Philip v State of New South Wales [2011] FMCA 308 - FMCA 2011 case summary — Zoe

[18]

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.

[19]

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.

[20]

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.
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.
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.
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.
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).
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.
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.
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'.
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).
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'.
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].
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'.
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.
Mr Friend contends that the Federal Magistrates Court has jurisdiction to determine this matter pursuant to s.46PO(3) of the HREOC Act.

[29]

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.
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.
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.
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.
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.
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".
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.
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.
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

[31]

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.

[33]

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.

[41]

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.
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.
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.

[43]

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.
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.
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.
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.

[48]

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.
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.
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.
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.
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.
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%;

[51]

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.
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).
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.
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.

[56]

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).
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).
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].
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.

[58]

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.

[63]

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.
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.
In indirect discrimination, the following aspects must be proven:

[68]

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.
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.

[72]

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.
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:
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.
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].
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;

[74]

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.
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.
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)
Mr Friend submits that Mr Philip's explanation as to why he said his tone was moderate should be accepted.
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)
Mr Friend submits that the focus of the cross-examination was the terms of the morning conversation ("first conversation) referred to in

[86]

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)
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.
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?
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. ?

[88]

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.

[97]

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?".

[116]

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

[119]

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.
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.
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.

[129]

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

[131]

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

[134]

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.
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.
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.
To prove a claim of indirect discrimination, the following issues must be proven:

[142]

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.
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).

[144]

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).
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').
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.
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.
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.
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

[146]

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

[152]

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.
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.
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

[154]

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.
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].
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.
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.
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".
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].

[155]

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.

[159]

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".
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.
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)

[163]

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.

[166]

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.
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.
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.
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:

[169]

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.
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.
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.
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.

[185]

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.
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.
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

[190]

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.
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.

[192]

injunction; and 2. an apology.
Mr Friend seeks compensation for:
1. loss of opportunity; and
2. declaration.
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.
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.

[198]

In the Application, Part A- Orders sought, item 4 states:
- The Respondent be restrained from continuing or repeating the discriminatory conduct.
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".
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.

[199]

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.
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".
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].

Parties

Applicant/Plaintiff:

# Philip

Respondent/Defendant:

State of New South Wales \[2011\] FMCA 308

Legislation Cited (15)

Proceedings Act 1988

Court of Australia Act 1976

Discrimination Act 1975

Magistrates Court Rules 2001

Discrimination Act 1995

Practices Act 1974

Magistrates Court Act 1999

Rights and Equal Opportunities Commission Act 1986

Rights and Equal Opportunity Commission Act 1998

Magistrates Act 1999

Australia Human Rights Commission Act 1986

Discrimination Act 2004

Discrimination Act 1992

Discrimination Act 1984

Opportunity Act 1984

Cases Cited (107)

Philip v State of New South Wales [2011] FMCA 308 (10 June 2011)

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

Azriel v Land & Housing Corporation [2006] NSWCA 372

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bropho v State of Western Australia [2008] FCAFC 100

Carn v Commissioner, Department of Corrective Services [2002] NSWADT 131

Chew v Director General of the Department of Education & Training [2006] WASAT 248

Commonwealth v Evans [2004] FCA 654

Commonwealth v Human Rights & Equal Opportunity (Dopking No 1) [1993] FCA 547; (1994) 46 FCR 191

Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91

Charles v Fuji Xerox Australia Pty Ltd (Australia) [2000] FCA 1531; (2000) 105 FCR 573

Commission of Racial Equality v Dutton [1988] EWCA Civ 17; [1989] QB 783

Dawkins v Department of Environment [1993] ICR 517

Dare v Pulham [1982] HCA 70

Department of Health v Arumugham [1988] VicRp 42; [1988] VR 319

Duhbihur v Transport Appeal Boards & Anor [2005] NSWSC 811

Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3

Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122

Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342

Ferrus v Qantas Airways Ltd [2006] FCA 812

Forbes v Australian Federal Police [2004] FCAFC 95

Forbes v Commonwealth [2003] FMCA 140

Font v Paspaley Pearls Pty Ltd [2002] FMCA 142

Frith v Glen Straits Pty Ltd t/as Exchange Hotel [2005] FMCA 402

Gamma v Qantas Airways Pty Ltd [2006] FMCA 11

Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953

Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331

Grulke v KC Canvas Pty Ltd [2000] FCA 1415

Howe v Qantas Airways Ltd [2004] FMCA 242

Hughes v Car Buyers Pty Ltd [2004] FMCA 526

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

Jones v Toben [2002] FCA 1150

Kapoor v Monash University [2001] VSCA 247; (2001) 4 VR 483

Konrad v Victoria Police [1999] FCA 988; (1999) 91 FCR 95

Lee v Smith (No 2) [2007] FMCA 1092

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1993) 110 ALR 449

Miller v Wertheim [2002] FCAFC 156

Monash University v Kapoor [1999] VSC 463

Penhall-Jones v State of New South Wales [2007] FCA 925

Perera v Commissioner of Corrective Services [2007] NSWADT 115

Purvis v State of NSW [2003] HCA 62

Qantas Airways Pty Ltd v Gamma [2008] FCAFC 69; (2001) 167 FCR 537

Re Australian Education Union; ex parte State of Victoria [1995] HCA 71; (1995) 184 CLR 188

Ross-Teigan & Anor v Wiltshire & Anor [2002] QADT 6

Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251

Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

Sharman v Legal Aid QLD [2002] FCAFC 196; (2002) 115 IR 91

Skipworth v State of Western Australia & Ors (No 2) [2008] FMCA 544

Sqillaciotti v Roads & Traffic Authority of NSW & Anor [2002] NSWCA 133

State of Victoria v McKenna [1999] VSC 310; (1999) 140 IR 256

State of Queensland v Pioneer Concrete (QLD) Pty Ltd [1999] FCA 499

Thomspon v Orica Australia [2002] FCA 939; (2002) 116 IR 186

Trapman v Sydney Water Corporation & Ors [2009] FMCA 942

Vijayamkumar v Qantas Airways Ltd [2009] FMCA 736; (2009) 233 FLR 369

Walker v State of New South Wales [2003] NSWADT 13

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

Williams v Tandanaya Cultural Centre [2001] FMCA 46

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161

(1996) 68 FCR 46

(1938) 60 CLR 336

(1998) 195 CLR 232

(1998) 84 FCR 7

(1994) 46 FCR 191

(2000) 105 FCR 573

(1993) 119 ALR 133

(1997) 80 FCR 78

(2001) 1111 FCR 20

(1959) 101 CLR 298

(2001) 4 VR 483

(1989) 168 CLR 165

(1993) 10 WAR 523

(1993) 110 ALR 449

(1997) 75 FCR 216

(1995) 184 CLR 188

(1994) 179 CLR 332

(1999) 140 IR 256

(1988) 94 ALR 408

(2009) 233 FLR 369

(2008) 1111 FCR 20

(1995) 129 ALR 455

(2001) 163 FLR 203

(2005) 194 FLR 156

(2003) 217 CLR 92

(1936) 55 CLR 367

(2004) 8 VR 120

(2003) 202 ALR 133

(1997) 191 CLR 1

(2004) 210 ALR 645

(1989) 20 FCR 217

(1998) 196 CLR 1

(1966) 117 CLR 118

(1999) 91 FCR 95

(1952) 85 CLR 352

(1998) 90 FCR 202

(2001) 167 FCR 537

(1989) 23 FCR 251

(2002) 115 IR 91

(2002) 116 IR 186

(1996) 187 CLR 416

(1991) 173 CLR 349

(1983) 152 CLR 570

(2002) 120 FCR 243

(1999) 94 FCR 341

(1994) 124 ALR 353

(1985) 159 CLR 70

(1946) 74 CLR 127

Philip v State of New South Wales [2011] FMCA 308

At a glance

Court

Decision date

Source

Judgment (205 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (107)

Philip v State of New South Wales [2011] FMCA 308 (10 June 2011)