McKenzie, John --- "News: 'I'd Sooner Jail than Pay'- Hotel Licensee" [1983] AboriginalLawB 18; (1983) 1(8) Aboriginal Law Bulletin 6

• News-“I’d Sooner Jail Than Pay” – Hotel Licensee
• The Facts
• The Test Applied
• The Damages

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News - “I’d Sooner Jail than Pay” – Hotel Licensee

by John McKenzie

This headline printed in the Newcastle Herald on the 9 July 1983 quotes Mr Robert Bobilak, licensee of the Family Hotel in Newcastle. The reason for his outburst was that the Equal Opportunity Tribunal had found on the day before that two Aboriginal women had been refused service in his hotel on 26 June, 1981, because of their race. The two women were each awarded $750 compensation to be paid by Mr Bobilak.

The two complainants, Ms Linda Coe and Ms Bernadette Duncan had lodged their complaint with the NSW Anti-Discrimination Board which investigated the matter and then referred it to the Tribunal. Evidence was heard before the Tribunal prior to the High Court case of Viskauskas and another v Niland which was decided on the 19 May 1983. The Tribunal's decision was reserved until the outcome of the High Court case was known. The effect of that decision in the High Court was to effectively invalidate the race provisions of the NSW anti-discrimination legislation. However, within a week of the High Court decision the federal government legislated to save the NSW race provisions. The Equal Opportunity Tribunal took the view that any defect in respect of jurisdiction arising from the decision in the Viskauskas' case had been cured by the enactment by the federal government of the Racial Discrimination (Amendment) Act (1983). The main thrust of the amending legislation is that all State laws which further the principles and objectives of the federal Racial Discrimination Act are to be held valid and co-existing with the federal legislation.

The Facts

This was the first decision by the Tribunal under the NSW legislation relating to a complaint of racial discrimination. It had been alleged by the complainants that they had attended the Family Hotel in Hunter Street, Newcastle at about 9.00 pm on Saturday, 26 June 1981 together with Katherine Wotherspoon, a non-Aboriginal person. In her evidence, Ms Duncan had said that once she had ordered the drinks for herself and her companions, a man came over to them and asked if they were Aboriginals. When she answered that they were, he said to them "You won't be served". When asked for a reason this man had said "You won't be served because we had trouble with Aboriginals here before". Ms Coe said in her evidence that the reason she was given for not being served was "because we were black". Ms Wotherspoon said in her evidence that after the man had asked whether her two companions were Aboriginals, he had said "we don't serve you in here, we don't serve Aboriginals". When asked where the publican was to be found, the man had said "the publican is not here, and he said anyway, we're not allowed to serve blacks in here". The Tribunal accepted this evidence. It concluded that there was clear proof of direct discrimination. However, the Tribunal went on to consider the evidence of the barmanager, Mr Kidd, to decide whether the respondent had given a lawful reason for the refusal of service.

He gave evidence about the incident and said there was a fourth person present. He claimed that the fourth person was a non-Aboriginal woman who had been at the Hotel on the previous night when there had been some trouble. He gave evidence to the effect that the reason service was refused was that this fourth person had been a party to the trouble on the previous night and had been barred from the hotel on that occasion. The Tribunal rejected Mr Kidd's evidence that there had been a fourth member of the party. In its decision it said that, with the experience of the previous night weighing heavily on his mind, that the barmanager had arbitrarily concluded that the previously unknown Aboriginal complainants requesting service at this hotel were likely to behave in the same manner as had Aboriginal persons present the night before. Kidd said in his evidence that he took it that the complainants and their friend were the same crowd as had been causing trouble on the previous evening. He said that he refused service on that basis. Evidence had already been given by the complainants that they had not been at the hotel on the previous night nor on any previous occasion. The Tribunal held that even were it to accept the evidence of Mr Kidd that he had refused service for that reason, it showed that the complainants were treated less favourably by the licensee's staff than non-Aboriginal persons would have been treated in the same circumstances.

The Test Applied

The Tribunal asked itself the following question: would service have been refused had the group comprised three or even four Caucasians? The Tribunal was of the view that service would not have been refused in such a circumstance. The Tribunal's decision continued "the unjustified assumption of the barmanager that Aboriginal persons not known to him may behave in a disorderly fashion has contributed to his decision to refuse service. Clearly the complainants were discriminated against on the ground of their race".

The Damages

The Tribunal accepted the complainants' evidence that upon being refused service they had felt insulted and were upset and embarrassed. They had been deprived of the pleasure of relaxing at a night-out which was a rare event at the time as both complainants were breast-feeding babies, which restricted their social life. Accordingly, the Tribunal decided that each complainant should be compensated for these factors by way of damages in the sum of $750 each.

Coincidentally the decision of the Tribunal was handed down on National Aborigines Day and the complainant who attended for the decision was able to proceed to march in the annual march held to celebrate that day and to demand proper land rights for the Aboriginal people in NSW.

This case and its decision is the first time in Australia that a Tribunal has awarded compensation to Aborigines for racial discrimination. The President of the Awabakal Aboriginal Co-operative and director of the Aboriginal Legal Service in Newcastle, Mr Kevin Anderson said he hoped the decision would result in more Aborigines coming forward to complain of racial discrimination. Mr Bobilak's statement to the press and his stated intention to appeal against the decision demonstrates a raw nerve has been struck by the successful prosecution of the complaint and the decision of the Tribunal to award compensation. To date, no appeal against the Tribunal's decision has been lodged and the process of enforcing the judgement is now underway.