police Force. Is that correct? * Mr Philip: I was not made offer because I was not given a chance to apply. So that's what it is, so I can't say no because if I was given an opportunity to apply then that's when if I'm not suitable then I - I don't have anything to say because I know I'm not suitable, but I knew I was suitable. That's why I applied. I can't just apply for what I know that I can't be able to do. * Mr Seck: All right? * Mr Philip: -So I was not given the opportunity. That's why - that's why we're here today. The opportunity was not given to me at all. That's why we're here today. * Mr Seck: Okay. So your complaint is about the opportunity not to progress in the Application process to even get to the stage of undertaking the degree. Is that correct? * Mr Philip: Yes, the opportunity was not - was not given to me because of the way they treated me because they feel that I'm not qualified by looking at my photographs. After they demanded that I should send my photographs to them they look at me and say look, this is not the person they need. That's why everything goes like that. I mean, if I was given the opportunity before they assess me and they notice that I'm not qualified I will be fine, like I was not given the opportunity because of the - my skin colour. * Mr Seck: All right. So your complaint is about your skin colour being black. Is that correct? * Mr Philip: That's right, yes. 8. A further example of Mr Philip not directly responding to the question asked and proceeding to give commentary on broader issues is demonstrated in the following passage: * Mr Seck: Do you understand that Charles Sturt University was only assessing your academic suitability for admission into the degree? Do you understand that? * Mr Philip: That's right. * Mr Seck: And did you understand that was only one stage of the process? * Mr Philip: That's right. * Mr Seck: And that you also had to pass the professional suitability Application? * Mr Philip: That's right. * Mr Seck: So, in fact, it's wrong to say just because you're academically suitable that you were professionally suitable to become a police officer. That's correct, isn't it, Mr Philip? * Mr Philip: If police - New South Wales Police - New South Wales Police was not - they engaged themselves with Charles Sturt University, I mean, as like they work in hands. They assess you here before you move ahead, so if they - they feel that this university cannot assess people properly they should not engage themselves with the university. So for them working in hands they trust them that what they - who they have passed through is qualified - - - Do you understand - - -?--- - - - and in terms of academic. * Mr Seck: Mr Philip, I'm asking you a very specific question, so listen to the question very carefully? * Mr Philip: Yes, okay. * Mr Seck: Do you understand that someone's academic suitability for admission to the degree was a different issue to whether or not you were professionally suitable to become a police officer? Did you understand that yes or no? * Mr Philip: I do, yes. * (Transcript 11.3.2010, p.19) 9. The Court is being invited by Mr Seck to accept that Mr Philip, during cross-examination, became defensive and upset and consequently spoke quickly and became more difficult to understand. The argument advanced that this response is likely to be similar to the nature of the conversation between Mr Philip and Ms Faber and Senior Constable Bailey. The accent of Mr Philip is not commonly heard and familiar to our ear and it does require close attention to pick up precisely what he is saying. It should be acknowledged that giving sworn testimony in Court which would be a strikingly unfamiliar environment for

Mr Philip who was undertaking almost two hours of cross-examination that his elocution and expression may differ to that used by Mr Philip in familiar surroundings to him. The other markedly different circumstance between his evidence and the discussions with Ms Faber and Senior Constable Bailey was that his discussion with both was extremely brief. Also, during the discussion with Senior Constable Bailey, Mr Philip was on a noisy public thoroughfare and the interview took place without prior notification and the purpose of the interview was not conveyed to him. Consequently, I am not satisfied that

Mr Philip's presentation before the Court comprehensively confirms the evidence of Ms Faber and Senior Constable Bailey that they could not understand Mr Philip. Despite the evidence of Ms Faber and Senior Constable Bailey, it appears that the essential elements of the discussions with Mr Philip resulted in him conveying issues to them both to the extent that the messages were conveyed.

1. The elements of an allegation of indirect discrimination was not raised or identified in Mr Philip's complaint to HREOC or the Application to this Court. During the hearing, the complaint advanced on behalf of Mr Philip was one of direct discrimination on the basis of his exclusion by the NSW Police recruitment branch because of his accent pertaining to his ethnic origin. After the close of evidence, orders were made that the Applicant filed written submissions by Monday 29 March 2010 and the Respondent by Friday 16 April 2010. It was within the written submissions made on behalf of Mr Philip that the claim of indirect discrimination under s.9(1A) of the Racial Discrimination Act appeared in the following form.
   • 14. Further and in the alternative the Applicant contends that s.9(1A) (indirect discrimination prohibition) of the RDA was breached in that the Applicant was required to comply with a condition that was not reasonable, that is the Applicant was required to speak English without the accent of his ethnic or national origin, a condition he could not comply with and the requirement which had the effect of interfering with the right of the Applicant to a free choice of employment.
   • 15. It was reasonable for the Respondent to require Applicants from ethnic or national groups to speak English so that they could be understood. It was unreasonable for the Respondent, however, to require the Applicant to be assessed on the basis of two short calls to his mobile phone without him being told the purpose of the call nor that his accent was being assessed. Indeed if the Respondent's own preferred procedure was followed he would have been provided with a fair go, the reasonable chance to be assessed. A white Australian Caucasian Applicant would not have been so treated.
2. Mr Seck in his written submissions rightfully challenges this approach and submits that it appears that Mr Philip's legal representative has decided to make a new legal claim without having identified the legal or factual elements or called evidence to support the claim until final submissions. Had Mr Philip's legal representatives properly identified the claim of indirect discrimination, the Respondent submits that they would have called additional evidence to address each element. Further, this claim raises a potential constitutional matter requiring the service of notices under s.78B of the Judiciary Act 1902 to notify the Commonwealth, State and Territory Attorney-Generals to permit them to intervene in the proceedings.
3. This situation arises out of the Federal Structure of the Constitution where there is an implied limitation prohibiting the Commonwealth making laws binding on the States inhibiting a State's right to determine the identity of employees critical to the capacity of a State to function as a government: Re Australian Education Union; ex parte State of Victoria [1995] HCA 71; (1995) 184 CLR 188 at 231; Victoria v The Commonwealth (1996) 187 CLR 416 at 498. This principle has been held to extend to members of a state police force: Konrad v State of Victoria [1999] FCA 988; (1999) 91 FCR 95. With the post hearing inclusion of this indirect discrimination claim, the issue of a potential constitutional matter has not been ventilated and the Respondent has not called any evidence to counter the claim.
4. To prove a claim of indirect discrimination, the following issues must be proven:

1. a person must impose a term, condition or requirement on the complainant; (first element); 2. the term, condition or requirement is not reasonable in the circumstances; (second element);

1. the complainant does not or cannot comply with that term condition or requirement; and (third element); and

1. the requirement had the effect of interfering with recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, decent or ethnic or national origin as the complainant of a relevant human right or fundamental freedom (fourth element).

1. The first element to establish an indirect discrimination claim requires the legal representatives for Mr Philip to identify expressly and precisely a condition or requirement applying to all relevant persons and to adduce evidence to prove the elements of direct discrimination: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393.
2. It was not until the written submissions were delivered that the representatives for Mr Philip identified the condition as being "required to speak English without the accent of his ethnic or national origin" (Applicant's submissions para. 14). Evidence would be required to show that the NSW Police Force Recruitment branch impose this requirement or condition on all candidates however this was not done. Mr Seck's submission is that if the indirect discrimination claim was contained within the Application then the NSW Police would have provided evidence to demonstrate the nature of the requirement and condition imposed not only on Mr Philip but also on other recruits.

1. The second element to establish an indirect discrimination claim concerns the reasonableness of the requirement or condition. The written submissions filed on behalf of Mr Philip (para.15) claim that the following requirement or condition was not reasonable:
   • To require the Applicant to be assessed on the basis of two short calls on his mobile phone without him being told the purpose of the call, nor that his accent was being assessed.
2. An assessment of the reasonableness of a requirement involves an examination of the requirement. It does not concern whether Mr Philip or the NSW Police Recruitment Branch acted reasonably, rather it is an evaluation of the correctness of the NSW Police Recruitment Branch decision or whether other alternatives were reasonable: Commonwealth v Human Rights and Equal Opportunity Commission Commonwealth v Human Rights & Equal Opportunity Commission & Ors [1993] FCA 547; (1993) 119 ALR 133 per Shepherd J at [87]; Australian Medical Council v Wilson (supra) per Heerey J at [61]; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 per Sackville J at [112]; State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [27].
3. The Court was referred to the decision of his Honour Wilcox J in Styles v Secretary, Department of Foreign Affairs and Trade (1988) 94 ALR 408 at 429A where his Honour indicated the first, it was necessary to:
   • Ascertain the reasons underlying a Respondent's insistence upon the relevant requirement or condition and then ask "whether, having regard to such discriminatory effects as it is shown to have, and considering the question in a practical and not merely theoretical way, it is, under all circumstances, objectively justified.

On appeal of Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 263, the majority Bowen CJ, Gummow J confirmed this approach.

1. Mr Seck, in his written submissions, submits that if Mr Philip had raised these matters in both the complaint and the Application, the NSW Police Force Recruitment Branch would have adduced evidence to support the reasonableness of the condition including the importance of the communications in performing operational duties, the types of situations where communications were critical and the nature of communications over police radios to demonstrate the reasonableness of the requirement. If the method of ascertaining Mr Philip's communication skills were irrelevant, the NSW Police Recruitment Branch would have adduced evidence about the reasonableness of the method used.

1. The third element to establish indirect discrimination claims requires an Applicant to prove that he did not and could not comply with the relevant requirement or condition. Mr Philip must show that his accent meant that he could not, in a practical sense, comply with the requirement or condition: Australian Medical Council v Wilson (supra) at [80]. Mr Seck argues that the difficulty with Mr Philip's position is that he claims that he could comply with the requirements that he be able to express himself clearly. In the written submissions tendered on behalf of Mr Philip (para.24), the claim by Mr Philip that he did speak clearly, albeit with an accent, but that the recruitment branch "switched off the Applicant's [sic] ability to communicate". The difficulty with this submission is that Mr Philip cannot claim that he could not be understood clearly and at the same time could not comply with the Recruitment Branch's requirements or condition.
2. Normally, in a race discrimination case the Applicant must prove that he did not and could not comply with the relevant requirements or conditions. Specifically, in this matter, Mr Philip must be able to show that his accent meant that he could not, in a practical sense, comply with the requirements or conditions: Australian Medical Council v Wilson (1996) 68 FCR 46 at [80] per Sackville J (with Heerey J agreeing) his Honour states:
   • ...s 9(1A)(c) of the RD Act speaks, as does s 9(1), of the enjoyment or exercise ``on an equal footing'' of any human right or fundamental freedom. It does so in the context of a subsection which deems certain acts requiring a person to comply with a term, condition or requirement to be acts involving a distinction based on the person's race, colour, descent or national or ethnic origin. Plainly s 9(1A)(c), by the use of the phrase ``on an equal footing'', contemplates a comparison of some kind. The comparison must involve the group to which the complainant belongs. That group, depending on the circumstances, must be defined by reference to race, colour, descent or national or ethnic origin. The question is with what other group must the comparison be made.
   • It must be said that the wording of s 9(1A) gives no clear indication as to the nature of the comparison that must be undertaken. The language used is elliptical, reflecting the terms of the Convention from which s 9(1A)(c) is (at least in part) derived. Given the obscurity of the language, I do not think that s 9(1A)(c) compels a conclusion that the comparison to be made is between two (or more) groups, each of which is subject to the same term, condition or requirement. Nor do I think that the decision of the High Court in Banovic provides support for such a conclusion in relation to s 9(1A)(c).

In Mr Philip's case, his accent meant that he could not meet the requirement of clear communication.

1. The fourth element to establish an indirect discrimination claim requires evidence of a comparator. I accept the argument advanced by Mr Seck that the NSW Police Recruitment Branch requires all Applicants to demonstrate their professional suitability to become a police officer. One of those inherent requirements is having adequate communication skills including the need to be understood with clarity in personal conversations or over the telephone or radio (Malone Affidavit, para [23]; Exhibit AM1 - tab 8, p.13; tab 10, p.4). Visual requirements are explicitly identified and taken into account in both the professional suitability process and medical assessment (Malone Affidavit, Exhibit AM1, tab 10, p.2).
2. The learned authors of Federal Discrimination Law published by the Human Rights and Equal Opportunity Commission state that to breach ss.9(1) and 9(1A)(c) of the Racial Discrimination Act, a requirement must have the purpose or effect of impairing the recognition, enjoyment or exercise, "on an equal footing", by people of the same race of any relevant human right or fundamental freedom. Section 10 requires an Applicant to prove that they "do not enjoy" a right, or do so "to a more limited extent" than persons of another race. That expression "on an equal footing" requires a comparison between the racial group to which the complainant belongs and another group without that characteristic (usually referred to as the 'comparator').
3. In Australian Medical Council v Wilson (supra) concerning a Doctor Siddiqui, the Full Federal Court considered the meaning of "on an equal footing" in s.9(1A)(c). That case concerned the requirement that an overseas trained doctor submit to an examination as a requirement of registration to practice medicine in Australia. This did not apply to doctors trained at an accredited institution. The case was argued on the basis that an appropriate comparison in determining the question of whether or not the rights were being enjoyed "on an equal footing" was between the group of which Dr Siddiqui belonged (either defined as 'overseas trained doctors' or 'overseas doctors of Indian national origin'). Applicants from accredited medical schools who were not required to sit the examination.
4. Black CJ (at [47]), Sackville J at [80] - [82] (Heerey J dissenting) held that it was not necessary for the group that are compared to have been subject to the same requirements. Sackville J at [81] states:
   • In my opinion, the language used in s 9(1A)(c) is satisfied if the effect of a requirement to comply with a particular condition is to impair the exercise of a human right by persons of the same group as the complainant, on an equal footing with members of other groups, regardless of whether or not those other groups are required to comply with the same condition. Of course, the usual case of alleged discrimination involves the disparate impact of a particular requirement or condition upon two or more groups, each of which is identified by reference to race, colour, descent or national or ethnic origin. But there may well be cases in which members of a group are impaired in the exercise of a human right precisely because they must comply with a condition to which members of other groups are not subject.
5. Chief Justice Black and Sackville J were of the view (expressed in obiter comments) that the examination in quota requirements applied in that case did not have the prescribed effect on the human rights and fundamental freedoms. Justice Sackville stated that the evidence did not establish that persons of Indian origin were denied relevant opportunities or disadvantages by the requirement of registration.
6. The argument advanced by Mr Seck was that Mr Philip must demonstrate that the requirement to comply nullifies or impairs the enjoyment or exercise, on an equal footing, by persons of the same race, colour, national or ethnic origin of any human right or fundamental freedom. The imposition of the requirement or condition must affect all persons of Mr Philip's race, colour or ethnic or national origin and not just Mr Philip. However, Mr Friend, on behalf of

Mr Philip, has not adduced any evidence that other persons of

Mr Philip's race would not have been able to comply with the requirement or condition. Mr Philip merely asserts that he has a 'Black African accent', but it has not been shown that other 'Black Africans' have the same accent that would prevent them from complying with the requirements or condition. 7. To the contrary, Mr Seck refers to the unchallenged evidence given by Inspector Malone (his affidavit at paras.16-17) that the NSW Police Force accepted 14 out of 35 Applicants from a southern African background in the last 3 years. 8. The term "on an equal footing" requires a comparison between the racial group to which Mr Philip belongs and another group without that characteristic: Australian Medical Council v Wilson (supra) at p.63 per Heerey J where his Honour states: * The legislative history of s 9(1A) shows that it was designed to deal not with direct discrimination but with the imposition of terms, conditions or requirements which impacted in a disproportionately adverse way on members of the complainant's protected group as defined by race, colour etc. * Section 9(1) is apt to deal with an act which operates directly on the complainant - eg, a refusal of service to a person in a hotel. Once that act is shown to be ``based on'' the complainant's race, colour etc (a ``straightforward factual inquiry'' which necessitates a search for the true basis: Mt Isa Mines at FCR 324) it would ordinarily follow that the complainant has been prevented from enjoying a right ``on an equal footing'' with others who do not share the complainant's relevant characteristic and who will be served. Thus a ``distinction, exclusion, restriction or preference'' is made out as between the complainant and other persons not subject to discriminatory acts of a like nature. The discriminatory act (refusal of service) is explicitly or implicitly connected with the prohibited criteria of race, colour etc. * However, and notwithstanding the approach of United States courts referred to above, it is understandable that Australian legislators might have thought that the imposition of a term, condition or requirement which on its face applied to all who had to meet it, regardless of race, colour, etc, could not be an act involving a distinction etc ``based on'' race, colour etc. Accordingly, s 9(1A) was introduced. The problem of a term, condition or requirement not having any apparent connection with race, colour, etc is overcome because the law can now look at how the complainant and his or her group fare in facing the term, condition or requirement compared with others not of that group who also face it. It seems to me that such a comparison is essential. If the term, condition or requirement is in truth ``based on'' race, colour etc then no comparison is required and we need go no further - s 9(1) applies. If it is not, then only by the comparison suggested can it be ascertained whether the term, condition or requirement has the purpose or effect proscribed by s 9(1A)(c). I might add that the comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a sub-group (the complainant's group) within a larger group (all who face the same term, condition or requirement). 9. It is not in dispute that those representing Mr Philip have not identified a comparator group or any evidence of whether or not the comparator group has been adversely affected. In respect to the NSW Police Recruitment Branch denying Mr Philip the opportunity to progress to the next stage of admission to the force, there was nothing from

Mr Philip to show discriminatory conduct or action in the context of a comparator. Nor was there, and nor in context could it be expected, any evidence from the NSW Police of a comparison with a person with Mr Philip's attributes. By contrast however, there was clear evidence from the NSW Police Recruitment Branch that persons from the African continent who were black, were engaged and continued to be employed by the NSW Police Force. The critical and relevant difference being that such persons had satisfied the English Language Skills requirement during the recruitment process. This was put in answer to the attack that the Recruitment Officers discriminated against Mr Philip on the basis of his race. 10. Inspector Malone, in his affidavit, sets out the broad recruitment policy of the NSW Police Force: * 15. The New South Wales Police Force is an employer of choice. Whilst every Application is assessed on its own individual merits, the Application process is an extremely competitive one. On average, the NSWPF Recruitment Branch receives over 25,000 Expressions of Interest per year. Ultimately the NSWPF is under no obligation to employ any person regardless of an Applicant's ability to meet the assessment criteria. * 16. Over the past three (3) years Recruitment Branch staff has processed on average 3,000 Applications per year with an average of 1,100 Applicants per year progression from the CSU Eligibility Pool into the ADPP. Between 2007 to 2009 Police Recruitment Branch process some 1600 Applications from people with Culturally and Linguistically Diverse (CALD) backgrounds, 786 of which progressed into the ADPP during that period. * 17. Some 35 Applicants processed during 2007 - 2009 were from South African countries with 14 Applicants proceeding to the Eligibility Pool.

1. The claim of indirect discrimination under the provisions of s.9(1A) has been raised as an alternative claim in the written submissions tendered to the Court after the case was closed and final addresses were made. The claim was not contained in the complaint filed with HREOC or the Application to this Court. Further, at no stage during the hearing was there an Application to amend the original pleadings. Further, no specific evidence addressing this issue has been adduced, nor have the essential elements been required to satisfy a claim of indirect discrimination been made out. In these circumstances, the claim of indirect discrimination cannot be sustained and should be dismissed.

Direct discrimination under s.9(1)

1. In Australian Medical Council v Wilson (supra) per Sackville J at [73] His Honour identifies the elements that are required to claim that a person has breached s.9(1) of the Racial Discrimination Act. His Honour states that section 9(1) makes it unlawful:
   • (i) For a person;
   • (ii) To do any act; (first element)
   • (iii) Involving a distinction, exclusion, restriction or preference; (second element)
   • (iv) Based on race, colour, decent, national or ethnic origins; (third element)
   • (v) 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 other field or public life (fourth element).
2. The provisions of s.9(1) replicate the terms of ICERD which Australia ratified under s.7 of the Racial Discrimination Act. The Act's preamble makes the claim that it is intended to give effect to Australia's international legal obligations under ICERD.
3. Mr Friend contends that the term 'race' should be understood under the Racial Discrimination Act in the popular sense, rather than as a term of art: Williams v Tandanya Cultural Centre [2001] FMCA 46; (2001) 163 FLR 203.

The distinction based upon race, ethnic or national origin is really made of the group regarding itself as being "viewed by others as a distinct community of virtues and certain characteristics": Mandla v Dowell Lee (supra). In this context, Mr Friend maintains that Mr Philip is from a group of African people geographically based in Nigeria with a shared culture and geographic origin. He would be popularly regarded as being from the Black African race being of Nigerian national origin. Further, the term 'national origin' has been distinct from nationality or citizenship: Australian Medical Council v Wilson (supra) where his Honour Sackville J approved the judgment of Lord Cross in Ealing London Borough Council v Race Relations Board [1972] AC342. Lord Cross stated at [365]: * There is no definition of national origin in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as 'a nation' - whether or not that constitutes a sovereign state. A connection will normally arise because the parents or one of the parents of the individual in question are or is identified by decent of the nation in question, but it may also sometimes arise because a parent may have made their home among the people in question. 4. Mr Friend submits that the fact that Mr Philip grew up in Nigeria makes him of Nigerian national origin, speaking with an accent commensurate with that national origin.

1. In respect to items (i) and (ii) being a person doing an act, the case advanced on behalf of Mr Philip alleged that the NSW Police Recruitment Branch is a person performing the act of unlawful racial discrimination. In the Application, the NSW Police Force is identified as Mr Philip's 'potential employer'. Significantly, no claim is made against any other person.
2. In Mr Friend's written submissions at para.38, he puts forward the following contention:
   • 38. There was no evidence put before the Court by the Respondent as to the Police Force's practices in providing training to its staff on non-discriminatory selection and recruitment techniques. The Respondent is unable to invoke the protection of s.18A. Indeed, if staff were properly trained to follow their own guidelines it could reasonably be inferred that Mr Philip's Application would have been properly assessed on its merits in a non-discriminatory manner.
3. Mr Seck advances the contrary view regarding the operation of s.18A. He submits that it applies where there is a complaint of unlawful conduct against an agent or employee of a person under the Racial Discrimination Act. An employee can be held vicariously liable for the actions of an employee or agent if, during the course of their employment, they carry out an act that would be unlawful under Part II s.18A(1) or IIA s.18E(1) of the Racial Discrimination Act. To avoid liability, the employer has to show that all reasonable steps have been taken to prevent the employee or agent from doing the act. In Gamma v Qantas Airways Ltd No.2 [2006] FMCA 1767 Qantas was held to be vicariously liable for actions of its employees in discrimination against another employee Mr Gamma, on the basis of his race and disability. Statements made against Mr Gamma that he "looked like a Bombay taxi driver" and that he "walked up the stairs like a monkey" were found to amount to unlawful racial discrimination. Qantas was found to be vicariously liable for each of these incidences on the basis that remarks were made by, or in the presence of, a supervisor of

Mr Gamma and therefore condoned. As Mr Philip has not made a complaint against any agent or employee but rather only against the NSW Police, s.18A does not apply.

1. The second issue that must be established (item (iii) at [201]) is that the act must involve a 'distinction', 'exclusion', 'restriction' or 'preference'. These terms imply that the complainant must be treated less favourably as a result of his or her race, colour, ethnic or national origin. To make a distinction, exclusion, restriction or preference, there must be a comparison between the Applicant and a person without the Applicant's prohibited attributes to work out whether there has been different treatment between two persons.
2. Mr Seck contends that s.9(1) of the Racial Discrimination Act has been construed as encompassing the notion of direct discrimination (as that concept has been used in other Australian antidiscrimination legislation), despite the absence of any express reference to the concept of direct discrimination or any mention of a comparator: Australian Medical Council v Wilson (supra) per Sackville J at [74].
3. The argument advanced by Mr Friend on behalf of Mr Philip was that there was no need for a direct comparator for the Court to find that there has been a breach of s.9(1) of the Racial Discrimination Act and referred the Court to the decision in Baird v State of Queensland [2006] FCAFC 162. This is a decision of the Full Federal Court which held that in that case the Applicants were not required to provide a "real life comparator" or comparison against which to assess the discriminatory elements. His Honour Allsop J (with Spender and Edmonds JJ) agreeing stated:
   • [61] 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.
   • [62] 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:
   • The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention, are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence.
   • [63] For the same reasons, one does not read into s 9(1) the need to demonstrate a direct comparator or comparison. The primary judge appeared to require this in [138] in saying that there was no evidence that the Government calculated payments to other organisations using higher wage rates and that there was no suggestion that other grants were made at higher rates to facilitate higher payments to non-indigenous workers. The effectiveness of s 9(1) is not to be denied just because there is not in fact a directly comparable situation. Those suffering the disadvantage of discrimination may find themselves in circumstances quite unlike others more fortunate than they. Though, in this respect, it should be noted that the primary judge said in his reasons that he inferred that the Government was paying below-award wages to indigenous workers on the reserves which it administered: see [135] of his reasons set out at [36] above.
4. The essential question is whether the NSW Police Recruitment Branch's decision not to progress Mr Philip's Application had been based on his race, colour, ethnic or national origin. This is a question of causation. Causation in discrimination law was an issue addressed by the High Court in Purvis v State of NSW [2003] HCA 62; (2003) 202 ALR 133. The Court was asked to determine whether, 'because of', or 'on the ground of' was determined on a 'but for' test or a 'but why' test. Their Honours McHugh and Kirby JJ (who dissented but not on this point) at [166] said:
   • [166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.
5. Their Honours Gummow, Hayne and Heydon JJ at [236] said:
   • [236] For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
6. Mr Philip must show that, based on a comparison between him and other Applicants without his attributes, the "distinction" has been caused by these attributes. As there must be an equal footing, the comparison must be made against a person who could not be adequately understood during the telephone interviews and did not meet the essential requirements of being a police officer. The standard of proof applicable in this case is the ordinary civil standard: Briginshaw v Briginshaw (see [62]-[64] above) does not establish a separate standard of proof, it merely establishes that the degree of satisfaction a court may require may vary depending upon the seriousness of the allegation the Court must deal with: Duhbihur v Transport Appeal Boards & Anor [2005] NSWSC 811 at [59]- [65].

It has been common in this Court to apply the Briginshaw principle raising particularly serious allegations, including racial discrimination claims. There is nothing in this case which calls for a degree of satisfaction beyond that of the balance of probabilities. 7. Mr Seck acknowledges that even though Baird v State of Queensland (supra) establishes that there is no need for a 'real-life' comparator, the Full Federal Court recognised the requirement for a comparison to be undertaken (contrary to the view advanced by Mr Friend above). To give meaning to 'distinction', 'exclusion', 'restriction' or 'preference' based on race, colour, decent, national or ethnic origins under s.9(1) of the Racial Discrimination Act, there must be a difference upon which the distinction, exclusion, restriction or preference is based. The determination of a distinction, exclusion, restriction or preference cannot be made in a vacuum but rather involves treating someone differently compared to a person without that characteristic. 8. Mr Seck contends that Baird v State of Queensland simply disavows the requirement for an actual comparator, however, in the absence of an actual comparator, the representatives of Mr Philip must still prove the unlawful discrimination against a hypothetical comparator. This has been considered in the context of other discrimination legislation, e.g. disability discrimination: Purvis v State of NSW (supra) at [228]; Forbes v Australian Federal Police [2004] FCAFC 95 at [56] - [57]. 9. In order to undertake a valid comparison, it is necessary to construct a hypothetical comparator to determine whether Mr Philip has been subject to an act involving a distinction, exclusion, restriction or preference. Mr Seck submits that a proper comparator would be a person applying to be enrolled in the Associate Degree in Policing Practice who is not of the same race, colour, ethnic or national origin as Mr Philip. 10. Mr Friend in his written submissions (para.11) claims that: * The distinction made or preference based on was the fact that he was preference made for persons who spoke English without an accent to admission into the NSW Police Force.

The exact nature of this claim is not clear, however, the claim appears to be that there has been an act involving a 'distinction' to progress candidates who did not have an accent in preference to Mr Philip who had such an accent. Significantly, Mr Friend, on behalf of Mr Philip, has not identified the characteristics of a hypothetical comparator.

1. The third issue that must be established (item at [199]) is that the alleged act was based on Mr Philip's race, colour, ethnic or national origin. This requires showing a causal link between the NSW Police Recruitment Branch's alleged conduct and Mr Philip's prohibited attributes. Section 18 of the Racial Discrimination Act provides:
   • 18. Acts done for 2 or more reasons
   • 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.

It is sufficient if any one of the terms race, colour, ethnic or national origin is simply one of the reasons for doing an unlawful act as there is no requirement that there be more than one.

1. In Bropho v State of Western Australia [2008] FCAFC 100 per Ryan, Moore and Tamberlin JJ, the Court at [68] considers the meaning of the term "based on" where their Honours states:
   • [68] In Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission_, Weinberg J reviewed a number of relevant authorities and concluded (at 29-30):_
     • There appears to me to be no authority which binds me to hold that the phrase "based on" in s 9(1) of the Act is to be understood as synonymous with the other expressions typically used in anti-discrimination legislation such as, "by reason of", or "on the ground of".
     • 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".
2. In Purvis v New South Wales (supra) at [163], their Honours McHugh and Kirby stated:
   • [163] In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:
     • [N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.
3. In Penhall-Jones v State of New South Wales [2007] FCA 925 per Buchanan J at [85]:
   • [85] Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, 'why' an action was taken. (Emphasis added)

Mr Philip must establish, by proper proof, on the balance of probabilities (Briginshaw v Briginshaw) that the reason for the NSW Police Recruitment Branch's conduct was Mr Philip's race, colour, ethnic or national origin.

1. Mr Philip's legal representatives have not referred to any direct evidence to demonstrate the causal link between the NSW Police Recruitment Branch's alleged conduct and Mr Philip's prohibited attributes. There is not explicit admission of culpability of any of the witnesses appearing for the NSW Police and there is no document placed in evidence which demonstrates this link.
2. Mr Seck makes the submission that if Mr Philip's case is that his accent is a characteristic pertaining to a person of his race, colour, ethnic or national origin he must show that the NSW Police Recruitment branch discriminated against him on both his race, colour, ethnic and national origin and the characteristic of his accent: Kapoor v Monash University [2001] VSCA 247; (2001) 4 VR 483 at 483 (see also [99]-[102] above). Mr Philip cannot use accent as a proxy for race, colour, ethnic or national origin by itself but must prove that the NSW Police Recruitment branch discriminated against him knowing that his accent is a characteristic of his race, colour, ethnic or national origin.

1. The fourth issue that must be established (item (v) at [199]) is that

Mr Philip's human rights or fundamental freedom has been impaired. Mr Friend in his written submissions (paras.[9]-[15]) has identified "the rights to free choice of employment as contained in article 5(e)(i) of the ICERD (see [104]-[105] above). Mr Philip claims the right to free choice of employment includes the "right to seek employment in NSW police force on the basis of rights of all persons without the national or ethnic origin of an African from Nigeria" (submissions para. 11). This claim appears to be a re-characterisation of the "right to free employment" as being the "right to seek and obtain employment in the profession of his choice". However the expression "the right to free employment does not constitute a right to employment but a right not to be forced or compelled to perform labour". Rather than a positive legal right to be employed in any job, the right to free employment comprises a group of negative legal rights including freedom from slavery and servitude and freedom to leave an employer to work for another employer (see [104]-[105] above). 2. The NSW Police Recruitment Branch has not forced Mr Philip to perform work or claim legal ownership of his rights to work whereas the position is the opposite as Mr Philip has been (and continues to be) free to pursue work without restriction. As the right to free employment is a protection of a fundamental freedom rather than a positive legal right, what must be proven is that the NSW Police Recruitment Branch has nullified all impaired Mr Philip's right not to be forced to undertake work for the NSW Police. The NSW Police Recruitment Branch has not compelled Mr Philip to perform work for it nor has it prevented him from choosing to work elsewhere. 3. The courts have refused to recognise a person's right to practice or work in a particular job or profession as a human right or fundamental freedom: Australian Medical Council v Wilson (supra) at [59]-[60]. The Federal Court rejected the proposition that a person had a right to practice medicine on an unrestricted basis. In Ebber v Human Rights & Equal Opportunity Commission (supra) at 479 the Federal Court refused to recognise as a right to be registered and practice as an architect without satisfying educational qualifications as a human right. 4. The case presented on behalf of Mr Philip has not demonstrated that the NSW Police Recruitment Branch has impaired or nullified any human right or fundamental freedom.

1. The claim of direct discrimination under the provision of s.9(1) of the Racial Discrimination Act was breached on the basis that he has been denied the rights of the kind referred to in Article 5 of the ICERD. Particularly, article 5(e) sets out to eliminate social discrimination in economic, social and cultural rights which includes "the right to work, free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration. In essence Mr Philip has a right to a "fair go" to obtaining employment with the NSW Police Force. However, the claim is advanced on the basis that Mr Philip was not given a fair go as his Application was capriciously and summarily dismissed by Senior Constable Bailey of the Recruitment Branch.
2. To establish a question of claim under s.9(1) there are four essential elements to be established. The obligation lies with the representatives of Mr Philip to tender evidence to establish each of those elements. However this requirement has not been satisfied. The significant defect in the argument advanced was that the characteristic of his accent as being substituted for race, colour or national origin. Whereas the issue of his accent must be directly linked to at least one of race, colour, ethnic or national origin for discrimination to be established. As this is the main thrust of the Applicant's case, this element cannot succeed nor is there evidence before the Court to establish the other three elements necessary to succeed in a claim of direct discrimination.

Discrimination in the area of employment, s.15

1. In the Application to this Court filed on 23 July 2009 Part B-Grounds of Application, Item 5 lists s.15 of the Racial Discrimination Act. Item 3 records the discrimination complained of as:
   • Racial Discrimination in the workplace as set out in the Applicant's complaint to the Human Rights & Equal Opportunity Commission being a complaint that the complainant was discriminated against by his employer and co-employees on the basis of his African race and that he has suffered, lost of past and future wages as a result of the discriminatory conduct of each of the Respondent.
     • Particulars
     • 1. Being refused the offer of employment because of his race.
     • 2. Not being afforded the same conditions of work as other employees because of his race.
2. I note that in the written submissions provided by Mr Friend that s.15 of the Racial Discrimination Act has not been specifically addressed other than the comment that appears in para.13 which are as follows:
   • 13. Section 9 of the Act operates even if s.15 fails to capture the selection and interview process that the Applicant went through. The approach of hearing Commissioner Innes in Kunnle v Commonwealth of Australia (in s.3.4) should be followed and s.9(1) of the RDA Act captures the situation where it is determined s.15 does not apply.
3. Section 15(1)(a) applies where an employer refuses or fails to employ a person for work which is "available" and for which he or she is "qualified". It has a limited scope in that it applies to hiring employees but does not apply to discriminatory recruitment practices (see [110] above). The uncontested evidence is that there were no positions available but there were expressions of interest advertised. This would involve undertaking the Associate Degree in Policing Practice to be trained at the Goulburn Police Academy. The decision made was to decline to progress Mr Philip's Application further, but no decision was made to refuse or fail to employ Mr Philip.
4. At this stage, Mr Philip had satisfied the academic requirements for admission into the Associate Degree in Policing Practice at Charles Sturt University and was attempting to complete his professional suitability assessment. In addition, Mr Philip was still required to satisfy a number of requirements including:

1. demonstrating his professional suitability including background checks, security clearances and English proficiency requirements; 2. passing a medical assessment, physical capacity and psychometric tests;

1. obtaining a typing certificate indicating that he could type more than 25 words per minute;

1. a swimming certificate stating his ability to swim more than 100 metres unaided; and 2. a current Senior First Aid certificate including the ability to use a resuscitation mask.
2. Upon the successful completion of all of these requirements, Mr Philip would have then been placed in a pool of eligible Applicants for a competitive selection process. Depending on the NSW Police Force Human Resource needs, Charles Sturt University would then make a number of offers to Applicants inviting them to enrol in the Associate Degree in Policing Practice. As the admission eligibility guide and course information for the Associate Degree indicates, whilst a satisfactory professional suitability assessment may assist entry into the Associate Degree, it should not be construed as a guarantee of future employment as a Police Officer. Positions within the NSW Police Force are competitive and based on comparative Application assessments and the NSW Police Forces human resource needs.
3. Section 15(1)(a) requires that the person seeking employment possesses the qualifications for that position. Clearly, Mr Philip was not yet in that position as there are a number of requirements that are listed above that are yet to be satisfied prior to being placed on the eligibility list for ranking. Once on that list he still has to be above the threshold set by the NSW Police as their recruitment requirements. Consequently, a claim under s.15(1)(a) cannot succeed.
4. Mr Philip cannot bring a claim under s.15(1)(b) of the Racial Discrimination Act as this provision only applies to a person who has been employed with that particular employer and prohibits differential treatment between employees in the terms and conditions of employment and opportunities for training and promotion where employees have the same qualifications and are employed in the same circumstances. As Mr Philip has never been employed by the NSW Police this provision of the Act does not apply and is not available to Mr Philip in these proceedings.

1. The main argument advanced by Mr Friend on behalf of Mr Philip seeks to draw the adverse inference about the NSW Police Recruitment Branch's true reasons for declining to progress Mr Philip's Application as follows:
   • An inference can be made at the refusal to give the Applicant a fair go in assessing his speech and accent in terms of his employment can be made on the base of the conduct of the members of the Respondent. In particular, the question 'are you a refugee' indicates an inference that it was conscious in the Respondent officer's mind that the Applicant was a distinct national origin distinct from the basis of the Australian national Applicants. An inference can be made from the recruitment officer's switched off [...] to the Applicant's ability to communicate and by failing to follow the formal procedure set out in the internal working documents (tab 3 to the affidavit of Inspector Malone). The Respondent failed to give the Applicant the opportunity to obtain employment. (submissions para.24)
2. Mr Seck submits that it is not controversial that no direct evidence exists demonstrating that the NSW Police Recruitment Branch discriminated against Mr Philip on these grounds. Further, he rejects that the allegations said to give rise to the inferences or that the allegations, even if proven, are capable of giving rise to the inference that the conduct occurred based on Mr Philip's race, colour, ethnic or national origin. The legal principles in respect to drawing inferences is set out at [114] - [120] above.
3. Mr Friend advanced four main allegations which he argues supports the inference that the NSW Police Recruitment Branch made its decision based on Mr Philip's race, colour, ethnic or national origin based on the following conduct:

1. the Recruitment Branch's alleged failure to follow formal procedures set out in the working documents in the conduct of telephone interviews (submissions para.24, 35) (first allegation); 2. Senior Constable Bailey's question to Mr Philip asking whether he was a refugee during the second interview (submissions para.24, 36) (second allegation);

1. the Recruitment Branch's alleged treatment of Mr Philip's Application in a contemptuous, rude, cursory capricious manner (submissions para.35) (third allegation); and

1. Mr Philip's accent being taken into account in assessing his communication skills as they switched off the Applicant's [sic] ability to communicate (submissions para.24) (fourth allegation).

1. Mr Seck submits that in conducting the first interview, Ms Faber used the form known as "Internal Working Document Telephone interview" (Annexure D to Ms Faber's affidavit). In cross-examination, Ms Faber described the document as containing a guide for the type of questions to ask to test an Applicant's language proficiency and communication skills (Transcript 11.3.10 p.52; Faber affidavit, para.5-9). Inspector Malone stated that although the preferred method was to follow the Internal Working Document Telephone Interview, it merely reflects a guideline for recruitment officers rather than a mandatory rule. The Inspector stated that Ms Faber simply applied the NSW Police Force's normal practice of conducting the telephone interview and obtained more information at the same time (Malone affidavit, para.6).
2. The purpose of the telephone interview was to assess Mr Philip's communication skills. Ms Faber engaged Mr Philip in normal conversation by asking for additional information regarding his security clearances. Whether the questions listed on the telephone interview sheet were asked or other matters discussed, it did not change the nature and purpose of the conversation and the capacity of

Ms Faber to assess Mr Philip's communication skills. 3. Significantly, Ms Faber did not make the ultimate decision to decline to progress Mr Philip's Application. Rather, it was Senior Constable Bailey who made that decision. I am not satisfied that the argument advanced by Mr Seck that Senior Constable Bailey conducted the second telephone interview, the guide contained in the internal working document did not apply. The evidence does not support this contention. 4. I do accept that Ms Faber and Senior Constable Bailey did not comply with the standard recruitment branch's telephone interview procedures. However, this did not materially impact on the outcome. Senior Constable Bailey came to her own assessment of Mr Philip's English Communication skills and his attitude based on her own direct experience. I am satisfied that there is insufficient material to establish that Senior Constable Bailey's decision to decline to progress

Mr Philip's Application had been influenced by Ms Faber's own telephone interview. In the affidavit of Ruth Bailey, para.4, she states: * On 9 September 2008 Kath Faber asked me to conduct a second telephone interview with the Applicant. I believe this is the telephone conversation the Applicant is referring to in paragraphs 9 and 10 of his affidavit sworn 3 September 2009. It is standard procedure for unsuccessful or doubtful English communications assessments to be conducted on a second occasion by a staff member out of fairness to the Applicant. 5. Similarly, in the affidavit of Inspector Malone, paras.6 and 7 he states: * 6. As is normal practice, Mrs Faber contacted Victor Philip to conduct both the Telephone Interview and also to appraise him of the need to correctly complete all parts of the Professional Suitability Application form. Mrs Faber recorded notes of her telephone conversation on the Telephone interview "Internal Working Document", a copy which is behind Tab 3 of AM1. * 7. As a result of the Telephone Interview conducted by Mrs Faber, the Recruitment File was handed to Senior Constable Ruth Bailey to conduct a secondary Supervisor's Telephone Interview. 6. The Internal Working Document - Telephone Interview form completed by Mrs Faber contains Mr Philip's name and date of birth and a tick in the box next to the statement: * Poor English communication skills i.e. difficult to understand - refer to Team Leader.

Followed by a box that was ticked next to the statement:

Applicant has an accent.

Further comments: I spoke to Victor regarding his overseas clearance from Nigeria and forms in the PSA that are incomplete. I could understand him at times throughout the conversation however Victor became irate about having to obtain the clearance and the time and cost associated with the paperwork. He questioned why he was required to obtain such documentation given that he had been in Australia for nearly 10 years.

When Victor became irate, he started to talk very fast and with his accent, I was unable to understand 'chunks' of the conversation.

I recommend that a further telephone interview be conducted to further assess his English communication skill and attitude.

1. The relevant passages of Inspector Malone's sworn testimony and the cross-examination is reproduced at [135] above. A specific passage relevant to this context:
   • Mr Friend: Right. Is there a reason why telephone interview process is preferred, sir?
   • Mr Malone: Phone interview process is the basic process where we get an idea of an Applicant's proficiency communication skills - English communication skills. If the assessment - the basic assessment - is not suitable or not believed suitable, then it's a staged process where we can then basically ramp up the process to the supervisor to conduct a secondary interview. If the supervisor still has any doubts about the Applicant's ability or proficiency, they would then refer it on to either the coordinator or, eventually, to myself for review. If I then contacted an Applicant and I still had any doubts at all, then I would perhaps recommend that the Applicant come in before a panel interview (Transcript 11.03.2010 p.87)
2. I am satisfied that there is an insufficient basis to establish an inference that the Recruitment Branch or specifically Senior Constable Bailey based its decision on Mr Philip's race, colour, ethnic or national origin. It does not follow that a failure to follow an internal procedure document demonstrates that there is a causal link between the Recruitment Branch's decision and Mr Philip's attributes.

1. Mr Friend submits that the question Are you a refugee? indicates an inference that it recruitment officer was conscious of the fact that

Mr Philip was of a distinct national origin and different to Australian Applicants. 2. Mr Seck acknowledges that Senior Constable Bailey admits that she has no independent recollection of the discussion with Mr Philip on

9 September 2008. Senior Constable Bailey does not deny that she may have asked Mr Philip whether he was a refugee (Bailey affidavit, para.6). Senior Constable Bailey's explanation for asking these questions was based on her normal practice and that she may have asked the question to assist Mr Philip to obtain overseas criminal clearance by making enquiries with the Australian Red Cross and the Department of Immigration and Ethnic Affairs (Bailey affidavit, para.7). She states that she may have asked this question because in her experience refugees often found it difficult to obtain overseas criminal clearance. Mr Seck contends that if Senior Constable Bailey asked Mr Philip whether he was a refugee, she had a legitimate but innocuous reason for doing so. 3. In respect to this question, the Court has strongly conflicting positions between Mr Philip and Senior Constable Bailey. Mr Philip states that he received the phone call on his mobile phone while he was on a busy public thoroughfare. After introducing herself as Ruth Bailey, the following conversation ensued: * Bailey: What were you doing in Germany? * Philip: Playing soccer. * Bailey: How did you come to Australia? Are you a refugee? * Philip: No, I'm not a refugee. I came to Australia from Germany. (Philip Initial Affidavit para.10)

Mr Philip claims that he was highly offended by this question and that feeling of offense remains. Senior Constable Bailey offers a logical explanation however, the context in which it was asked could have been more appropriately addressed which may have removed the offense felt by Mr Philip.

1. However, the enquiry as to whether Mr Philip was a refugee does not lead to a logical inference that the Police Recruitment Branch based its decision not to progress his Application based on his race, colour, national or ethnic origin. I accept that the form and nature of Senior Constable Bailey's questions could have been more discrete to avoid any offense that Mr Philip or any other immigrant may feel on this wholly evocative issue of being identified as a refugee but on the balance of probabilities I cannot be reasonably satisfied that a logical inference arises that the ultimate decision not to progress Mr Philip's Application was based on his race, colour, ethnic or national origin.

1. The third allegation brought by Mr Philip was that the Recruitment Branch dealt with his Application in a "contemptuous" "rude" "cursory" and "capricious" way. Mr Friend advances this claim in his written submissions at para.35 which states:
   • The Applicant contends that the court should accept the clear and consistent version of events and the conversations given by Mr Philip in his statements and in cross examination. The Applicant further contends the unreliable evidence given by Constable Bailey and Ms Faber. The former claims to have no recollection whatsoever and Ms Faber's recollection was limited. What is clear above all else that the Recruitment Branch's own procedures were ignored without explanation and Mr Philip's Application was treated in a contemptuous, rude, cursory [and] capricious manner.
2. Mr Seck advances the contrary argument in that the recruitment branch dealt with Mr Philip's Application in a professional manner and had a fair process in place to evaluate Mr Philip's English language skills. The entire assessment process has been clearly and thoroughly documented. Mr Seck claims that the evidence demonstrates that the recruitment branch applies an exhaustive and transparent process designed to ensure that Applicants are given a proper opportunity to express themselves in normal conversation to assess their communication skills and a clear protocol for undertaking the assessment. The recruitment branch had an internal working document that set out a guide to conduct the first interview (Faber affidavit, Annexure C). It had a staged process to escalate matters to a more senior team member to obtain a second opinion. Inspector Malone gave evidence that the matter could be progressed to him and others where there is any doubt about the initial assessment.
3. Mr Seck submits that Senior Constable Bailey prepared a contemporaneous file note of the conversation (Bailey affidavit, Annexure A) and completed a written assessment of Mr Philip's professional suitability (Bailey affidavit, Annexure B). She had to rank Mr Philip on a numerical scale that had clear pass and fail benchmarks. Despite these submissions, the evidence clearly indicates that Ms Faber did not follow the internal working document to conduct the first interview. Ms Faber nor Senior Constable Bailey indicated to

Mr Philip that the purpose of the telephone call was to carry out an assessment of his English language skills. On the material before the Court, both interviewers raised issues with Mr Philip with respect to the completion of his professional suitability assessment form and did not make reference to the fact that they were also carrying out an assessment. Consequently, I am satisfied that it has been established that there were flaws in complying with the English language assessment process. 4. However, although the English language assessment process was not adhered to this does not permit an inference to be drawn that the recruitment branch officers base their decision on Mr Philip's race, colour or ethnic national origin. An individual may make a decision that is completely unmeritorious, capricious or unreasonable but because no cogent reason for the alleged conduct can be shown that the alleged conduct must have occurred on grounds of race, colour, ethnic or national origin: Glasgow City Council v Zafar (supra) at 1662-1663.

1. The fourth allegation brought by Mr Philip was that his accent was used to make an adverse inference that there is a causative connection between the recruitment officer's decision not to progress his Application and his race, colour, ethnic and national origin. In the submissions advanced by Mr Friend, it implies that the recruitment officers "switched off" once they heard his accent and did not make any further attempt to assess the adequacy of his English language skills.
2. Mr Seck advances the argument that Mr Philip did not progress to the next stage of his assessment because of his poor attitude, rudeness and aggressive manner. The review of the recruitment officers was that

Mr Philip failed to meet the minimum communication skills standards. The Court was referred to Cronin v Department of Social Security [1992] HREOCA 3 which is the decision of Sir Ronald Wilson after his retirement from the High Court in his capacity as Commissioner of Human Rights & Equal Opportunity Commission. * She [the Applicant] speaks with a marked accent, and

Mr McIntyre [on behalf of the Applicant] submitted that, in the context of this issue her accent was the principle factor giving rise to racial discrimination. I am unable to accept the proposition, either as a statement of general principle or in the circumstances of this case. It may often happen that language difficulties will result in apparently differential treatment in a work situation, but it does not necessarily follow that the treatment is unfair or that the reason for it is the race or nation or ethnic origin of the worker.

1. When considering the issue of whether any inference can be drawn in respect to Mr Philip's accent, this must be done in the context that the NSW Police Force does not automatically exclude persons on the basis of their English language skills alone. Inspector Malone in his affidavit at paras.18-19 indicates:
   • 18. From 2007-2009, police recruitment branch referred 30 Applicants to the Adult Migrant English service ("AMES") as a result of telephone interviews revealing concerns with English communication skills. None of these Applicants were rejected outright from the professional suitability process due to their concerning English communication skills. These Applicants were sent a letter encouraging them to pursue opportunities to enhance the English language proficiency and to re apply at a later time. At tab 8 of AM1 is a copy of the standard formatted response to Applicant who are assessed as having concerning English communication skills.
   • 19. The NSW PF is an organisation which abides by and promotes equal employment opportunity. The NSW PF recruitment branch conducts targeted recruitment for Applicants from culturally and linguistically diverse and Aboriginal and Torres Strait Islander communities. The NSW PF are committed to increasing the number of police officers from CALD and ATSI backgrounds within our organisation. The Commissioner of Police, Andrew Scipione is fully supportive of such targeted recruitment as can be seen by his address to potential Applicants in the "message from commissioner" printed in the "into the blue" recruitment booklet. Police Recruitment is about diversity - we want a cross section of our community to apply to the officers.
2. I accept that the Recruitment Branch's decision was not based exclusively on Mr Philip's failure to demonstrate adequate English communication skills but rather his abrasive attitude displayed during his telephone interviews. On the material before me, it would appear that Mr Philip would not have been declined to progress his Application based solely on his English language skills or his accent. As I have indicated above, Mr Philip gave evidence before this Court for approximately two hours and during that time there was no need to request Mr Philip to repeat himself because he was not understood due to his accent. Mr Friend, nor Mr Seck nor myself had to ask Mr Philip to repeat any of his evidence because he was not understood due to his accent.

1. In Mr Philip's Application filed in these proceedings he claims relief for:

1. injunction; and 2. an apology.
2. Mr Friend seeks compensation for:
   1. loss of opportunity; and
   2. declaration.
3. The Australian Human Rights Commission Act s.46PO(4) empowers this Court to order relief arising under this section.
   • (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
   • (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
   • (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
   • (c) an order requiring a respondent to employ or re-employ an applicant;
   • (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
   • (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
   • (f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
4. The learned authors of the Human Rights & Equal Opportunity Commission in their book Federal Discrimination Law chapter 7 indicate the general approach to damages in discrimination cases noting that tort principles apply.
   • The Full Federal Court discussed the approach to damages under the SDA in the matter Hall v Sheiban. Lockhart, Wilcox and French JJ delivered separate judgments and while there is no clear ratio on the issue of damages, the case has been cited for the proposition that torts principles are a starting point for the assessment of damages under discrimination legislation, but those principles should not be applied inflexibly.
   • Lockhart J expressed the view that:
     • As anti-discrimination, including sex discrimination, legislation and case law with respect to it is still at an early stage of development in Australia, it is difficult and would be unwise to prescribe an inflexible measure of damage in cases of this kind and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees with anti-discrimination law. Although in my view it cannot be stated that in all claims for loss or damage under the Act the measure of damages is the same as the general principles respecting measure of damages in tort, it is the closest analogy that I can find and one that would in most foreseeable cases be sensible and sound test. I would not, however, shut the door to some case arising which calls for a different approach.
   • His Honour went on to say that, generally speaking, the correct approach to the assessment of damages under the SDA is to compare the position of the complainant might have been in had the discriminatory conduct of the Respondent. This approach has been followed in a number of subsequent cases under the RDA: Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 at [89]; Borg v Commissioner, Department of Corrective Services (2002) EOC 93-198, 76,365.

1. In the Application, Part A - orders sought it states:
   • 2. Compensation for loss of income in the sum of $160,000. [argument advanced]
2. Mr Friend in his oral and written submissions has not advanced any specific argument addressing economic loss nor has there been any evidence adduced directly to the issue of economic loss. The Court has not been provided with details as to what a member of the NSW Police Force could expect to earn over any nominated term of employment, nor any amount of earnings from alternate employment that would have to be deducted. In these circumstances there is no basis for awarding compensation for economic loss.

1. Mr Philip is a simple simply asserts his subjective feelings. Mr Friend in his oral submissions submits that Mr Philips was and still is upset. Mr Friend invites the Court to accept that observation. The Court was invited to make a finding for Mr Philip by awarding damages for his hurt and upset.
2. At paragraph 40 of Mr Friend's written submissions he states:
   • [40] The Applicant was upset and distressed at the rejection of his Application. He was visibly and genuinely upset at the discrimination whilst giving evidence. He states in his Principle affidavit that his treatment by the recruitment branch made him feel as if he did not belong in Australia. For someone married to an Australian woman Kylee Brown that is grave hurt.
3. No medical evidence of psychological damage has been adduced on behalf of Mr Philip which is required to establish the basis for damages of this kind: Phillis v Mandic [2005] FMCA 330 per Raphael FM at [24] where His Honour states:
   • [24] It is often the case that the Courts are assisted in this determination by medical evidence in the form of psychological or psychiatric assessments. Given that it is the effect of the accepted acts of harassment and not the act itself that is relevant, it is appropriate that due regard is had to the expertise of the medical profession.

The circumstances of this case do not involve a serious case of racial abuse and does not fall into the category warranting damages of this nature.

1. To the extent that Mr Philip claims non economic loss on the basis of aggravated damages, he must demonstrate that the recruitment branch's manner of conduct justified the award: Elliot v Nanda (1999) EOC 92-988; Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526; (2004) 210 ALR 645, 657 [69] per Walters FM where His Honour stated
   • [69] In Gray v Motor Accident Commission (1998) 196 CLR 1 ; 158 ALR 485 ; 28 MVR 1, Gleeson CJ, McHugh, Gummow and Hayne JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax and Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149. In the passage, Windeyer J described the difference between aggravated damages and exemplary damages as being:
     • ... that aggravated damages are given to compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence.
2. It has to be shown that the recruitment branch acted high handedly, maliciously, insultingly or oppressively in the act of discrimination: Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217 at [239]. On the material before the Court I am not satisfied that the recruitment branch's conduct falls into this category that would justify an award of damages under this head.

1. The Court's power to order payment of money under s.46PO(4) of the Australian Human Rights Commission Act is limited to financial compensation for loss or damage: Frith v Exchange Hotel [2005] FMCA 402 at [99]; Hughes v Car Buyers (supra) at [71]; Font v Paspaley Pearls Pty Ltd [2002] FMCA 142 at 158-167.

1. In the Application, Part A- Orders sought, item 4 states:
   • The Respondent be restrained from continuing or repeating the discriminatory conduct.
2. No submissions were made supporting this claim nor has Mr Philip sought to reapply for admission into the NSW Police since his original Application was not progressed. I note the comments of his Honour Drive FM in Howe v Qantas Airways Limited [2004] FMCA 242 at [386] where he said:
   • The type of orders available to the Court under section 46PO(4) is not exhaustive, however provides an indication of the types of orders that are likely to be considered appropriate by the Court. The Respondent submits that section 46PO(4) does not extend to the making of an order requiring the taking of positive actions in the future, and does not therefore empower the Court to make the order sought by the Applicant. The Respondent submits that if Parliament had intended for section 46PO(4) to extend to orders affecting future conduct, it would have specifically including this type of relief within the provision. For example, this type of order is expressly included in section 87(2)(f) of the Trade Practices Act 1974 (Cth), which enables the court to make an order:
     • "directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage".
3. To be effective, an injunction must maintain the status-quo as it exists prior to the date of cessation of an Applicant's employment or, the Applicant's rights, which would, if he is successful in ultimately obtaining an order for reinstatement, include all his entitlements or rights. However, in this matter, Mr Philip was not employed by the NSW Police and the issue of reinstatement or accumulated entitlements do not exist. The Court's power to issue an injunction against a Respondent is probably also supported by the Court's implied incidental power to make orders necessary or incidental to its express powers: Skipworth v State of Western Australia & Ors (No.2) [2008] FMCA 544 per Lucev FM at paras.28-38, including its powers to act in matters within it's jurisdiction (including any associated jurisdiction) as a Court of Law and Equity under s.8(3) of the Federal Magistrates Court Act 1999 (Cth) and under s.15(a) of the Federal Magistrates Court Act with powers to make interlocutory orders, including injunctions. Clearly, none of these issues arise in this matter and there is no justification for the issue of an injunction.

1. The learned authors of the Human Rights & Equal Opportunity Commission in their book "Federal Discrimination Law", chapter 7, indicate the divergent views that have been expressed by the Courts as to the appropriateness of ordering an apology. In Creek v Cairns Post Pty Ltd (2001) 112 FCA 352, her Honour Kiefel J noted that a short apology would have been ordered had the discrimination complaint been made out, as it may have helped vindicate the Applicant in the eyes of her community. Her Honour further noted that the failure of the Respondent to acknowledge that it had acted for racist reasons and the withholding of an apology would have been taken into account in assessing the extent of any injury and corresponding compensation to redress it.
2. Similarly, his Honour Driver FM in Forbes v Commonwealth [2003] FMCA 140, Cooke v Plauen Holdings Pty [2001] FMCA 91, and Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122, his Honour took into account the Applicants' entitlement to an apology. However, a different approach was taken in Jones v Toben [2002] FCA 1150 per Branson J at [106] where her Honour expressed the view that it was not appropriate to "seek to compel the Respondent to articulate a sentiment that he plainly enough does not feel". Her Honour cited with approval the view of Healy J in Jones v Skully (supra) at [245] that "prima facie, the idea of ordering someone to make an apology is a contradiction in terms".
3. There are no specific oral or written submissions addressing the issue of an apology to Mr Philip. Further, I accept the submissions made by Mr Seck that ordering the Respondent as the State of New South Wales to apologise would be hollow and meaningless. Unless the Respondent is a natural person, the Courts have declined to exercise their discretion to order legal entities to apologise: Grulke v KC Canvas [2000] FCA 1415 at [4]. Given that the Respondent denied the alleged discriminatory conduct took place, there is not much utility in ordering an apology as it compels the expression of a sentiment that is neither generally believed nor capable of being expressed other than by a real person: Lee v Smith (No.2) [2007] FMCA 1092 at [16].

1. Paragraph 41 of Mr Friend's submissions states that Mr Philip claims he should be compensated for his loss of:
   • The chance of employment in the New South Wales Police Force.

Also claimed in this submission is Mr Philip's acknowledgement that he had:

However the political basis for compensation has not been identified nor is there any specific evidence adduced in support of the claim. Assuming that the claim is advanced based on tortious principles (Hall v Sheiban (supra)?) then the claim is based on general damages: Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 but the law will not compensate the loss of chance where the claim is speculative in nature: Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 per Latham CJ and Williams J at 134-135; Chappel v Heart (1998) 195 CLR 232 per Gummow J at [82].

1. Mr Philip was participating in a multi staged competitive merit based selection process where he had satisfied the requirements of stage 1 and commenced the second stage of assessment. There was a number of remaining stages that he was required to complete before he would receive an offer for employment. Other than the communication skills requirement Mr Philip had a number of other issues that had to be satisfied before he could progress this stage. Assuming that he had achieved a satisfactory completion at this stage there is any evidence of the value of the loss of chance that he claims and there is no basis a quantum for compensation.

1. In para.39 of Mr Friend's submissions he seeks a declaration "that the actions of the Respondent were in breach of the Race Discrimination Act but does not specifically articulate the exact terms of the declarations sought. In Commonwealth v Evans [2004] FCA 654 Branson J rejected the submission that s.46PO(4)(a) of the Act authorised the making of the declaration that the terms such as: the Respondent has committed unlawful discrimination on the basis that it was too general in its terms. Consequently, I do not believe that a declaration should be made in this matter.

I certify that the preceding two hundred and seventy-six (276) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM