Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353 PARTIES: CORALIE CASSADY (applicant) v HARDINGS N.Q. PTY LTD (first respondent) and DEAN ANTHONY NIXON-HARDING (second respondent) APPLICATION NO: ADL019-20 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 18 October 2021 HEARING DATE: 8 October 2021 HEARD AT: Townsville DECISION OF: Member Pennell ORDER: The application is dismissed CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where the respondents operate a backpacker accommodation complex – where the respondents have a policy of not accepting bookings from locally based residents – the respondents’ policy is published on its own webpage and other accommodation booking websites – the applicant’s usual place of residence was in the same locality as the respondents – where the applicant was refused accommodation – whether comments made which do not contain a reference to an attribute constitutes discrimination on an attribute of race – whether direct discrimination Anti-Discrimination Act 1991 (Qld), s 4, s 7, s 7(g), s 8, s 10(1), s 10(2), s 10(3), s 11, s 81, s 83(d), s 136, s 141 and Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(a), s 28(3)(b) Kioa v West (1985) 159 CLR 550 -- 1 of 12 -- 2 Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 15 Park v State of Queensland & Anor [2013] QCAT 183 Malone v Pullen & Hungry Jacks Pty Ltd [2004] QADT 11 Qantas Airways v Gama [2008] FCR 537 APPEARANCES & REPRESENTATIONS: Applicant: Respondents: Self represented Represented by the second respondent REASONS FOR DECISION Introduction [1] In early 2020, the Queensland Human Rights Commission (‘QHRC’) received a complaint from Coralie Cassady (the applicant). She alleged that she was subjected to racial discrimination and vilification. She also complained her human rights were breached, in particular her cultural rights. The QHRC accepted her complaint because the allegations were reasonably sufficient in detail to indicate an alleged contravention of the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’).1 [2] After reviewing her complaint, the QHRC characterised the complaint as alleged race discrimination in the area of accommodation/housing2 and referred the complaint to the Tribunal.3 Notwithstanding that referral, a feature of this matter is that neither the Tribunal nor the parties are bound by the QHRC’s characterisation of the complaint. [3] The applicant resides in the Townsville suburb of Kirwan. Situated approximately 10 kilometres from the Townsville CBD, Kirwan is primarily a residential area with of number of leisure and retail facilities plotted throughout the suburb. Statistically, an estimated 23,000 people currently live in the suburb, of which approximately 11% of the residents are Aboriginal and Torres Strait Islanders.4 [4] Hardings N.Q. Pty Ltd (‘the first respondent’) is a registered Australian Proprietary Company that operates an accommodation complex called Reef Lodge Backpackers (‘Reef Lodge’). Reef Lodge is described as one of the most affordable and cheapest accommodation options in the Townsville CBD.5 The second respondent is a 1 Anti-Discrimination Act 1991 (Qld), s 136 and s 141. 2 Anti-Discrimination Act 1991 (Qld), s 7(g), s 10, s 11 and s 81. 3 Referral received 23/04/2020. 4 Australian Bureau of Statistics data by regions: https://dbr.abs.gov.au/index.html. 5 As described on the webpage for the Reef Lodge Backpackers: https://reeflodge.com.au. -- 2 of 12 -- 3 director of the first respondent. For the purposes of these reasons, both respondents will at times be collectively referred to as ‘the respondent’. [5] The hearing of the applicant’s complaint took place on 8 October 2021. The applicant’s only witness was herself, whereas the respondent relied upon his evidence, and the evidence of three witnesses. The only issues advocated by the applicant were allegations she was discriminated against because of her race and was treated less favorably when denied accommodation by the respondent. The applicant’s case [6] With the intention of attending a function in the Townsville CBD area, the applicant telephoned the respondent and booked accommodation for that night.6 She later travelled from her residence in Kirwan to the Reef Lodge where she attempted to check in. [7] When she produced her identification to register, the respondent declined to accept her booking citing that locals from the Townsville area were not accepted as guests. She alleged the respondent said – I can’t give you accommodation because we’ve had trouble from Kirwan locals before.7 [8] Because she was not allowed to stay at the Reef Lodge, she went to another accommodation complex nearby where she was able to secure accommodation for that night. Approximately a month later, she complained to the QHRC.8 When making her complaint and explaining the allegations, she described the event as – On the 19th December 2019 I phoned Reef Lodge Backpackers re overnight accommodation. Went in next day to pay for my accommodation. Gave my ID which states I live in Kirwan. Manager then said I can’t give you accommodation because we’ve had trouble from Kirwan locals before. His wife said on the phone ‘that’s our policy’ – we’ve been in this business for 18 years. I am – Aboriginal – with a reputation in Townsville. Unfair treatment happened when I physically presented myself to pay cash. When I made my booking OVER THE PHONE the manager simply had NO IDEA that I was an Aboriginal person making the booking – You can’t see colour over the phone.9 [9] She went on to explain that in the past, she had stayed in many hotels/motels in Townsville, travelled extensively throughout Australia and visited a number of overseas countries without any racial connotations. On the day in question, she 6 On 19/12/2019. 7 Applicant’s statement received by the Tribunal on 16/03/2021. 8 Complaint made to the Queensland Human Rights Commission on 23/01/2020. 9 Applicant’s original complaint received by the Queensland Human Rights Commission on 23/01/2020. All emphasis is as per the applicant’s application to the Queensland Human Rights Commission. -- 3 of 12 -- 4 intended to stay overnight in the Townsville CBD area to attend an event arranged by an Aboriginal organisation,10 however she claimed – I COULD NOT enjoy myself at all at the event because of the RACIST REFUSAL of accommodation that had greatly IMPACTED upon my already fragile mental health wellbeing.11 [10] The applicant suggests that racism is an imported disease, it manifests very well in Townsville and the respondents’ refusal to allow her to book into the Reef Lodge backpacker hostel left her racially insecure and very emotionally distraught. She added the respondents’ – scathing and thinly veiled racially motivated words have been permanently etched in my brain.12 [11] When she went to the Reef Lodge to check in, she noticed two other women waiting in the foyer. She later discovered that one woman was from Port Moresby and the other was from Aurukun. When she was denied the opportunity to book into the Reef Lodge, she walked a short distance to the Rambutan Hotel where she booked in. Shortly after arriving there, the two women she saw at the Reef Lodge arrived. She learnt that both women had been denied accommodation by the respondent. This left her to ponder – The fact that THREE BLACK WOMEN were ALL REFUSED accommodation at the Reef Lodge Backpackers within some minutes of each other…tells me that open racism towards blackfellas was indeed an obvious factor and the major reason for the refusal of accommodation.13 [12] In her statement to the Tribunal the applicant repeated that allegation, albeit with a slight variation when she said – The fact that three black women were ALL refused accommodation at the Reef Lodge Backpackers within minutes of each other speaks volumes for us blackfellas who are still being subjected to blatant racism.14 [13] Her statement also contained the comment that – The sheer humiliation of being refused accommodation based on your physical appearance is extremely hard to forget.15 [14] Notwithstanding that she now asserts that being refused accommodation was based on her physical appearance, that is, she was refused because of her indigenous appearance, no mention of that allegation was made in her original complaint apart from claiming – 10 Applicant’s statement received by the Tribunal on 16/03/2021. 11 Applicant’s email to the Tribunal dated 18/12/2020. All emphasis is as per the applicant’s material. 12 Applicant’s email to the Tribunal dated 18/12/2020. 13 Applicant’s email to the Tribunal dated 18/12/2020. All emphasis is as per the applicant’s material. 14 Applicant’s statement received by the Tribunal on 16/03/2021. All emphasis is as per the applicant’s material. 15 Applicant’s statement received by the Tribunal on 16/03/2021. -- 4 of 12 -- 5 I was stereotyped regarding the high crime suburb that I live in. Was REFUSED overnight accom because ‘We’ve had trouble from Kirwan locals before’.16 [15] In regard to a remedy, the applicant wanted three things. She wanted an apology from the respondent published in the Townsville Bulletin newspaper; she wanted the respondent to pay for her accommodation for one night at The Ville, the local Townsville Casino Hotel; and finally, she wanted the respondent to pay her $2,000 compensation for the ongoing emotional trauma she experienced since being denied accommodation. [16] In respect to the applicant’s suggestion that she is suffering ongoing emotional trauma, it is noted that her earlier statement to the Tribunal suggested that the event greatly impacted upon her already, or pre-existing fragile mental health, and – I now experience increased mental anguish when I’m requesting hostel accommodation as the thought of being ‘refused’ accommodation is forever constant on my mind.17 [17] She was not able to provide any evidence to support her suggestion the event had a psychological impact on her. She produced no medical or other expert or professional evidence to support her claim. She arrived at the compensatory amount of $2,000 by, and to use her words, “I plucked it out of the air”. In her opinion, she felt that race relations in Townsville had been set back 20 years because of what the respondent said to her, although she produced no evidence to substantiate this allegation. [18] Returning to her suggestion that two other women had been refused accommodation that same day, an observation is that despite a period of almost two years since her complaint was made, no statement or other evidence from either of those two women was produced to support that allegation. This is notwithstanding the applicant possessing their names and their usual place of residence, and the phone number of one of the women. [19] An observation of the applicant’s original allegation raised with the QHRC is that there was no reference made to these women being at the respondents’ premises; no reference was made to the applicant speaking to either of them; and no reference made to the respondent refusing them accommodation because of an attribute of race. [20] It was only much later that the applicant made any reference to them.18 That reference was included in her email to the Tribunal on 18 December 2020, which was twelve months after the respondent refused her accommodation. [21] Her comments relating to her conversations with the two women extended only to asking them if they had been refused accommodation, to which they replied ‘yes’. In her email to the Tribunal, the applicant said – 16 Applicant’s original complaint received by the Queensland Human Rights Commission on 23/01/2020. All emphasis is as per the applicant’s material. 17 Applicant’s statement received by the Tribunal on 16/03/2021. 18 The applicant’s reference to the two women first arose in her email to the Tribunal dated 18/12/2020. -- 5 of 12 -- 6 A significant relevance in relation to Reef Lodge Backpackers non-functioning cctv is the fact that two other BLACK women were ALSO REFUSED accommodation at the Reef Lodge Backpackers on the very SAME DAY. If the Reef Lodge Backpackers cctv had been functioning on Friday the 20th December, 2019 it would have captured vision of these two other BLACK women who were ALSO refused accommodation. These two black women walked into Rambutan Backpackers ………… When I saw them enter Rambutan Backpackers I immediately asked them if they had been refused accommodation and that both said ‘yes’.19 [22] If there were indeed two other women who were refused accommodation by the respondent, and the applicant spoke to those women, a noted observation of her interaction and conversation with them was a distinct absence of any comment made by either of the women as to why they were refused accommodation. The only known factor is the applicant asked them if they had been refused accommodation, to which they said yes. The exact reason they did not stay at the Reef Lodge is unknown and it is not for the Tribunal to speculate beyond the available evidence, after all, there could have been a myriad of reasons why they did not stay at the Reef Lodge. [23] Considering the applicant’s position on this, and the evidence thus far, any suggestion by her that the respondents’ action towards the women involved a racial connotation could only be supposition and fanciful conjecture on her part. It was the applicant and her alone who suggested that the respondents’ rejection of the women was racially motivated, and this rejection was based on their individual cultural background or ethnicity. The applicant’s very own evidence does not support this assertion and this is mere speculation on her part. I find no evidence of any wrongdoing or unlawful conduct by the respondent towards those two women. [24] In conclusion to the applicant’s case, she provided a number of newspaper clippings of various letters she wrote to the Editor of the Townsville Bulletin newspaper, as well as other documents relating to her writing ability and character. No criticism is made of her character; however, the contents of this additional material is not relevant to the facts in issue of this case.20 The respondents’ case [25] The respondent has operated the Reef Lodge Backpackers in the Townsville CBD for the past 19 years. Guests from all over the world have stayed in those premises, with three of those guests personally appearing as witnesses at the Tribunal hearing. [26] For at least 15 years, the respondent has adopted a policy of not allowing people from the Townsville region to stay at the Reef Lodge.21 This policy was adopted because of previous trouble caused at the hostel, and this trouble was generally centred on Townsville locals who stayed as overnight guests. 19 Applicant’s email to the Tribunal dated 18/12/2020. All emphasis is as per the applicant’s material. 20 Applicant’s material received by the Tribunal via email on 26/07/2021. 21 Contained within the respondents’ material were examples of the implementation of the policy prior to the applicant’s booking being rejected. See respondents’ material at pp 13 – 15. -- 6 of 12 -- 7 [27] What the respondent discovered was that local Townsville residents would book into the Reef Lodge, and then from anywhere up to 15 people would be brought back to that room causing major disturbances through alcohol fuelled parties and sometimes fights. [28] Other reasons for limiting the accommodation to locals was frequent examples of local prostitutes and drug dealers booking accommodation and using the Reef Lodge for illegal and immoral purposes. On other occasions, guests were getting ‘preloaded’ with alcohol and drugs prior to ‘hitting the town’, this was disturbing other guests. Since adopting the policy, the prevalence of those earlier difficulties has significantly dissipated. [29] Identified on the Reef Lodge website booking page was a reference to – Please note: Reef Lodge does not accommodate local people from the Townsville region.22 [30] That notation is also included on the Booking.com and Hostel World websites, which are both online booking engines. A similar notation is exhibited for the public’s information at the Reef Lodge front reception. [31] In regard to the applicant’s complaint, the respondent agreed that the applicant had telephoned to enquire about a room for the night and made a booking. Local people seldom wanted to stay at the Reef Lodge, so no thought was given to asking her if she was from the Townsville area. [32] When she arrived to check in, she was handed a check-in slip which she filled out. She was then asked to produce her drivers’ licence to crosscheck the addresses on both that identification and her registration slip. Upon seeing that she had identified as living in Kirwan, she was asked whether ‘Kirwan’ was the Townsville suburb. She confirmed that it was, and she was told – Sorry but we don’t take people from Townsville. [33] It was explained to her that this policy was displayed on the Reef Lodge website. At that point the applicant got angry, became argumentative and repeatedly made accusations that the respondent was a racist.23 [34] In regard to the applicant’s suggestion that the two women from Port Moresby and Aurukun were present, the respondent could not specifically recall the two women, but accepts that it is possible they were at the Reef Lodge when the applicant arrived. Apart from that, the respondent had no recollection as to why the women did not stay at the Reef Lodge. [35] At the hearing the applicant suggested it was convenient no CCTV footage was available of when she arrived at the Reef Lodge. In explaining why the CCTV footage was not available, the respondent said the CCTV recording was a continuous loop. It took approximately three weeks for that loop to complete. If the footage is not saved in that time, the new loop overrides the previous recording. No 22 Exhibit 1 and Exhibit 2. 23 Respondents’ statement received by the Tribunal on 02/08/2021. -- 7 of 12 -- 8 effort was made to hide the footage, it simply was not available because by the time the respondent was notified of the applicant’s complaint, a new loop had commenced and the footage from the day in question was recorded over. [36] I consider that to be a plausible and acceptable explanation because it was not until 18 February 2020 when the QHRC notified the respondent in writing (via email) of the applicant’s complaint. [37] The respondent relied upon a number of witness and their statements, in particular three witnesses who gave personal evidence at the hearing. They were Tino Dube, Ronald Woodward and Michael William. The applicant did not challenge the evidence of these witnesses, and I found each witness to be frank and credible. [38] Tino Dube’s ethnicity is African. She emigrated from Africa to New Zealand in 2009. In August 2019, she travelled to Townsville for work purposes where she stayed for quite some time at the Reef Lodge prior to the impact of the COVID-19 pandemic. She returned to New Zealand in early 2020 but returned to Townsville in June 2021. She has stayed at the Reef Lodge since her return. She said – I have not experienced any racism towards me or anyone of colour during my stay from the owners or any guests. I believe I have not been treated any different because of my nationality, ethnic or national origins.24 [39] Ronald Woodward is a proud indigenous Gungurri man from Central Queensland. He arrived in Townsville 13 years ago and has known the respondent since that time. He confirmed that for the entire time he has known the respondent, local Townsville residents have not been permitted to stay at the Reef Lodge. [40] He added that he has never – witnessed the respondent espouse racist ideas, ideology or deal with any person in a way that would be derogatory towards their skin colour or race. I simply wouldn’t be friends with someone who would.25 [41] Michael William is an indigenous man from the Western Australian region and currently resides in Townsville. He is an electrical engineer and travelled to Townsville in September 2019 in search of work. Upon arriving in Townsville, he stayed at the Reef Lodge for approximately five weeks, and this is where he met the respondent. Since then, they have become close friends and maintain regular contact with each other. During his stay at the Reef Lodge, and the subsequent period that he has known the respondent, he was able to point out that the respondent has never shown – any signs of racist behaviour to any manner of people from all over Australia and the world. This would be extended to all Australians and aboriginals inclusive.26 24 Tino Dube’s statement, respondents’ material, pp 4 – 5. She also featured in a tourist article depicting a photograph of her and two other New Zealand backpackers which was published in the Townsville Bulletin newspaper on 06/03/2020: See Exhibit 7. 25 Ronald Woodward’s statement, respondents’ material, p 6. 26 Statement of Michael Williams, respondents’ material, p 8. -- 8 of 12 -- 9 [42] Included within the material were a number of statements from regular guests at the Reef Lodge. Apart from the three witnesses already discussed, none of the other witnesses attended the hearing to confirm their evidence. [43] The statements relied upon by the respondent relate to – (a) Peter Kopanye. He is from Mt Hagen in Papua New Guinea. At the beginning of each year, Mr Kopanye travels to Townsville where he stays at the Reef Lodge. The last occasion he stayed at the Reef Lodge was just before the COVID-19 restrictions commenced. In all the times that he has stayed at the Reef Lodge, he has never experienced racism. (b) Linda Woodward is an indigenous and a proud Gungurri and Bidjara woman, and the wife of Ronald Woodward who gave evidence at the hearing. She has lived in Townsville for 26 years and has known the respondent for 12 years. She has never witnessed any kind of racism from the respondent and does not accept that the respondent would display any prejudice towards another person based on the indigenous heritage or skin colour.27 (c) Isaac Lapani. He is from Papua New Guinea and has stayed at the Reef Lodge approximately seven times over the past three years. He has never felt any racism by the respondent towards him and has always enjoyed his stay in Townsville.28 (d) Ann MacGillivray. She is a fly in, fly out remote area nurse. She grew up in an African culture and her first language was not English. When visiting Townsville over the past 10 years, she has often stayed at the Reef Lodge. In her experience, it would be incomprehensible for the respondent to be considered in the manner described by the applicant.29 (e) Philip Makar. In his statement, Mr Makar detailed his experience of being treated in a racist manner by another guest at the Reef Lodge and steps the respondent took to protect him by ejecting the other guest from the premises.30 [44] In conducting proceedings, the Tribunal is obliged to employ fair procedures adapted to the circumstances of each particular case,31 and although not bound by the rules of evidence,32 it is required to act fairly33 and comply with the rules of natural justice.34 Having regard to the contents of each of those statements described above, I am of the view that they have significant relevance to these proceedings. The evidence provided by those witnesses corroborates the character evidence given by Tino Dube, Ronald Woodward and Michael William. None of the evidence was challenged by the applicant and given the circumstances of this case, I consider that to allow the material into evidence would not prejudice or place 27 Linda Woodward’s statement, respondents’ material, p 7. 28 Isaac Lepani’s statement, respondents’ material, p 9 and Exhibit 6. 29 Anne MacGillivray’s statement, respondents’ material, pp 11 – 12. 30 Philip Makar’s statement, respondents’ material, pp 16 – 18 and Exhibit 5. 31 Kioa v West (1985) 159 CLR 550, 585. 32 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b). 33 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 34 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). -- 9 of 12 -- 10 the applicant at a disadvantage. Nor would it be unfair to her for weight to be placed upon those statements as the information goes towards the substantial merits of the respondents’ case. The legislative pathway [45] The Anti-Discrimination Act promotes equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and certain associated objectionable conduct. Described within the Anti-Discrimination Act is a prohibition placed upon direct discrimination and indirect discrimination. [46] In regard to this matter, direct discrimination35 is treating a person with an attribute,36 including race,37 less favourably than another person without the attribute in circumstances that are the same or not materially different. This conduct is prohibited and can apply if a person is treated unfavourably in any way in connection with accommodation.38 Accommodation includes a hotel or motel, and a boarding house or hostel.39 It is not necessary that the person who discriminates considers the treatment is less favourable40 and any motive for discriminating is irrelevant.41 Conclusion [47] The treatment by one person towards another in a less favourable manner because of that person’s race is abhorrent and the law provides that it will never be condoned. The issue in this matter is by what context was the reference to the suburb Kirwan or the locality of Townsville made, and was the respondents’ comment discriminatory towards the applicant so that she was treated less favourably. [48] The respondent is entitled to operate the Reef Lodge Backpackers in a manner of their choosing, provided the conduct of the business does not offend any laws. The policy of not allowing Townsville locals to stay at the Reef Lodge was adopted for a specific purpose and reasonable notice is given to the Townsville locals either at the Reef Lodge’s front reception area, on its website and on other online booking engines. This is a business model put in place by the respondent to combat the difficult experiences that were earlier outlined in these reasons. [49] Upon any reasonable examination of the policy, the respondents’ conduct when dealing with the applicant; and the manner and context in which the words used by the respondent towards the applicant fails to meet the threshold required under the Anti-Discrimination Act. [50] At best, the applicant’s case centers on the words spoken by the respondent and her interpretation and assumption on what was said. Granted each party has a slight variation of the versions of the words used, but the overall context of the phrase 35 Anti-Discrimination Act 1991 (Qld), s 10(1). 36 Attribute means an attribute set out in the Anti-Discrimination Act 1991 (Qld), s 7. 37 Anti-Discrimination Act 1991 (Qld), s 7(g). 38 Anti-Discrimination Act 1991 (Qld), s 83(d). 39 Anti-Discrimination Act 1991 (Qld), s 4 and Schedule 1. Accommodation includes a hotel or motel, and a boarding house or hostel. 40 Anti-Discrimination Act 1991 (Qld), s 10(2). 41 Anti-Discrimination Act 1991 (Qld), s 10(3). -- 10 of 12 -- 11 used was to inform the applicant that she was being denied accommodation at the Reef Lodge because she was a local Townsville resident, and not for any other reason. [51] It is surprising the applicant argued against that proposition because her very first or original complaint referred to her being the subject to discrimination because she was ‘stereotyped regarding the high crime suburb’ she lived in. Apart from suggesting that colour cannot be seen over the telephone, she did not refer to discrimination on the basis of race; this was merely her perception. A perception, in my view, was a mistaken belief based on an innocent and inoffensive comment made by the respondent. [52] In my view, words alone are not discriminatory, unless their meaning or interpretation carries a flavour which falls within the attributes prohibited by the Anti-discrimination Act.42 Evidence must exist that those words amounted to a less favourable treatment of the applicant. [53] It is insufficient that she may have been upset by the words said by the respondent and may have interpreted the words as either patronising,43 insulting,44 offensive,45 insensitive,46 bad mannered47 or politically incorrect;48 or in her words, racist. The words said by the respondent and the interpretation she placed upon them is insufficient and will not constitute unlawful discrimination; unless a less favourable treatment of the applicant is proved to the requisite standard. [54] When looking closely at the evidence presented by both parties in regard to what they each say were the words said, there is very little difference. The common denominator is the reference to the local Townsville area. The applicant argues that the respondent said, “I can’t give you accommodation because we’ve had trouble from Kirwan locals before”, whereas the respondent said that after confirming that the applicant lived in Kirwan, she was told “Sorry but we don’t take people from Townsville”. It was never the respondents’ position that the Reef Lodge had experienced difficulties with people specifically from Kirwan, the policy adopted by the respondent related to all people from the Townsville region. Applying the requisite standard of proof, it is on the balance of probabilities that I prefer the respondents’ version to the applicant’s allegation. What the respondent said correlates with the policy and marries up with the words used on the various webpages. [55] Therefore, I am satisfied that the words used by the respondent were not racially motivated, but instead were a policy adopted to ease the difficulties experienced by the Reef Lodge in accepting local Townsville based residents as clients. [56] Returning to the issue of ‘race’. There is a distinct lack of any evidence to support any hypothesis the respondent was particularly minded to exclude someone who fell 42 Anti-Discrimination Act 1991 (Qld), s 7. 43 Moffat on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 15, [20]. 44 Park v State of Queensland & Anor [2013] QCAT 183, [20]. 45 Park v State of Queensland & Anor [2013] QCAT 183, [20]. 46 Malone v Pullen & Hungry Jacks Pty Ltd [2004] QADT 11, [17]. 47 Malone v Pullen & Hungry Jacks Pty Ltd [2004] QADT 11, [17]. 48 Qantas Airways v Gama [2008] FCR 537. -- 11 of 12 -- 12 within any of the many attributes as provided by the Ani-Discrimination Act, in particular race. Even on the applicant’s own evidence, any reference made to ‘race’ was first raised by her. [57] When refused accommodation, she said to the respondent “you can’t see colour over the phone”, yet there was no reference within her complaint to the QHRC, or her material filed with the Tribunal about the respondent making any reference to ‘race’. It was only at a much later subsequent time that she purposely expanded upon this by emphasising an allegation the respondent was racially motivated by refusing accommodation to her and the two women from Aurukun and Port Moresby. She said this – …tells me that open racism towards blackfellas was indeed an obvious factor and the major reason for the refusal of accommodation.49 [58] Yet when looking closely at the evidence, she asked those women if they had been refused accommodation, to which they both said “yes”. According to her own evidence, nothing more was exchanged between them, she did not elicit from them why they did not stay at the Reef Lodge or what they spoke to the respondent about. It could never be accepted that when these women replied ”yes” to her question, this somehow provided confirmation the respondent was racially motivated, or that racism was an obvious factor. It is purely the applicant’s assumption about what happened and as I have already outlined, there are many possibilities why those women did not stay at the Reef Lodge. [59] Overall, I find a complete lack of credit in all of the applicant’s allegations. She has taken a simple comment made to her that makes no reference to her racial heritage and culture, and she immediately assumed that being refused accommodation at the Reef Lodge was racially motivated. Her assumptions or hypothesises about what happened are not convincing. [60] In conclusion, I am of the view that the exchange of words from the respondent to the applicant where she was refused accommodation based on her home address were not racially motivated. I am also satisfied that the respondents’ actions and/or words did not cause the applicant to be treated unfavourably in connection with the accommodation because of the attribute of race; and the respondent did not discriminate against the applicant either directly or indirectly. [61] Finally, repeating my earlier conclusion about the respondents’ alleged conduct towards the two other women, I am similarly satisfied that there is no evidence of any wrongdoing or unlawful conduct by the respondent towards the applicant and I dismiss her application in its entirety. 49 Applicant’s email to the Tribunal dated 18/12/2020. -- 12 of 12 --