Enares v Australian South Sea Islanders (Port Jacksons) Limited & Mooney [2014] QCAT 224

CITATION: Enares v Australian South Sea Islanders (Port Jacksons) Limited & Mooney [2014] QCAT 224 PARTIES: Ms Nasuven Enares (Applicant) v Australian South Sea Islanders (Port Jacksons) Limited and Mr Graham J Mooney (Respondents) APPLICATION NUMBER: ADL074-13 MATTER TYPE: Anti-discrimination matters HEARING DATE: 20 February 2014 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 15 May 2014 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Whether email publication is discriminatory – whether jurisdiction of Tribunal to determine whether a publication is defamatory – whether there is indirect or direct discrimination on the basis of race and sex – whether public vilification on the basis of race – whether proper respondent Anti-Discrimination Act 1991 (Qld) ss 7(a)(g), 9, 10, 11(4), 166. 227(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1)(c) APPEARANCES and REPRESENTATION (if any): APPLICANT: Nasuven Enares RESPONDENT: No appearance for Australian South Sea Islanders (Port Jacksons) Limited Mr Graham J Mooney -- 1 of 8 -- 2 REASONS FOR DECISION [1] The applicant, Ms Nasuven Enares complained to the Anti-Discrimination Commission Queensland about discrimination of her on the basis of race and sex. She also claimed public vilification because of her race. In the application she describes herself as ‘Pacific Islander origin – colour – black skin Australian.’ In the details of the complaint made, she said that she received at her residence unwanted emails and on 19 October 2011 she suffered ‘cyber-defamation.’ [2] In the annexure to the complaint, she said on 19 October 2011 at 9:17am Graham Mooney email address [email protected] sent an email to over 40 email addresses defaming my character, ethnicity, race and dress. The email contains 9-10 pages of accusations and insults on my character, cultural dress and behaviour of which (sic) harm I have sustained. I have attached this email and highlighted significant parts of the email including on page 3 of 19, ‘she wore her grass skirt with no sarong to cover her modesty, with only pants and no sarong under the grass skirt…’ The next sentence Mr Mooney goes on to say, ‘I judge her conduct near to a whore.’ Subsequently the email of 19 October 2011 at 9:17am from Mr Graham Mooney was circulated further on 18 October 2011 by Erica [email protected] and 20 October 2011 by Edward Yasso [email protected] and 27 October 2011 by Colin Terare [email protected]. No emails were sent directly to me by Mr Graham Mooney, however his email was circulated to the above persons, namely Erica Few, and she copied to Edward Yasso. Colin Terare was sent a copy directly from Mr Graham Mooney. [3] The matter was referred to QCAT on 21 August 2013 pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld). [4] The email to which the complainant referred was attached to the complaint as Annexure A. It was sent after a South Sea Islander forum was held. The relevant portions of the email highlighted by the complainant appear as follows: 1. Her Aunt, Ms Nasuven Ennares diligently sought from many of you on the committee with misconstrued stories and blatant lies to have her professional and cultural status being questioned publicly, is the reason I’m clarifying the position I hold in our registered organisation Australian South Sea Islanders (Port Jackson) Association in Sydney and the honour that was bestowed on me by the chiefs in receiving that dual cultural citizenship citation in the church on Sunday… 2. Imelda had the right to say that Nasuven manipulated all of you because Australian South Sea Islanders around this country have great knowledge of Nasuven past and we personally at Port Jackson know of her sly tactics when we tried to arrange the meeting with the ethnic affairs commission when she worked there. She manipulated her position as the president’s secretary and would not put me through to the president when I rang the commission to get appointment for our organisation. She questioned me on the relevance of what I wanted to speak to the president about and then would not put me through until -- 2 of 8 -- 3 she got the relevant information on PATC Sowaras South Sea Islander organisation that collapsed. She then put me through and announced it was Nasuven Ennares. I stated immediately to her that a new South Sea Islander body was in place, that I represent and I would report this incident back to them and one our board members complained directly to the minister of the ethic affairs portfolio over her misconduct in the position she held with the president and I note she has left that position soon after that altercation and I now meet her again at last weekend’s South Sea Islander forum in Bald Hills. [5] The email was signed Graham J Mooney and purported to be sent from [email protected]. It seems to initially have been sent to 7 people but then later forwarded on to many more. [6] Exhibit 10 contained the email complained of and although the page numbering differs from the numbering contained in the contentions by the applicant filed on 28 October 2013, it contains the comments of which the applicant particularly complains as follows: Nasuven Enares was nothing more than an egotistical maniac. Whilst she hid like a mongrel dog to excuse my French… I judged her conduct near to a “whore” and disrespected the wearing of kustom dress inappropriately to see her pants as it opened so many times when she passed in that grass skirt… It was disgusting and nothing more than her being a show pony. [7] As the email in part makes the statement that the author was attending the meeting in his capacity as Treasurer of the ASSI.PJ (Australian South Sea Islanders (Port Jackson) Limited) and the address used is [email protected], the applicant seeks to hold the first respondent, Australian South Sea Islanders (Port Jackson) Limited vicariously responsible for the statements in the email. [8] No one appeared on behalf of the Australian South Sea Islanders (Port Jackson) Limited but Imelda Davis who holds herself out as the President of the ASSI.PJ and is the niece of the applicant, advised that Graham Mooney ‘does not reside at the ASSI.PJ address and is not a member of the ASSI.PJ as stated in his statutory declaration.’ She said that gmail is not the official email used by the company and Mr Mooney is not the Treasurer. She asserts that Mr Mooney has no control of himself and was not representing ASSI.PJ. He was not an office bearer and in that regard she provided an ASIC and business names record (Exhibit 9) which was extracted from the ASIC database on 23 October 2012. It shows Imelda Davis as a current director having been appointed on 16 April 2010 and the current secretary. The other officers named in that document are Shireen Malamoo, Sonya Parter and Matt Poll. [9] She says that Mr Mooney was never the Treasurer and was never an office bearer. She also says that Mr Mooney has admitted that he was not associated with ASSI.PJ and it has been made clear that he is mentally unstable and not well. -- 3 of 8 -- 4 [10] Responses filed with the Tribunal maintained that the first respondent, Australian South Sea Islanders (Port Jackson) Limited was not a proper respondent and indicated that it would not be appearing. [11] During his appearance by phone, Mr Mooney said that he was not the Treasurer. [12] I am satisfied that ASSI.PJ was served with the material and it knew that the hearing was on but chose not to come to attend the hearing. In the circumstances I determined to proceed in its absence. [13] Also produced in support of that contention was a letter from Dr Simone Craig dated 18 September 2013 which certified that she had examined Mr Mooney and gave the opinion that he is suffering from an illness. That illness was particularised as requiring recent hospitalisation and was such that it required him to have regular blood test stabilisation and regular reviews with specialists at the hospital. She had recommended that Mr Mooney not travel or place himself under undue emotional stress. [14] In a statutory declaration sworn on 8 September 2013, Mr Mooney said, ‘I was not a board member nor was I a registered member of the Australian South Sea Islanders (Port Jackson) Limited pertaining to complaint matter forwarded by QCAT reference ADL074-13 received 2 September 2013.’ [15] In those circumstances, even if the publication amounted to actionable discrimination pursuant to the anti-discrimination legislation, in my view without more, the Australian South Sea Islanders (Port Jackson) Limited is not vicariously liable for the actions of Mr Mooney. [16] During the hearing, Mr Mooney did not display a full understanding of what was claimed against him. He denied using the term ‘whore’ and he denied getting an email from Chief Colin. The latter is not of great concern to the Tribunal but it is clear in the email sent, the term ‘whore’ does appear. As to the remainder of what is contained in the email, he did not provide any satisfactory explanation for his action. He did however say that he was under distress and he offered an apology and said that he would apologise for the parts of the email about which the complainant was concerned. The complainant in turn was not prepared to accept the apology in discharge of the application. [17] The applicant says that she is first generation descendant Australian South Sea Islander. Her cultural heritage is central to her identity and wellbeing. She is 76 years of age and she says that even in the wider Australian culture and community she has the right to respect as a woman and particularly one of her age. She says that the respondents have strenuously sought to undermine her status as a woman and a person of standing and achievement in her own cultural community. [18] She described the application as being based upon her claim to have been abused publicly by Mr Mooney at a time when he was associated formerly with ASSI(PJ) and that he did so in a manner and in terms that -- 4 of 8 -- 5 infringed provisions of the Anti-Discrimination Act 1991 (Qld) on the grounds of sex, race and cultural identity. [19] In addition to the words earlier identified, the applicant says that Mr Mooney is in breach of Part 3 section 10(1) of the Anti-Discrimination Act 1991 (Qld) that determines direct discrimination in relation to sex (gender) in his remarks about what is fit for ‘kustom costume.’ She quotes his remarks as ‘it was disgusting and she was frowned upon on Saturday when she wore her grass skirt no sarong to cover her modesty.’ [20] In her complaint she refers to Part 2 section 7(a) and (g) of the Anti- Discrimination Act 1991 (Qld) along with Division 2 section 204. [21] She summarises her allegation in part as ‘on the balance of probabilities, (s 205) Graham Mooney and ASSI.PJ Ltd used an email on 19 October 2011 to discriminate against me on the grounds of sex and race in accordance with Part 2, section 7(a) and (g).’ She relies on Part 3 section 11(4) of the Act which she says prohibits indirect discrimination. [22] She says that the publications were harmful to her, her family and damaging to her public profile as an advisor and advocate for Australian South Sea Islanders locally, nationally and internationally. [23] The applicant requests the following remedies: 1. Retraction by email within 14 days of judgment of the discrimination and defamation encased in Graham Mooney’s original and derogatory email of 19 October 2011, the retraction to include an apology to all the orginal recipients and this time to directly include the applicant. 2. An undertaking in writing to the applicant by both the current management of ASSI.PJ under whose name aegis Graham Mooney at the time acted and by Graham Mooney personally to cease and desist and not to make further discriminatory, defamatory or degoragtory statements about the applicant. 3. Retractions and apology by the respondents Graham Mooney and ASSI.PJ Ltd to be published in the newspaper Wintoc within 14 days of judgment by QCAT or the local courts, whichever is applicable and the same also be sent to all ASSI community organisations provided by the applicant. [24] I am satisfied that Mr Mooney did publish the email of 19 October 2011 which appears in the material and is part of Exhibit 10. In my view it is capable of being defamatory of the applicant and it is no doubt capable of being offensive. [25] It is not however my function to determine whether or not the statements were defamatory of the applicant or whether they were offensive. That is not within the jurisdiction of the Tribunal. They could however be described in general terms as being a description of or an attack on the conduct of the applicant. -- 5 of 8 -- 6 [26] Mr Mooney swore a statutory declaration which became Exhibit 1. He describes himself as an aboriginal elder, mentor, cultural and spiritual advisor. He says that he has worked in 37 years in aboriginal education in the State of NSW. [27] In the statutory declaration he gives his account of the history leading up to the publication of the email on 19 October 2011. It is apparent from his account that when he thought the complainant appeared at the venue dressed in a grass skirt and the wind blew up the grass skirt to silhouette her nakedness in front of everyone, he was concerned. [28] The anti-discrimination purpose of the Act is set out in Part 1 of Chapter 2 of the Act. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. That purpose is to be achieved by prohibiting discrimination that is on a ground set out in part 2 and of a type set out in part 3 and in an area of activity set out in part 4 of the Act unless an exemption set out in out 4 or 5 of the Act applies; and allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and using the agencies and procedures established under chapter 7 to deal with the complaint. [29] Part 2 of the Act by s 7 relevantly prohibits discrimination on the basis of age or race: 7 Discrimination on the basis of certain attributes prohibited The Act prohibits discrimination on the basis of the following attributes— (a) sex; (b) relationship status; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; (h) impairment; (i) religious belief or religious activity; (j) political belief or activity; (k) trade union activity; (l) lawful sexual activity; (m) gender identity; (n) sexuality; (o) family responsibilities; (p) association with, or relation to, a person identified on the basis of any of the above attributes. [30] Part 3 of the Act by s 9 prohibits direct and indirect discrimination: 9 Discrimination of certain types prohibited The Act prohibits the following types of discrimination— -- 6 of 8 -- 7 (a) direct discrimination; (b) indirect discrimination. [31] Relevantly, direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably than another person without the attribute (s 10). [32] Section 10 reads as follows: 10 Meaning of direct discrimination (1) 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. Example— R refuses to rent a flat to C because— • C is English and R doesn’t like English people • C’s friend, B, is English and R doesn’t like English people • R believes that English people are unreliable tenants. In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. Example— R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C. (4) If there are 2 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. (5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant. [33] Relevantly, indirect discrimination on the basis of an attribute happens if a person imposes a term with which a person with an attribute cannot comply and which a higher proportion of people without the attribute are able to comply and that is not unreasonable (s11). [34] Discrimination on the basis of an attribute is defined in s 8, to include direct and indirect discrimination on the basis of a characteristic that a person with any of the attributes generally has; or a characteristic that is -- 7 of 8 -- 8 often imputed to a person with any of the attributes; or an attribute that a person is presumed to have, or to have had at any time by the person discriminating; or an attribute that a person had, even if the person did not have at the time of the discrimination. [35] For there to be a prohibited discrimination on the basis of attributes of age or race under the Act there must be a direct or indirect discrimination. [36] The Anti-Discrimination Commissioner accepted the complaint by the applicant under s 141 of the Anti-Discrimination Act 1991 (Qld). It did so on the basis that at least one allegation contained in the complaint dated 1 October 2012 is about conduct which may be a breach of the Act (s 136). Subsequently a referral request under s 165 was made and received on 21 August 2013. [37] The term ‘discriminate’ appears in the dictionary to the Act as ‘means discriminate whether by direct discrimination or indirect discrimination.’ Direct discrimination has the meaning given by s 10 and discrimination on the basis of an attribute has the meaning given by s 8. [38] The word ‘discrimination’ is defined in the Oxford Dictionary as 1. Unfavourable treatment based on prejudice, especially or regarding race, religion, gender, age, sexual preference. 2. Good taste or judgment in artistic matters. 3. The power of discriminating or observing differences. 4. A distinction made with the mind or inaction. [39] In my view the publication of the offending email did not amount to treating the applicant with an attribute less favourably that a person without the attribute. The publication is not of that character. It is merely a publication which in my view is expressing a view about the applicant or her conduct. It does not seek to or treat the applicant less favourable than anyone else on the basis of an attribute. [40] The publication does not impose any term with which the applicant could not comply. [41] There is no indirect or direct discrimination on any prohibited basis. [42] The publication may have been actionable on another basis but it does not amount to a breach of the Anti-Discrimination legislation. [43] The application is dismissed. -- 8 of 8 --