Alkhousi v The Star Entertainment Qld Ltd & Anor [2024] QCAT 433

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Alkhousi v The Star Entertainment Qld Ltd & Anor [2024] QCAT 433 PARTIES: MOHANAD ALKHOUSI (applicant) v THE STAR ENTERTAINMENT QLD LIMITED (first respondent) KY MITCHELL (second respondent) APPLICATION NO/S: ADL058-23 MATTER TYPE: DELIVERED ON: Anti-discrimination matters 26 September 2024 HEARING DATE: 18 September 2024 HEARD AT: Brisbane DECISION OF: Member Roney KC ORDER/S: The application is dismissed. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. CATCHWORDS: HUMAN RIGHTS – ANTI-DISCRIMINATION – DIRECT DISCRIMINATION – direct discrimination in the goods and services area on the basis of religion and race – exclusion of a patron from a casino by casino operator for alleged dishonesty by the patron – choice of comparator Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 7, s 133 Casino Control Act 1982 (Qld), s 92 Human Rights Act 2019 (Qld), s 58, s 59 Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) Age Discrimination Act 2004 (Cth) Shamoon v Chief Constable [2003] UKHL 11 Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 Lyons v State of Queensland [2016] 2 Qd R 41 Dovedeen Pty Ltd & Anor v GK [2013] QCA 116 -- 1 of 38 -- 2 Lyons v State of Queensland (No 2) [2013] QCAT 731 Lyons v State of Queensland [2014] QCATA 302 Lyons v State of Queensland [2016] HCA 38, 259 CLR 518 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Australian Iron and Steel Pty Ltd v Banovic (1989- 1990) 168 CLR 165 Briginshaw v Briginshaw (1938) 60 CLR 336 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49 APPEARANCES & REPRESENTATION: Applicant: Self-Represented Respondent: Pawel Zielinski of Counsel instructed by Gadens Lawyers Introduction and limits to the scope of the issues for determination ........................ 2 The material relied upon ........................................................................................... 5 The objective evidence of what happened on 3 April 2022 ..................................... 6 Relevant legal principles ......................................................................................... 16 Factual findings relevant to discrimination in the goods and services area on the basis of religion and race ........................................................................................ 30 Disposition, Orders and Costs ................................................................................ 38 REASONS FOR DECISION Introduction and limits to the scope of the issues for determination [1] On 8 May 2022, the applicant Mr Alkhousi made a complaint to the Queensland Human Rights Commission (‘QHRC’) alleging that he was subjected to direct discrimination on the basis of his 'race' and religion, when he was 'expelled' from the Brisbane Treasury Casino and excluded from using it indefinitely thereafter, and during the events surrounding his being 'expelled' from the Casino. His QHRC application also potentially appeared to allege direct discrimination on the basis that, by reference to his Muslim name, he was presumed to be of Islamic faith. The matter was referred to this Tribunal on the basis that it was a complaint about race discrimination although this Tribunal is not bound by that characterisation. -- 2 of 38 -- 3 [2] It is common ground that on the afternoon of 3 April 2022, Mr Alkhousi was excluded from the Treasury Brisbane Casino which the first respondent operated, based on a decision made by the second respondent, Mr Ky Mitchell (‘Mr Mitchell’) who is now employed by the first respondent in the position of Security Training Manager. At the time the Exclusion Direction was issued, Mr Mitchell was engaged in the position of Security Duty Manager. [3] It is uncontroversial that while the applicant was on the premises that day, Mr Alkhousi was alleged by staff, including specifically Mr Mitchell, to be responsible for a credit theft from an Electronic Gaming Machine (‘EGM’) that had been reported by another patron. The practice of taking credit accumulated by others on EGMs is said to be called “scavenging.” The applicant denied then that he had done so, or at least knowingly done so, and he maintains that position today. [4] An EGM is a computer-like gaming machine which accepts cash or a gaming card which has been referred to in the evidence as a ‘Ticket-In-Ticket-Out’ (‘TiTo’) card, which is a system voucher used to store credits for play on the machines and other kinds of reward or loyalty type points that are not of significance for the purposes of this decision. [5] As a result of a complaint by another customer, and a review of security footage by casino staff, Mr Alkhousi was spoken to and subsequently issued with a 'Notification of Exclusion' (‘Exclusion Direction’) pursuant to section 92 of the Casino Control Act 1982 (Qld) (‘CC Act’). Sections 92(2) and 92(3)(c) of the CC Act allow for a casino operator to exclude a person if they believe on reasonable grounds that the person has engaged in unlawful conduct and, because of the conduct, the person's presence in the casino would not be in the interests of the casino operator or persons in the casino. This case does not call for an analysis of whether the Exclusion Direction was lawfully made under the Act. Rather the issue is whether its issuance and associated conduct was discriminatory. [6] The Exclusion Direction prohibited him from entering or remaining in The Star Gold Coast and Treasury Brisbane casinos, both of which are operated by the First Respondent. That Exclusion Direction remained in force until recently when Treasury Brisbane Casino closed and when a new form of exclusion came into effect across the casinos operated by the first respondent. [7] That Exclusion Direction was issued, the respondents say, because the first respondent (acting through the second respondent, Mr Mitchell) had formed the belief that Mr Alkhousi had knowingly collected credit from an EGM, which he shortly thereafter converted to cash, when that credit that did not belong to him. The respondents say that his conduct was aggravated, in their view, by the fact that, rather than demonstrating contrition for that conduct and repaying the money to the other customer when provided the opportunity to do so, he had attempted to obfuscate his wrongdoing. [8] The relief sought in the complaint was for monetary compensation of $90,000 principally calculated as the measure of what he had spent, or perhaps better put, lost on gambling to attain platinum status at the Casino. [9] In his QHRC application, Mr Alkhousi said he did not 'recognize that [he] had extra cash in [his] wallet" when he was excluded, the significance of which will become apparent, and that his exclusion was 'harsh' for a first-time offence or incident. In his -- 3 of 38 -- 4 statement of contentions dated 18 September 2023, he for the first time made allegations of threatened or actual physical assault against Mr Mitchell. He also sought to expand his claim to focus not only on his exclusion from the Treasury Casino but also on an allegation that he was discriminated against by being 'forced to enter [a] "private jail cell"’ where he was treated badly. He also alleged that his exclusion was the result of an elaborate fabrication by Mr Mitchell. [10] In addition to seeking a remedy of $90,000 for alleged breaches of the Anti- Discrimination Act 1991 (Qld) (‘ADA’), he also appeared to seek a non-monetary remedy under ss 58 and 59 of the Human Rights Act 2019 (Qld) (‘HR Act’). That claim under ss 58 and 59 of the HR Act fails simply because the Respondents are not public entities within the meaning of s 9 of the HR Act and he has not contended otherwise. [11] Then in a statement of evidence dated 12 January 2024, Mr Alkhousi sought to expand the scope of his complaint further by claiming, among other things, that the exclusion was discriminatory because it was issued ‘without obtaining written confirmation for the accusation from the police squad who attended that day’. He alleged that the exclusion damaged his ability to obtain or sustain [a] job’, [12] Lingering around the fringes of this dispute is some desire by the applicant to be reinstated to holding platinum status within those customers permitted to use the respondent’s casinos. This would attract what he sees as certain benefits as a gambler and obviously permitted him to enter those casinos. He freely conceded that he is a gambling addict, and has been for a long period. To achieve platinum status required significant expenditure within the casinos and probably very regular attendance. He suggested that his fellow platinum status holders were also necessarily gambling addicts like him. [13] The original relief that he sought when he made the complaint did not include an order for re-instatement to that status or injunctive relief, requiring him to be reinstated to that status or reversing the decision to exclude him or to have the exclusion from the casinos withdrawn. When these issues emerged during the course of the hearing, I made it clear that no such relief had been sought, and that the factual and legal issues around it were complex and did not arise for the determination on the material before the Tribunal. In fact, he had made an interlocutory application which, had it succeeded would have removed the exclusion. That application was heard and decided by another member, and it was refused, although there appear to be no written reasons for that decision. Conceptually, had it been held that the exclusion was discriminatory, an available remedy would have been to grant some relief of that kind to have the exclusion from the casinos withdrawn. In the end, the applicant did not ask that I make such an order and for the reasons that I deal with elsewhere, no such order to restore him to his former status is appropriate. [14] A further issue that he sought to raise that was not included in the complaint, nor referred to this Tribunal, relates the First Respondent's decision a year after the incident at the casino, on 18 September 2023, to not revoke Mr Alkhousi's exclusion. The context for that decision is explained in Mr Bakon's statement. On 28 August 2023, in the related proceedings QCAT issued directions inviting The Star to reconsider Mr Alkhousi's exclusion. On 18 September 2023, the Exclusion Review Committee (‘ERC’) met to consider Mr Alkhousi's exclusion. The ERC made the -- 4 of 38 -- 5 decision not to revoke Mr Alkhousi's exclusion. That decision had nothing to do with Mr Alkhousi's religion or race. [15] In short, the decision was made by an ERC following a direction in a related proceeding brought by Mr Alkhousi. Rather than continuing with the complaint issue in that proceeding, he discontinued that matter. The circumstances by which that refusal to revoke occurred have not been fully canvassed on the evidence, it concerns different considerations to those raised in the present complaint and it is not a matter before this Tribunal for determination. [16] There was also a suggestion made in final addresses at the hearing that the applicant also sought to complain about a decision in August 2024 to refuse him a licence to enter any of the casinos operated by the respondent. That arose because the casino where his exclusion applied, has since closed in Brisbane and a new casino recently opened elsewhere in the Brisbane CBD. The revocation of license did not have statutory effect but operated at general or common law to refuse him permission to enter the building in which the casino operated. I was told that this had operation throughout the casinos operated by the respondent in Australia. The applicant suggested that this decision was also based on race and religion and that it was some form of victimisation arising out of the fact that he had brought this proceeding. Once again there has been no complaint of victimisation or discrimination relating to this decision, which is barely a month old. Again, the issues around why that decision was made were not canvassed in the evidence and it is not a matter open for determination by me in the present proceeding. [17] At the heart of the issues to be determined was the fundamental question of whether the reason for the exclusion and associated conduct around it on 3 in April 2022 was on the basis of the applicant’s race, which he described as Middle Eastern, and his religion, which was Islam. [18] Sadly, almost all the controversy at the trial and on the evidence adduced was around whether he had in fact, engaged in some stealing or other dishonest conduct whilst using the casino and precisely what the circumstances were in which he found himself unwittingly or otherwise downloading someone else's gaming machine credit onto his own card. The material relied upon [19] Several times during the hearing the applicant urged me to read all his material and consider it. I have done so. I have also considered all of the oral testimony, and the video and audio evidence and the oral submissions. [20] That material, and that also relied upon by the respondents in date order is as follows: (a) Queensland Human Rights Commission complaint 8 May 2022 and referral material (b) Applicant's Statement of Contentions 18 September 2023 (c) Directions (including direction that all parties are granted leave to be legally represented) 15 November 2023 (d) Response to Applicant's Statement of Contentions 29 November 2023 (e) Applicant's Statement of Evidence 12 January 2024 -- 5 of 38 -- 6 (f) Statement of Ky Mitchell 9 February 2024 (g) Statement of Scott Bakon 9 February 2024 (h) Applicant's Reply to Respondents' evidence 19 February 2024 (i) Applicant's further Statement of evidence (following review of CCTV footage) 11 July 2024 (j) Applicant's submissions on interlocutory matter 5 August 2024 (k) Respondent's submissions on interlocutory matter 12 August 2024 (l) Respondent's substantive submissions 15 August 2024 (m) Applicant's statement described as submissions in reply 12 September 2024. The objective evidence of what happened on 3 April 2022 [21] In his statement with QHRC Application, Mr Alkhousi said he was at the casino that day and that he approached two EGMs but did not play the first EGM because it had a 'membership inserted' and that he 'said to [himself] ... someone forgot his card'… So I played the machine next to it ... that has no membership card and was available to be used. [22] He later wrote in his QHRC application: Continue what Happened: I did what everyone and I will do, I got my ticket out of my wallet and I inserted in the machine (M2) when I noticed that the previous number suit my plan in my head, the ticket took few seconds that I noticed (from hearing the noise of the ticket during the proses of insertion that took few seconds and watching the screen timer and staring at the screen and looking at the numbers) I was losing my time to place a bet before next game, next game started and lost my chances to place a bet in right time, I simply did press the collect button and placed the ticket in my wallet or may be my shirt pocket and left walking in a normal way and the area was still empty and no one around. [23] In his February 2024 statement in this Tribunal, he said that: (a) He went to the area with the relevant EGM because he 'used to play [there] seven years before [his] promotion to VIP area'. [N]aturally I might have felt eager to stop for a few seconds and eager to look around and see what changes had been made to the place since I last played there. (b) He approached a set of four EGMs, the first two of which were said to be 'filthy'. (c) He had looked 'right and left in attempt to find any floor staff or cleaner' and then chose a third EGM in that bank of four because of the cleanliness issue. -- 6 of 38 -- 7 (d) Adhering to the casino corona policy at the time that a patron should not play a gaming machine (03) directly next to a machine currently in use (04) by another patron. In his case, a membership card was inserted in the next machine to the left. (e) He had to wait a few seconds for the insertion to be completed in (03) and proceeded to collect his own TiTo ticket and placed it either in the top pocket of his shirt or in his wallet without looking at its value. [24] I pause to mention that this is in some respects different to the account that he gave in his QHRC application where he attributed his decision to collect his own ticket as being because he missed the relevant window to place a bet. [25] Mr Alkhousi went on to explain in his February 2024 statement that what happened next was that As I was disappointed by the dirty place and from not being able to play my favourite game roulette on the EGM, I would think that I decided to play live roulette on a live roulette table game on the same gaming floor. [26] In his 18 September 2023 statement of contentions, Mr Alkhousi for the first time made allegations of threatened or actual physical assault against Mr Mitchell. He also sought to expand his claim to focus not only on his exclusion from the Treasury Casino but on ‘an allegation that he was discriminated against by being 'forced to enter [a] "private jail cell"’ where he was 'treated badly'. [27] In the applicant's statement, described as submissions in reply dated 12 September 2024, which postdates his review of the video and audio evidence, he says: Incident happened on 3-4-22 around 5 pm, I was interrogated around 6 pm, Mr Mitchell made his decision within 30 seconds that I did not have the exact money (see Further SE and video footage) and I was not required to obtain the few dollars (less than $ 15) from ATM machine that was available a few metres away. The patron, more than likely, had left by then and could be contacted by The Star to get her money back the next morning if Mr Mitchell allowed me to get a few dollars from the ATM. Mr Mitchell preferred that I not pay the required money a few minutes later after he found that I was short in cash money (even though there was no evidence presented to me then about the exact money and he wrote about an incorrect amount of money in his IR a few days later) or that I pay money any time until today (I filed at QCAT registry and attached several applications and emails' copies and details about phone calls previously in regards to me being ready to pay the money). Again I repeat 53, D26 and 54 D27, from 54 I highlight his comment. For the purpose of fuelling their hatred of Islam, Mr Mitchell and Mr Bakon made their decision at the expense of the patron who did not have her money back. The respondents hold the details of the patron, but decided to put in balance that the patron could handle the loss of a few dollars for the purpose of applying a damaging exclusion against a VIP member who spent $ 60.000 a year in the past 6 years and who has a clean record with The Star and in Australia for the last 27 years. -- 7 of 38 -- 8 Both Mr Bakon and Mr Mitchell put their hatred of Muslims first before the interest of the patron and before the interest of their employer, The Star. The respondents have been relying heavily on both statements (reasonable grounds and reasonable belief) in every submission the respondents have made in order to cover up discrimination, for example '' ... the Second Respondent, Mr Mitchell) had formed the reasonable belief.." From the Respondents' response to applicant's Statement of Contentions, from 6:"The decision to issue with Mr Alkhousi with the exclusion Direction was based on The Star's reasonable belief that,..." ;From Respondents Response 7: " Legislative context 7. Section 92(2) and 92 (3) (c) of the CCA allow for a casino operator to exclude a person if they believe on reasonable grounds that ..." Reasonable belief does not mean reasonable grounds. Reasonable grounds mean more than one ground. The respondents’ reasonable belief (feeling, or thought) ignored the exclusion policy and guidance that should be considered concrete grounds, principles and directions made by the first respondent (The Star) to deal with the circumstances of such an incident. The respondents brought several false accusations and statements for the purpose of discrimination. I did not know that my own Tito ticket got extra money and even if I knew and according to the respondents’ evidence (video) I did not know and I do not know the owner. Later on when I was approached by Mr. Mitchell, as the video and audio evidence of the respondents confirm, I was calculating my money in an attempt to pay any money Mr. Mitchell (second respondent) had asked me to pay. [28] Now that the audio transcripts and video evidence, as well as electronic records are in evidence and were played during the hearing, and are in evidence, there is a considerable body of objective evidence available to which I can refer, in preference to oral testimony based on witnesses’ recollections of what occurred. Many of the things which the applicant said had happened when he made his complaint and even in later statements and submissions can be seen to be in error when one is able to refer to the objective contemporaneous evidence. [29] The unchallenged evidence about what was a digital record in the system of the financial transactions that relevantly occurred was given by Mr Bakon, who was a credible witness, and whose evidence I accept. There is no evidence to suggest that this record has been tampered with or has been corrupted, notwithstanding assertion to the contrary by the applicant. [30] He has reviewed the casino’s electronic Transaction History and the CCTV footage and they show that at 16:31:48 hours i.e 4:31 pm, a 'System Voucher' (which is a TiTo) was accepted by the EGM which the applicant eventually used, with a credit amount of $101.50. This was inserted by another patron of Treasury Brisbane casino and not by Mr Alkhousi into the machine that the applicant shortly thereafter came to use. [31] The Transaction Report takes snap-shots. In this case, the other patron put a TiTo in the EGM with credits in the amount of $101.50. The 'Credit Amt' column shows how much the patron spent - as an example, at 16:34:55, the amount of "$20" is not a single bet but may have had a series of bets in a short amount of time. The "Debit Amt" -- 8 of 38 -- 9 column shows the win for the plays as per the same timing in the snap-shot (which, at 16:24:55 is wins in the amount of $17.50). [32] He said that between 16:31:38 and 16:37:34 (when the other patron stopped playing), the patron had credit of $101.50, played a total of $29 and won a total of $25.50, reducing the Patron's overall credit to $98 (i.e. a loss of $3.50). The patron then failed to collect those credits in the amount of $98 (by printing another TiTo in that amount) and left the machine. [33] In section 12 of the Applicant's Statement, Mr Alkhousi asserts that this showed that the other patron 'made a mistake and failed to collect the credit'. When using the word 'failed' in this context Mr Bakon meant that the patron did not collect the credit, and was not making a comment about whether this was intentional on the patron's part. Regardless of whether the patron intended to leave the credits behind, the credits were not Mr Alkhousi's to take, he says. [34] The fact that the video evidence shows the female patron did return to the machine a short time after suggests that she did not intend to leave the credits behind or abandon them. [35] Mr Bakon said that at 16:56:23, a 'Cashout Voucher' in the amount of $3.62 was accepted by the EGM. At 16:56:27, a 'Cashout Voucher Request' was received by the EGM in the amount of $101.62. This meant that the relevant patron (which can be seen from the CCTV footage is Mr Alkhousi) pressed the 'collect' button on the EGM. [36] Mr Bakon said that at 15:57:59, a 'Cashout Voucher Acknowledgement' was received, which is that a TiTo in the amount of $101.62 was provided to Mr Alkhousi from the EGM (being the original $3.62 he inserted into the EGM and the $98 in credits from the previous patron). At 16:58:10, the Cashout Voucher (i.e. TiTo) was processed and cash was paid to Mr Alkhousi. [37] Mr Bakon said that the Incident Report stated that Mr Alkhousi collected a TiTo in the amount of $101.50. As identified in above, the correct position is that Mr Alkhousi collected a TiTo in the amount of $101.62. [38] The 2 nd respondent Mr Mitchell gave a detailed statement which he supplemented with oral testimony. I accept his evidence as credible and reliable. He said that on 3 April 2022, he was rostered to work a night shift (7pm to 7am) as the Security Duty Manager for Treasury Brisbane. He did not know the applicant at all. [39] He came to work early on that day to cover for another manager who needed to leave work early to attend to a personal matter. At approximately 5:34pm, he was working in my office when he received a call from Mr Callum Scrogie, the Surveillance Duty Manager, during which Mr Scrogie said that he had confirmed a credit theft from a particular machine EGM 2-59-03 and that a patron informed the Gaming Operations Supervisor that she had briefly left the EGM with $98 in credits and when she returned, the credits were missing. [40] Mr Mitchell said, and I accept, that he then viewed the security footage, and saw a male who he later knew to be Mr Alkhousi, walking near EGM 2-59-03 at approximately 4:55pm. At this stage, he did not know anything about Mr Alkhousi and did not know his name. The audio record shows that the first thing he did was ask the applicant his name. -- 9 of 38 -- 10 [41] The security footage shows that Mr Alkhousi appeared to be walking past a number of machines and looking around. There were machines to his right and to his left as he walked into this area where the incident occurred. He then then stopped and inserted a TiTo voucher into the machine identified as EGM 2-59-03 which was the 2 nd one to his right in a row of 4 from the directed that he entered the row of machines from the left side. There were then 2 vacant machines to the right of the one he was using. [42] Mr Mitchell said, and I accept, that he concluded that he had observed Mr Alkhousi collect the credits on EGM 2-59-03 straight away without attempting to play. In his experience, when a person collects credits on a machine without making any attempt to play, it is an indicator that they may have collected credits that do not belong to them. This, coupled with the fact that Mr Alkhousi had been walking around the area and looking at the screens of various machines, indicated to him, that he may have been looking for credits on unattended machines. In the casino industry, this is referred to as 'scavenging'. [43] Mr Mitchell said, and I accept, that he concluded that he had observed that after Mr Alkhousi collected the credits on EGM 2-59-03, the CCTV footage showed him leaving the area and walking to the other side of the casino on the main gaming floor. He then saw him cash a TiTo at a Cash Redemption Terminal (‘CRT’) (an ATM-style kiosk that provides patrons with cash for their TiTo credits). [44] Mr Mitchell said, and I accept that he concluded that the CCTV footage showed that Mr Alkhousi also used the CRT to break up the notes he had obtained and then left the area. Although there was a CRT located approximately 15 metres from EGM 2- 59-03, the CCTV footage showed that Mr Alkhousi walked past this CRT and instead used one on the main gaming floor of the casino). This, he said, combined with Mr Alkhousi's other behaviour made him think that it was likely that he wanted to leave the area where EGM 2-59-03 was located as soon as possible. [45] He said, and I accept that after reviewing the CCTV footage, he was concerned that Mr Alkhousi had taken credits from EGM 2-59-03 that did not belong to him. A member of the gaming operations team reviewed gaming records for EGM 2-59-03. Mr Scrogie then informed him that Mr Alkhousi had inserted a TiTo valued at $3.62 and then collected $101.62 in credits, $98 of which belonged to another patron. [46] As a member of the security team, Mr Mitchell did not have access to gaming records to view these amounts for himself and so this information was collected by the surveillance team from the gaming operations team as part of the investigation. Given the matters referred to in paragraphs [8] to [13] above, Mr Mitchell decided that he should go and speak with Mr Alkhousi. At this stage, he says. and I accept, that he had already formed a view that it was likely that he would issue Mr Alkhousi with an exclusion order. This is because: the gaming records and CCTV footage had indicated that he had collected credits that did not belong to him; and based on his review of the CCTV footage, he considered that it was likely that Mr Alkhousi had done so deliberately. [47] He said, and I accept, that he wanted to speak with Mr Alkhousi to see whether he could offer an explanation for what had occurred, whether to see he would show genuine remorse and whether he would agree to repay the value of the credits. If this had occurred, he said, then it was likely that he would have issued Mr Alkhousi with a warning, rather than an exclusion order. In his role, he was often required to have -- 10 of 38 -- 11 conversations with patrons regarding behaviour such as theft. It was his usual practice not to tell the person that if they repay the money and accept responsibility for their actions, then they may be able to return to the casino. He usually does not do this because it may undermine the genuine nature of the person's response. But on this occasion, he did in fact offer that outcome, as I shall mention shortly. [48] When he approached Mr Alkhousi presented him with his Star Club membership card. That indicated to him that that Mr Alkhousi was a Platinum member which was a membership level based on factors including a person's spending at the casino. [49] They then had a conversation to the following effect, transcribed from the audio record, as set out in Mr Mitchell’s statement: Me: Mohamed, I need to talk to you about an incident that occurred earlier. Do you remember earlier today, you may have collected something from one of the machines upstairs? Mr Alkhousi: I can't remember. Me: You can't remember? Mr Alkhousi: What happened is, I play the tickets and I get dizzy, and then I walk. around. I can't remember what I did. Me: Can I just ask, if you get dizzy, how does walking around help? Mr Alkhousi: Huh? Me: How does walking around help you if you are getting dizzy, doesn't that make it worse? Mr Alkhousi: I have dizziness and high blood pressure. I walked around, I see the colours… Me: Do you remember finding approximately $100 on a machine? Mr Alkhousi: No. Me: Ok, well. Michael mate, I'm going to ask you to come downstairs and have a chat with us because what's happened here is earlier today at 16:53hrs or 4:53, you've gone upstairs to a machine in the Sovereign Room, machine 25903. Mr Alkhousi: Upstairs? Ms Madden: Actually, level 1 near the top of the escalators. Me: You've gone up to the machine and you walk past the machine and you appear to notice something on the machine. Then you go and put your TiTo ticket to the machine and without playing you immediately collect. Now, the ticket you put in was valued at $3.62 and you withdrew $101.62. There was $98 on that machine that belonged to somebody else. Mr Alkhousi: No idea. Me: No idea? Alright, well I'll get you to come downstairs with us and we'll have a discussion about this one. Mr Alkhousi: Yep. [50] I note that Mr Mitchell did refer to Mr Alkhousi as 'Mohamed' once and later as 'Michael,’ but accept that this was a genuine error and that he misheard Mr Alkhousi's -- 11 of 38 -- 12 first name when he gave it to him. I accept his evidence that he did not think about his name or realise that his name indicated that he was of any particular religious faith. [51] Mr Mitchell then decided that it would be more appropriate to move the discussion to a private place. He made this decision because he believed that it would be respectful of Mr Alkhousi and protect his privacy if the conversation continued out of the view of other guests and he took him through the corridors of the casino to a private room. [52] While walking with Mr Alkhousi to the Guest Support Room, they had a conversation in which he tells the applicant he is under investigation and has his image captured on a security camera for the purposes of that investigation. At one point as they went there, they had the following conversation transcribed from the audio record, as set out in Mr Mitchell’s statement: Mr Alkhousi: I Just cash in, cash out all the time so I don't really recognise what you're talking about. Me: Well, see at the moment, we're certain that you've taken $98 that belongs to somebody else. Do you have the ability to repay that money? Mr Alkhousi: Why I pay money; I cash in and cash out all the time. I'm Just about to go home. I felt a bit dizzy, so I walked around. That's it. [53] Mr Mitchell then made a radio call to the Security control room and requested that they call Qld Police's Casino Crime Unit. He was informed by a security team member from the control room that the Police were unable to attend, as they had recently left the premises. That team member told him that the Police would request that another officer attend. [54] They then had a conversation to the following effect, transcribed from the audio record, as set out in Mr Mitchell’s statement: Mr Alkhousi: I think you are making a mistake. Me: I went and looked at the footage just then, sir. I'm sure it's you. Mr Alkhousi: I walk around all the time. I put money in, I get money out. [55] They then got to the Guest Support Room, and they then had a conversation to the following effect, transcribed from the audio record, as set out in Mr Mitchell’s statement: Me: Do you have a driver’s licence? Or only a membership card? Mr Alkhousi: I've already given you my membership card. I've done nothing wrong, so I can't really go through the process of trying to give you any trouble. I'm a Platinum member, I don't want to risk my Platinum membership. And you're talking about a small amount of money, I have nothing to do with this small amount of money. Maybe you respect that I spend every day, every week here. Maybe it says here that I spend more than $50,000. I've done nothing, I've been here since six o'clock, you can check. I feel dizzy, I walk around a little bit, just to walk a little bit. I get from the alcoholic beverage. Before I go to drive, I walk around and I don't remember anything. I had a bloody Mary and a Corona before. I had a few drinks, I was drunk. Me: You don't appear drunk to me, sir. -- 12 of 38 -- 13 Mr Alkhousi: I am now just about to go home because last time I didn't drink when I wanted to go. I'm just about to head to my car because I know I am not allowed to stay here for more than 12 hours. At some stage I was drunk, before one hour ago. You can check with the girl upstairs; she gave me a Bloody Mary and I got a corona earlier ... Me: My point is sir; I'm not saying that's a justification ... Mr Alkhousi: I've done nothing wrong, so you cannot throw away my card. Tell me how you spent every $50,000 this year, you spent $500 last week, you spent $500 the week before. And now you are telling me that I took, I don't know how much, a few dollars. Me: Alright. You're telling me that you can't remember. What I'm telling you is, approximately an hour ago, you walked up to a machine. You stopped and looked at the machine and it appears that you have noticed that there was $98 in credits on the machine. You've then ... Mr Alkhousi: I found myself running out of time to play what I wanted to play. So, what happened is, I looked at the machine and when I looked at the machine, I just looked at what are numbers and what is my plan in my head. I did put money, like I usually put 1 here or 2.50, that's what I tend to do. Me: What you've done, you've inserted $3.62 into the machine ... Mr Alkhousi: Exactly. Me: Then immediately withdrawn $101.62, then you've gone to the Main Gaming Floor and 4 minutes later cashed out that money. Mr Alkhousi: Not necessarily that money. I have dockets in my pockets. Me: Do you have dockets on you now? Mr Alkhousi: Yep. (and he then showed his ticket) Me: That one's $5.98 sir. The one you cashed in was for $101.62. End of the day, we are trying to determine whether it's a mistake or intentional. Mr Alkhousi: I don't have money. I don't have anything else, only things that have nothing to do with this. I said to you one hour ago and before, I was drunk and I didn't take anything strong. I was here from 6 o'clock, from 6 until 6. I need to go home, I walked around to prepare myself to go home. I walked around, I met my friend upstairs. He asked me what's going on and I said I'm walking around until I wake up. You can ask him. Me: Ok, let me explain what's going to happen. I'm going to ask, do you have the means to repay the $98? Are you able to give me $98 so we can return it to the owner? Mr Alkhousi: I don't know. Are you sure it's me? Me: 100% sure, sir. Mr Alkhousi: I'm in shock, I don't know what to tell you. Me: Well, what we're going to do sir, is this is going to escalate to a Police matter and the Police will interview her over this. Mr Alkhousi: Why are you doing this? -- 13 of 38 -- 14 Me: Because sir, you've taken $98 that belongs to somebody else. We're trying to give you the opportunity to repay the money and keep the Police out of it. Mr Alkhousi: Let me see how much money I have ... $83. Me: The total is $98 sir, we can't take a partial payment. Mr Alkhousi: So what can you do? Me: So what I'm going to do is I'm going to ask you to leave for now.' Me: What's going to be happening sir, is we'll be issuing you with what's called an exclusion from the casino for theft, which means that you are no longer a member ... Mr Alkhousi: You cannot do this to me. Me: We can and we are sir. Because, at the end of the day, we tried to give you an opportunity to be honest and repay the money. Mr Alkhousi: I am honest with you. I explained to you my circumstances and I did not take any money. Me: What I'm saying is, what you are telling me doesn't align with what we've seen on the footage. It's now a Police matter and the Police will be in contact with you in the next couple of days. What I'll do is I'll take you up and walk you out. Mr Alkhousi: If I did put money in the machine, I was drunk. Me: Well sir, I'm not seeing any signs of intoxication and even if you had been intoxicated, it's not an excuse for committing a crime. Sir, the exit is up this way. Mr Alkhousi: I need to go to the car. Me: But you're claiming you're intoxicated, so we can't let you drive. Mr Alkhousi: One hour ago, I was drunk. e Me: Well, are you intoxicated or are you not? Mr Alkhousi: I had my last drink around one hour or one hour and a half ago. Me: Ok, well you can go to the car park. Mr Alkhousi: I was waiting around, walking around the casino. I was waiting around until I wake up. Me: Ok, well you're welcome to leave via the carpark, sir. Hit the buzzer and let them know that I've taken your card and they'll let you out. Mr Alkhousi: Can I appeal this decision? You've made a decision verbally and I think it's wrong. I've done nothing wrong. I was drunk. Me: We've given you an opportunity to be honest with us and you haven't been. We've given you an opportunity to try and repay the money and you're not taking that. Mr Alkhousi: I swear, I told you. Do you want me to explain to you again? Me: No sir, because your story doesn't make sense to me. It's a Police matter now. Don't come back to the casino until the Police have interviewed you. -- 14 of 38 -- 15 Mr Alkhousi: Ok then. [56] Before the applicant got into the lift, they had another conversation to the following effect, as transcribed from the audio record, as set out in Mr Mitchell’s statement: Mr Alkhousi: Somebody looking at the monitor saw the numbers. I just took my ticket, I came to play. Then, I found myself running over time. Me: Ok, again, I'll explain it to you. The footage clearly shows the person leaves their machine with credits on the machine, you approach the machine, you notice something on the machine, you turn around, you put your ticket in and you immediately collect it. Then, you immediately leave that area, you walk past several machines where you could cash out to go to the other side of the building and you cash the ticket out. Now you're telling me that you were in a hurry but an hour later, you're still here walking around the machines. Mr Alkhousi: I never said I was in a hurry. One hour ago, I had my last drink. Me: Sir, the lift's here. Go home. [57] He then left and Mr Mitchell went back to his office to complete an incident report and did so because the incident with Mr Alkhousi involved what he said, and I accept he believed, was a theft and because he had made the decision to issue an exclusion order and then did so in written form called a Notification of Exclusion. [58] An officer from Qld Police attended shortly after Mr Alkhousi got into the lift for his car. Mr Mitchell then had a conversation with the officer to the following effect: Me: He's denying everything. But he's done it, I've seen the CCTV footage myself. We were just going to refer it through to the CCU guys when they're in next. Police Officer: Righto. Me: It's a straightforward one. Guest leaves $98 in a machine while she goes off to get a drink. He comes past. He stops, he notices something on the machine. Police Officer: Whereabouts is he now? [59] He then called the surveillance control room over the radio and asked them to confirm Mr Alkhousi's whereabouts. While he was waiting for confirmation on Mr Alkhousi's whereabouts, he said to the Police Officer words to the following effect: Something about the machine catches his eye. Can't say exactly that he's noticed the $98 on it, but he's put a ticket worth $3.80 in, then immediately withdrew the money. Then he's walked to the other side of the building and cashed it out 4 minutes later, and then he's back walking around the building. Claims he gets dizzy because of blood pressure so he has to walk but ... [60] It may be noted that nowhere in the course of that encounter did the applicant ask to go to an ATM or find any other ways of getting access to the $15 he was short to be able to repay the amount of the other patron’s credit. In Mr Alkhousi's statement he said that Mr Mitchell accompanied me to the elevator and we passed {an] ATM and I tried to negotiate payment with him and possible money withdrawal, he kept silent and seemed happy as he already got audio recording that he could cut and -- 15 of 38 -- 16 paste and form the accusation that served his discrimination action against Muslim person. [61] I find that no such conversation occurred. I accept Mr Mitchell’s evidence that they did not walk past an ATM between leaving the Guest Support Room and Mr Alkhousi exiting the building to the carpark, although they had passed one on the way to the Guest Support Room, and that no such conversation occurred. Relevant legal principles [62] The ADA prohibits discrimination on the basis of, among other attributes, race and religious belief or activity. [63] Section 46 of the ADA provides that: (l) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person- (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services. [64] Conceptually, Mr Alkhousi's case falls within the scope of ss 46(1)(a) and (d). [65] Section 8 of the ADA extends the term 'discrimination on the basis of an attribute' to, inter alia, direct discrimination on the basis of 'an attribute that a person is presumed to have, or to have had at any time, by the person discriminating'. [66] Section 10(1) of the ADA provides that direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Section 10(2) provides that it is not necessary that the person who discriminates considers the treatment is less favourable. Section 10(3) provides that the person's motive for discriminating is irrelevant. Section 10(4) provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. [67] The current test in section 11 of the ADA involves determining the appropriate comparator group for proportional comparison. This has been shown to be problematic. Under the wording of section 10, the comparator is a person in the same or not materially different circumstances, but without the attribute. The ADA does not itself use the word comparator. [68] The comparator is the predominant means of determining causation in Australian discrimination law. The comparator is an actual or hypothetical person who does not have a particular protected attribute (sex, race, disability etc). Courts construct the comparator and are required to place them in similar factual circumstances to the complainant. Then, it is necessary to ask whether the complainant was treated less favourably than the comparator in those circumstances. If the answer is yes, that -- 16 of 38 -- 17 generally establishes the relevant discrimination (subject to defences). The comparative formula is found in the formulation of ‘less favourably’ tests in the Sex Discrimination Act 1984 (Cth) (s 5A), the Disability Discrimination Act 1992 (Cth) (s 5) and the Age Discrimination Act 2004 (Cth) (s 14). [69] The use of comparators has attracted stinging criticism. It was described as akin to conceptual ‘shackles’ in the joint dissent of Kirby and McHugh JJ in Purvis v New South Wales (2003) 217 CLR 92 (‘Purvis’). Indeed, dicta from the House of Lords1 has suggested that comparators should be relegated to the status of analytical tools for reaching a conclusion of discrimination rather than necessary preconditions. Numerous bodies have suggested that the comparator test should be simplified at the federal and state levels. The NSW Law Reform Commission in its 1999 review of the Anti-Discrimination Act 1977 (NSW) identified ‘widespread dissatisfaction … conceptual difficulties … artificiality and resulting complexity’. More recently, the Australian Human Rights Commission noted, ‘the application of the comparator test … has presented significant difficulties, including complexity in interpretation and uncertainty of outcome’ (p 279). [70] As I have identified above, ADA s 10(4) provides that if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The focus here is on reasons for conduct, not motive or intent.2 [71] In a case not altogether dissimilar to that here in some respects because it involved a person in a position of legal authority reaching a legal conclusion about another person’s entitlements, Lyons v State of Queensland,3 it was made clear by the Court of Appeal that in framing the circumstances of a relevant comparator by reference to ‘all of the objective features which surround the actual or intended treatment’. [72] There the facts were that a Court Deputy Registrar's decision to exclude the appellant's name from the jury panel was held not to have been made on the basis of the appellant's hearing impairment. The Tribunal found that the decision was made because the Deputy Registrar considered that under s 4(3)(l) of the Jury Act 1995 (Qld), the appellant was not eligible for jury service. [73] In the Appeal Tribunal,4 the applicant appealed against what she contended was the Tribunal Member’s failure to conclude that her impairment was a “substantial reason” for the Deputy Registrar’s conduct. That ground, which on its face involved purely a question of fact, was dealt with fairly briefly by the Appeal Tribunal: Not determining that the appellant’s impairment was a substantial reason for the impugned conduct… 1 Lord Scott and Lord Nicholls’ speeches in Shamoon v Chief Constable [2003] UKHL 11. 2 See Purvis, [155]-[163]; Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350, [94] (Basten JA); Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, [23] (Kiefel J). 3 [2016] 2 Qd R 41 at [37]-[39]. See also Dovedeen Pty Ltd & Anor v GK [2013] QCA 116 at [27], [30], [31]. 4 See Lyons v State of Queensland (No 2) [2013] QCAT 731; Lyons v State of Queensland [2014] QCATA 302. -- 17 of 38 -- 18 It was a consideration of all of the circumstances and the effect of the interpretation of the Jury Act with respect to the impermissibility of an additional person in the jury room [which] was the reason for the applicant being excused. That conclusion was open to the learned Member, and it is not correct to say, when considering an appropriate comparator, that the sole reason for her exclusion was her hearing impairment… [74] The Court of Appeal considered the arguments concerning the choice of comparator and held at [35]-[39]: [35] Here, the applicant argued that the Tribunal Member (and presumably also the Appeal Tribunal) erred in formulating the characteristics of the “comparator” for the purpose of s 10(1) by failing to exclude from consideration the need for an interpreter. That amounted to taking into account, contrary to s 10(5), the fact that the applicant would require special services. Consequently, in determining whether direct discrimination had occurred, it was not permissible to take into account the fact that the Deputy Registrar’s conduct might have been caused by the requirement that a non- juror not be present in the jury room. The appropriate comparator was a person without the applicant’s disability who wished to perform jury service. The applicant sought to distinguish the decision of the High Court in Purvis v New South Wales. [36] In Purvis, the High Court was considering s 5 of the Disability Discrimination Act 1992 (Cth) in connection with a complaint by the father of an intellectually disabled boy excluded from school for violent behaviour. Section 5(1) of the Disability Discrimination Act, like s 10(1), provided that discrimination occurred where the discriminator treated or proposed to treat the complainant less favourably than he or she would a person without the disability “in circumstances that are the same or are not materially different”. Section 5(2) provided that circumstances were: “not materially different because of the fact that different accommodation or services may be required by the person with the disability”. [37] The appellant in Purvis argued that the appropriate comparator was a pupil without the disability of his disturbed behaviour. That was because disability was defined as requiring reference both to the disorder and the resulting behaviour, and because it was necessary to exclude from the circumstances which were the same, or not materially different, all the circumstances constituting the disability. Gummow, Hayne and Heydon JJ, who were part of the majority, made these observations: “It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires. -- 18 of 38 -- 19 … The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability.”[16] The question, the majority held, was whether in the same circumstances – including the violent behaviour – a pupil without the boy’s disability would have been treated in the same way. [38] The applicant argued that Purvis could be distinguished on the basis that s 10(5) referred to the fact that special services might be required as “irrelevant” in determining whether the circumstances were “materially different”, whereas in Purvis, s 5(2) of the Disability Discrimination Act merely provided that the need for services did not render the circumstances “materially different”. That does not seem to me a compelling basis for distinguishing Purvis; I would read s 5(2) as having precisely the same effect as s 10(5), of rendering the requirement for services irrelevant. [39] There can be no doubt that the appropriate comparator is a person without the applicant’s attribute of deafness or need to communicate through Auslan. But to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred. Here the circumstances in which the Deputy Registrar made her decision were that she was required to apply a law which, at least in her view, precluded the presence of an outsider in the jury room. That was not a question of the applicant’s needing a special service: the Registrar did not exclude her because of her need for the assistance of an interpreter but because of the perceived impossibility of an interpreter, as a person extraneous to the jury, being present in the jury room. The Tribunal Member appropriately had regard to that consideration as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing seeking the assistance of another in the jury room. [75] That decision was one in which the High Court found on a narrow basis that the conduct in question was not discriminatory:5 [19] The Tribunal found… that the Deputy Registrar's decision to exclude the appellant's name from the jury panel was not made on the basis of the appellant's impairment. The Tribunal found that the decision was made because the Deputy Registrar considered that under s 4(3)(l) of the Jury Act, the appellant was not eligible for jury service: she did not have the capacity to effectively perform the functions of a juror in circumstances in which there is no provision to administer an oath (or affirmation) to a person interpreting for a juror and the Jury Act does not permit a 13th person to be kept together with the jury. The Tribunal found that the Deputy Registrar's understanding of the scope of s 4(3)(l) was incorrect 5 Lyons v State of Queensland [2016] HCA 38; 259 CLR 518 at [19], [25] and [38] per French CJ, Bell, Keane and Nettle JJ. -- 19 of 38 -- 20 but that this did not affect the Tribunal's conclusion that the appellant had not been subject to less favourable treatment on the basis of her impairment. The Tribunal said that the appropriate comparator was a prospective juror who requested the assistance of another person in the jury room in case the prospective juror did not understand all that was said there. … [25] The appellant submits that it is ineluctable that her deafness was the "true basis" or "real reason" for the Deputy Registrar's decision to exclude her from the jury panel. The Tribunal's error, in her submission, was to fail to give effect to s 10(5) of the ADA. The Tribunal was required to treat the appellant's need for Auslan interpretation as irrelevant to the determination of whether she was subjected to less favourable treatment. Given that Auslan interpretation cannot be separated from the person who provides it, the Tribunal erred in selecting as a comparator a hearing person who asked to have another person present to assist him or her during the jury's deliberations. … [38] The Deputy Registrar rightly concluded that Queensland law did not permit an Auslan interpreter to assist the appellant while the jury was kept together. It followed that the appellant was incapable of effectively performing the functions of a juror[55]. This conclusion made the appellant ineligible for jury service[56]. A person who is not eligible for jury service is not qualified to serve as a juror[57]. The Deputy Registrar was required to exclude from the jury panel a person not qualified for jury service[58]. The Deputy Registrar was required under Queensland law to exclude the appellant from the jury panel. The exercise of the Deputy Registrar's powers in conformity with the command of the Jury Act did not infringe the ADA's prohibition on unlawful discrimination in the performance of a function or exercise of a power under Queensland law. [76] In my view an appropriate comparator is another person who was not a Muslim and not a person of Middle Eastern race who was under investigation at the casino for stealing or appropriating credit of less than $200 from another patron, in the same or not materially different circumstances in which he otherwise found himself while under that investigation. That is, a person in the same or not materially different circumstances, but without the attribute. It need not, as the Respondent submits, be so narrow as to be a person who did not repay the money when asked, and who did not take accountability for their actions or provide any assurance that they would not act in the same way in the future, because requiring the person to do those things might be in themselves less favourable treatment which occurred on the basis of that persons’ race or religion. Also, those features were not what Mr Mitchell said were the considerations he was applying. Moreover, I do not need to find that the circumstances were that he was a person who did not repay the money when asked, and who did not take accountability for his actions or provide any assurance that he would not act in the same way in the future. It is enough that the decision maker had the understanding or interpretation of the subject events had the features that Mr Mitchell said they had for him. [77] Mr Mitchell said: -- 20 of 38 -- 21 I made the decision to exclude Mr Alkhousi from the casino because: a. I formed the view that he had engaged in unlawful conduct (namely, the theft of another patron's credits) and, as such, his presence in the casino would not be in the interests of The Star or other persons in the casino; and b. of his response to being confronted in relation to the theft, including that he did not repay the amount owing and he did not take any accountability for his actions. [78] The High Court in Australian Iron and Steel Pty Ltd v Banovic6 (‘Australian Iron and Steel’) was concerned with allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cutoff date. In the joint judgment of Justices Deane and Gaudron it was held that: ... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected”. “Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... There is no finding to that effect by the Tribunal. [79] Hence the court in Australian Iron and Steel concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. [80] The High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49 (‘Waters’). [81] The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes. [82] In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the court differed. 6 (1989-1990) 168 CLR 165, at 176-7. -- 21 of 38 -- 22 Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate?” at pages 520-521 as follows: There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation, the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”. [83] A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to section 1(1)(a) of the Sex Discrimination Act 1975 (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability”. [84] His Lordship noted (at 1194) that, if intention or motive were relevant: [I]t would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys. (emphasis added) (See also the discussion by Deane and Gaudron JJ in Australian Iron and Steel, at CLR 176–7). [85] McHugh J differed from this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said in Waters at 400-402: The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] -- 22 of 38 -- 23 AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176- 7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1). With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent. The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another. How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) -- 23 of 38 -- 24 “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life. [86] In Purvis the High Court considered these authorities in the context of a claim of disability discrimination. In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student "on the ground of" the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, "because of" the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. [87] Chief Justice Gleeson said that In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex. [88] After referring to the judgements referred to above from Waters, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said at [159]-[160]: “…However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ. [160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind. [89] After referring to later authority he 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. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. [90] The leading judgment in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration here as the “second issue” in the appeal, identified as being whether the Commissioner’s -- 24 of 38 -- 25 conclusion that the student’s behaviour occurred as a result of his disability and that "in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability". They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the "true basis" for the act or decision. [91] The question was posed in these terms by reference to what was required to show direct discrimination: [224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. [225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability? Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment. [92] Hence those judges held that the 'circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator. [93] The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator and as to the causation issue are informative. As to the former they said: -- 25 of 38 -- 26 [130] Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti- discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment. [94] In relation to the causation question McHugh and Kirby JJ said; [148] The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention. [149] A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said: There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy. [150] By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing. [151] In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said: [O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?' -- 26 of 38 -- 27 [152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving." [153] But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said: It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex. (original emphasis) [154] Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said: [I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator … The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. [155] In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said: For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal -- 27 of 38 -- 28 conclusion. The reason why a person acted as he did is a question of fact. [156] The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator. [157] These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex. [158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention. [159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said: The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ. [160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind. [161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said: -- 28 of 38 -- 29 The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably. [162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex. [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. [164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination. [165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes. [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. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan. [167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said: [T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder. -- 29 of 38 -- 30 [168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia. [169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour. [170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan. [95] As Justice McHugh said in Waters “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of “the victim”. [96] The protected attribute, to use the language of the Queensland Act, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently “on the ground of” that matter this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim. Factual findings relevant to discrimination in the goods and services area on the basis of religion and race [97] The critical factual issue is whether Mr Mitchell should be believed in relation to first his state of mind as to the reason why he dealt with the applicant in the way that he did, and ultimately imposed an exclusion. That is, whether the state of mind that he said he had, he in fact had. Secondly, whether he did, in fact, act on that basis in the way he treated the applicant. Thirdly, whether, if the way he treated the applicant was in fact on that basis, that treatment was based on either of the protected attributes of race and religion. [98] Critically, Mr Mitchell swore both in his statement and also in his oral testimony that that is precisely what he did and that his conduct was in no way motivated by, or done on the basis of the applicant’s so-called race or religion. -- 30 of 38 -- 31 [99] Mr Mitchell swore both in his statement and also in his oral testimony and I accept that he made the decision to exclude Mr Alkhousi from the casino because of two things. First, he formed the view that he had engaged in unlawful conduct (namely, the theft of another patron's credits) and, as such, his presence in the casino would not be in the interests of The Star or other persons in the casino. Secondly because of his response to being confronted in relation to the theft, including that he did not repay the amount owing and he did not take any accountability for his actions. [100] Mr Mitchell swore both in his statement and also in his oral testimony, and I accept, that in deciding to exclude Mr Alkhousi from the casino, he did not take into account his membership level or records and that as a security officer, he did not have access to the membership records of Star Club members. If CCTV footage and records confirmed that a person has engaged in a theft, he did not believe that it would be appropriate for him to make a decision about exclusion based on their membership level or record. [101] Mr Mitchell swore both in his statement and also in his oral testimony and I accept that in making a decision to exclude Mr Alkhousi from the casino, the monetary value of the amount of credits taken was not a determinative factor. In this respect, he has excluded multiple patrons for amounts of less than $200. It is not uncommon for individuals to come to the casino and take small amounts of money that may be left unattended at gaming machines. [102] Mr Mitchell swore both in his statement and also in his oral testimony and I accept that if Mr Alkhousi had agreed to repay the money, he would have checked The Star's security records to see whether he had engaged in similar types of behaviour prior to making a final decision. However, as he did not agree to repay the money, he did not consider it necessary to review his security records. [103] The Star had an Exclusions Policy and a Guidance in relation to the Exclusion Policy. In the Guidance, a factor relevant to whether an exclusion order is made is whether 'all or a substantial portion' of the amount owing is repaid. Mr Mitchell swore both in his statement and also in his oral testimony and I accept that, in the past, patrons were permitted to make partial payments of amounts they had taken; however, this was not the then current practice because it was too difficult to administer. [104] Mr Mitchell swore both in his statement and also in his oral testimony and I accept that in making the decision to issue Mr Alkhousi with an Exclusion Direction, or in any of the other ways he dealt with him, then or after, he did not take into account Mr Alkhousi's religion or race and that, prior to being made aware of Mr Alkhousi having made a discrimination complaint, he was not aware that he was a Muslim. [105] One completely unsatisfactory aspect of the case was that the applicant did not adduce any evidence in his own case or in cross-examination of the respondents’ witnesses to suggest that in any of them had any cognisance of his race or that he was of some particular race or had some particular religious beliefs. [106] He certainly is heavily accented, although I would not describe it as an obviously Middle-Eastern accent. In other words, that a person would hear him speak might indicate that he was from a non-English-speaking background, but it would not necessarily tell him anything about his racial background or ethnic origins. Mr Mitchell was not cross-examined with a view to establishing that he had any perception that the applicant was of any of any particular race or was of a different -- 31 of 38 -- 32 race or that race was a factor in his thinking, although the applicant continually asserted that must be the reason why he was treated as he was. The origin of this assumption as to the basis for the way he was treated can also be seen from his 19 April 2022 letter to the respondent, which was part of the complaint material that was sent to the QHRC, in which he says that in the absence of any other explanation or reason for what he says was a harsh decision to expel him, it “can only be based on discrimination”. One cannot draw such an inference, because there are many other possible reasons for why he was penalised in the way that he was, that are entirely inconsistent with that proposition, including the seriousness of the conduct, that it involved dishonesty, that there were seen to be false denials about it, his failure to make reparation to the other customer. [107] One of the reasons that the applicant sought to have it inferred that was the basis for Mr Mitchell’s conduct was that he had intentionally mispronounced or misused his first name after seeing his identification card for the casino and instead of calling him by his name Mohanad called him Mohamed. I have dealt with this earlier in these reasons and find that it was a mistake he made just once at the start of their discussions that day. That, in and of itself, is not indicative of racial or religious discrimination, or even consciousness of the existence of racial or religious difference or diversity. The applicant himself concedes in his 19 April 2022 letter to the respondent, which was part of the complaint material that was sent to the QHRC that “many people mistakenly call him “Mohamad”. [108] It was suggested that this name had been used numerous times in a condescending way and that this was indicative of religious discriminatory conduct. The fact is, though, the that that name was only used once in the very first sentence used by Mr. Mitchell after he saw the applicant’s members card with his name on it and did not use the expression again. It would be a mistake that would be easily made if you were not familiar with the applicant’s first name. The objective fact is that the name was not used numerous times in a condescending way by Mr Mitchell. [109] There was much to-ing and fro-ing in the evidence and also in the examination and cross-examination of witnesses about whether either the applicant or Mr Mitchell had been aggressive in some or other of their dealings with each other, whether it was appropriate for him to be taken to a so-called guest room to be confronted with the accusation that he had engaged in some misconduct or whether the Guest Support Room to which he was taken was some kind of prison-like place where he was mistreated, or held against his will. Some of these issues might have been relevant to the question of how he was treated generally and as to whether he was generally treated in an antagonistic way by Mr Mitchell, as well as what compensation he might receive had it been held that the basis for it was his race or religion or race. However, little of the evidence went to the question of whether that was in fact, the basis of his treatment. I reject these contentions by the applicant, which find no objective support in the video or audio record. Nor is the Guest Support Room a prison-like place. [110] Mr Mitchell accepts that he did become firmer with him as their conversation continued due to the fact that Mr Alkhousi was not accepting responsibility and did not agree to repay the amount taken. [111] I accept the evidence of Mr Mitchell that the Guest Support Room is a room that is located outside of the casino licence boundary. The primary purpose of the room is to enable Treasury Brisbane employees to have conversations with patrons about -- 32 of 38 -- 33 security or safer gambling issues. For example, if a person wishes to voluntarily exclude themselves from the casino due to problem gambling concerns, a staff member could take them to the Guest Support Room to speak to them in private. The fact that the room is outside of the casino licence boundary means that the staff member could process the voluntary exclusion order while the person is in the room with them, without the person putting themselves in breach of the order. [112] I accept the evidence of Mr Mitchell that the Guest Support Room is not a secret room. It is located on the basement carpark level and immediately next door to the room occupied by the casino regulator, the Office of Liquor and Gaming Regulation As it is primarily used by members of the security and safer gambling teams, it is common for staff members who work in other parts of the business to not be aware of its existence. The Guest Support Room is a simple office containing a workstation with a computer and landline phone, a separate table and chairs, and a small kitchenette. There is a CCTV camera in the room. It has no prison-like characteristics. [113] A considerable body of evidence was directed to the question of whether the gaming machine on which the credit was downloaded was in a dirty state or whether the previous user of it, whose credit had been taken off the machine onto the applicant’s card heads, had spilled alcohol on it in some way or another. That formed part of the applicant’s explanation for why he left the machine as quickly as he did. [114] The potential relevance of that was that it might have corroborated the applicant’s story that the reason he immediately moved away from that machine and did not use it but downloaded the credit on it onto his card was because it was in that condition. [115] Mr Mitchell swore, and I accept, that when completing the Incident Report, he did not record any details about whether any of the gaming machines in the area had been cleaned. He did not consider that this was relevant and Mr Alkhousi had not raised any concerns with him about the cleanliness of the area during their discussions that day. [116] I cannot resolve the evidence on this. However, there is nothing in the video evidence to suggest the other patron had spilt anything on or near the machine. There were other adjacent machines, but the applicant did not move to any of them. [117] In the end, it was ultimately unnecessary to decide these and many other peripheral issues that arose on the evidence because the issues to be determined had less to do with the applicant's credit and most to do with whether Mr Mitchell should be believed in relation to first his state of mind as to the reason why he dealt with the applicant in the way that he did, and ultimately imposing an exclusion, that is, whether the state of mind that he said he had, he in fact had. Secondly whether he did, in fact, act on that basis in the way he treated the applicant. [118] The evidence is clear that the decision to exclude Mr Alkhousi from the casino was made because Mr. Mitchell (a) formed the view that he had engaged in unlawful conduct (namely, the theft of another patron's credits) and, as such, his presence in the casino would not be in the interests of The Star or other persons in the casino; and (b) took account of his response to being confronted in relation to the theft, including that he did not repay the amount owing and he did not take any accountability for his actions. -- 33 of 38 -- 34 [119] To the extent that his other conduct that day (i.e other than the exclusion decision) occurred, it occurred because he was conducting an investigation into whether he had engaged in unlawful conduct. [120] In examining whether the given reason for the treatment of the applicant was as Mr Mitchell said, it is useful to consider whether there was anything that happened apart from the stealing incident, and its denial, and the failures to take responsibility associated with it, which might possibly explain Mr Mitchell's conduct. For example, there was nothing in the encounter between them that day or any other staff member which threw up the question of the applicant’s race or religion or which suggested any relevance of to the explanation for what the applicant had done and how he was being disciplined because of it. His race or religion were not discussed or mentioned to anyone that day, or any other time. [121] Ordinary human experience suggests that persons who have significant positions to manage security in public institutions or business organisations, such as those who administer casinos, do not randomly initiate racist or anti-religious treatment toward complete strangers who use their employer’s businesses or are customers of their employer. [122] One of the issues was whether in fact, the applicant had knowingly downloaded the credit onto his card. The respondents sought to make out an affirmative case in that regard and pointed to a number of suspicious aspects of his conduct that day. They included that he was said to be looking around the room as he walked through it checking or looking at the machines, and he ultimately found the one which had not had the credit downloaded and was left unattended. They also pointed to the way in which he selected that machine and within less than 30 seconds had put his card in it, downloaded the credit on it and left the scene only to then cash out the card 4 minutes later at a remote cash machine, well away from the area where this gaming machine had been used by him for its credit. They suggested that the story he gave was in many respects internally conflicting, depending upon which version one took including his ultimate version given in testimony, and contended that I ought to reject his testimony that he had not knowingly or intentionally stolen or taken this credit. [123] Mr Mitchell explained that it might have been possible to unknowingly download the credit on a gaming machine (including someone else’s credit sitting on the machine) to your own card, because once your card had been inserted, it would do so if you sought simply to retain the existing credit on your card. So, one might, while downloading one’s own credit onto their card from a machine, also download someone else’s credit that was on the machine. [124] There is much to be said for the proposition that the applicant’s story lacked credibility and there were concerning elements to his conduct that day. He acted extremely quickly to approach the machine in question, which was the second in a row of four. The first had a lit indicator on it that it was reserved. There were two others to the right of the one he used that could have been used and about which there seems to be no suggestion they were dirty, but he did not attempt to use those once he removed his card. He downloaded the credit and left without attempting to play any game on the machine in question. The person who had been using that machine with the accumulated credit was only away from it for approximately a minute. The applicant was not in the room when she had left, and he would not have known how long she had been gone or when she might return. If the applicant had stayed any -- 34 of 38 -- 35 longer than he did, which was barely 30 seconds, he almost certainly would have been confronted by that patron who was only away from the machine in another room for about a minute, and she might have seen that he had downloaded her credit. The speed with which he then moved to remove the credit from the card and convert it to cash is unexplained. [125] There were many other significant discrepancies in his story about what he was doing in the hour after the credit downloading incident before he was confronted by casino staff and particularly Mr Mitchell. Why he remained at the casino, what amount of alcohol he drank and whether the explanation he gave to Mr Mitchell when confronted was honestly held are all attended with doubt. [126] In considering how to treat the evidence of what the respondents contend was a dishonest act by the applicant I have regard to the well-known principles to be derived from the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 as to what is the proper method for the application of the civil standard to the task of proof of facts. In that regard the principles were conveniently summarised in this context in Leigh v Bruder Expedition Pty Ltd [2020] QCA 246 at [16], where Sofronoff P as he then was, stated: Dixon J said that the application of the civil standard to proof of facts was not a mere mechanical comparison of probabilities. Rather, the fact finder must feel an actual persuasion of the occurrence of the relevant fact before its existence can be found. An opinion that a state of facts exists may be held according to indefinite gradations of certainly. However, except in criminal cases, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. Reasonable satisfaction on the balance of probabilities is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. …The seriousness of the allegation made, the inherent unlikelihood of an occurrence, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. His Honour said: “This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.” [127] In the end, having regard to the seriousness of the allegation made, the prospects that the credit could have been downloaded inadvertently, and the gravity of the consequences flowing from a finding of dishonesty or theft, I am not persuaded to the requisite standard that he did dishonestly appropriate the credit on that machine. He had been there all day, he had been drinking, he says he was getting the alcohol out of his system to be able to drive his wife’s car home. He clearly has some English language difficulties and may not have fully understood what Mr Mitchell was saying to him had happened, or what Mr Mitchell was trying to get him to do to make restitution or reparations. -- 35 of 38 -- 36 [128] Nor do I need to reconcile all this evidence for the purpose of deciding this case. Much of his evidence taken from his various statements is conflicting or unconvincing. However, it is not necessary to make specific findings about whether he had knowingly taken or stolen the relevant credit to decide this matter. In the end I am not persuaded to the requisite standard of satisfaction that he did knowingly take or steal the relevant credit. [129] The applicant made numerous allegations that he was treated condescendingly, violently, against his will, threateningly, in an in humane way. The video evidence does not bear out his contentions in any way. I was asked to infer from the invention of these serious allegations against Mr Mitchell that the applicant lacked credibility, and that his, evidence should be rejected. Since, these serious allegations have been made against Mr. Mitchell they should be properly dealt with. [130] In my view, not only does the objective evidence not support any of these allegations, they are entirely without substance. Amongst other allegations that were made was that the video evidence had been selectively tampered with in ways that omitted these acts of violence and intimidation. I reject those assertions as being entirely without foundation. [131] Likewise, one can listen to the audio taped evidence of what was said during their encounter. At the time the applicant made his complaint in 2022 and later when he prepared written statements for this tribunal, he was unaware of what was in the video tape and the audio record. However, he must have known that there was a video tape record because he was told by Mr. Mitchell during their encounter that day that Mr Mitchell had viewed the videotape and confirmed that it was clear that the applicant was the person who was seen to be downloading the credit. [132] The applicant only saw and heard the digital record of the relevant events that occurred that day, when he saw the videotape and heard the audio this year. Yet his current version of what happened still bears little resemblance to what that physical evidence shows, and the version of events that he sought to give after he saw that material, including his testimony before me notwithstanding the physical evidence, still involves insistence that he was subjected to threats, violence, intimidation, and antagonistic treatment even though neither the video or audio evidence in any way bear that out. The notion that he was subjected to threats, violence, intimidation, and antagonistic treatment but that it was somehow missed by or deleted from the digital records is fanciful. Similarly, the notion that he was subjected to those threats, violence, intimidation, and antagonistic treatment only while off camera does not bare scrutiny when compared to the relatively respectful way in which he was treated on camera. Mr Mitchell had no motivation to want to treat him in that way in any event. [133] The applicant was self-represented and clearly had no skills of a forensic kind and no ability to understand what was involved in cross-examining a witness. That said, he made no attempt to discredit the evidence which Mr Mitchell gave that the things that he did that day were in no way concerned with religion or occurred for the reasons that he gave in his statement and evidence before me and which had nothing to do with protected attributes and everything to do with the applicant’s perceived dishonest conduct, failure to acknowledge responsibility and failure to repay the sum taken. [134] The applicant was highly critical of the failure of the casino to give him an opportunity to repay the ninety-eight dollars that he had taken. He was critical of what he said was the failure to allow him an opportunity to go to an ATM or to raise the money from -- 36 of 38 -- 37 someone else who was in the casino. The fact is there when he was told he could avoid any serious consequences and simply be cautioned if he repaid what he took, he volunteered an amount of cash which was $15 less than he had taken, but did not volunteer to raise the rest by going to an ATM or speaking to anyone or to do anything else. It was his choice not to volunteer that he might have had the capacity to raise the difference quickly. [135] Mr Mitchell told him that he was not going to accept a part payment and his explanation for that when he gave his oral evidence was entirely acceptable, namely that it was about giving recompense to the victim, that is the gaming machine operator who had lost the credit and it was not for him to approach that person with less than the amount that had been taken. It was essentially a matter for the complainant who had the credit taken, or whose credit had been “scavenged” to use one word to describe what he did, to feel that there was no need for police involvement and for the matter to be resolved fully and discreetly. When that could not be achieved because the applicant did not have enough money to refund it and did not say that there was any means by which he could raise those monies, Mr Mitchell took the action that he said that he had on many occasions, even when the amounts in question were less than two hundred dollars. [136] The applicant made much of the fact that although it had been asserted that this was a common practice to impose exclusions on persons where the sum scavenged was less than $200. He complained that the respondents produced no solid evidence or particular examples of it. The applicant stated that he queried whether the casino had ever excluded a VIP platinum member before and how many exclusions. [137] However, Mr Bakon, whose role was General Manager - Asset Protection for Treasury Brisbane casino, said that there had been many examples of the imposition of such a penalty as exclusion, where that had been the amount involved or less, and he was not challenged in any way on that evidence by cross-examination. For the purposes of these proceedings, he reviewed The Star's records and confirmed that 50 exclusion directions have been issued for incidents at Treasury Brisbane premises involving the theft of amounts of less than $200 (whether those thefts related to credits, chips, or cash) in the period between 1 July 2020 and 4 November 2023. During the same period, 39 exclusion directions were issued for incidents at Treasury Brisbane premises involving the theft of amounts of more than $200 (whether those thefts related to credits, chips, or cash). He was not challenged in any way on that evidence by cross-examination either. [138] As I found earlier in these reasons, an appropriate comparator is another person who was not a Muslim and not a person of Middle Eastern race who found himself under investigation at the casino for stealing or appropriating credit of less than $200 from another patron, in the circumstances in which he otherwise found himself while under that investigation and in the way he was treated as a result of the investigation. I accept Mr Mitchell’s evidence that at all times, he treated Mr Alkhousi no differently than he would have treated any other patron of the Casino, including those without those protected attributes, in similar circumstances. Mr Alkhousi was treated no less favourably by either respondent than the hypothetical comparator would have been treated. -- 37 of 38 -- 38 Disposition, Orders and Costs [139] The basis for the decision here was not either of the relevant attributes in the sense contemplated by section 10 of the ADA. The claim based upon direct discrimination must therefore fail. [140] It must follow that the application is to be dismissed. [141] The respondents have asked that they be heard on the question of costs after judgment delivery. They also contend that Section 209 of the ADA provides the Tribunal with a broad discretion to order a respondent to do specified things to redress loss or damage suffered by an applicant. They contend that on his own medical evidence, Mr Alkhousi reports being diagnosed with 'gambling addiction' and that this factor would on its own, be a powerful discretionary factor against any order overturning the exclusion. I have not made any order overturning the exclusion. It is suggested that this matter is one that, at its foundations, is frivolous, misconceived and lacking in substance, and that a costs order would therefore be appropriate. [142] I am bound to say that as I presently see the matter, and without deciding the question of costs, this is not a matter where a costs order ought to be made. [143] I do grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. -- 38 of 38 --