Rowe, Gerard --- "Maynard v Neilson: Goods and Services Discrimination against Aboriginal People" [1988] AboriginalLawB 61; (1988) 1(35) Aboriginal Law Bulletin 12

• Maynard V Neilson: Goods And Services Discrimination Against Aboriginal People
• Harmonious Contact With, And Provision Of Service To Other Aboriginal People
• Dress Standards

---

Maynard v Neilson: Goods and Services Discrimination against Aboriginal People

Casenote by Gerard C. Rowe

A recent Federal Court decision highlights possible continuing problems for Aboriginal people in obtaining goods and services on a non-discriminatory basis. Earlier cases under anti-discrimination legislation addressed problems of this kind[1], often illustrated by refusals of service in hotels. A recent refusal to supply beers allegedly breached the Racial Discrimination Act 1975 (Cth.)[Rb(Cth)] s13. The Human Rights and Equal Opportunity Commission (Einfield J) held this to have been so[2]; Federal Court in Maynard v Neilson reversed.[3]

Express or overt discrimination was not claimed. The question was, what could be inferred from the fact of refusal and from certain surrounding circumstances. Under a now classic inferential model of showing the nexus between challenged behaviour and a prescribed discriminatory criterion[4], if a person is a member of a racial minority, seeks the provision of a service, and is denied the service while other persons receive it, there is a prima facie case of unlawful racial discrimination. An evidentiary burden is then said to pass to the respondent to show that the challenged behaviour was based on a lawful criterion.

The respondent here argued that he relied on the lawful criterion of dress standards. The Court noted that the complainant and his companions had "dressed especially for the occassion [of a farewell dinner]" (p12). Nevertheless, it had "no doubt that a football jumper [worn by one of the complainant's companions] would have been regarded as unacceptable in the lounge bar on a Saturday evening, regardless of the race or identity of the wearer." The confused evidence suggested that the refusal had been based only on this person's dress, but had been (for the reason which the court accepted (p18), but which the Commission had rejected as untenable[5]) extended to the group he was with, including the complainant.

The Court came to the conclusion of fact different from that of the Commission "predominantly by reason of the new evidence adduced by the respondent"(p7). This evidence involved:

1 that the respondent had "over a number of years and in a variety of situations... had harmonious contact with Aboriginals and other dark-skinned people" (p15);

2 "That people of obviously Aboriginal appearance [had] been served in the hotel - including the lounge bar - on other occasions" (p15)[6];

3 "The rigourness (sic ) of the enforcement ... of the hotel's dress standards ... irrespective of race" (p16) and the "general practices of [the respondent] to refuse service to all members of the party which contained a person whose dress was found unacceptable (p18)[7]

Harmonious Contact with, and Provision of Service to other Aboriginal People

The Court saw neither of these facts as conclusive (ppl5-16) and gave them little more than passing mention, but, as they seemed to have influenced the decision, important questions arise. Such evidence has been admitted in other cases both in Australia[8] and in the United Kingdom[9], but the most such evidence can do is go to the respondent's credibility. Alone it constitutes no refutation of the particular allegation.[10]

At worst, if, for example, it could be demonstrated that Aboriginal people whom the respondent had served in the hotel had only ever, or mostly, been Aboriginal people conforming to some (conscious or unconscious) standard of assimilation to non-Aboriginal expectations or understandings, reliance on such evidence would be quite wrong.

Anti-discrimination laws in the Australian states, unlike the RD(Cth), expressly include reliance on appurtenant or imputed characteristics of racial groups in their definition of discrimination in order to catch behaviour which is based on surrogates of race, or on stereotypes associated with particular racial groups.[11] The fact that RD(Cth) is not so expressed does not mean that it should not apply similarly. If the Court saw merit in the claims mentioned, it needed to examine them further in this light.

Dress Standards

The Court posited that it "may be accepted that, within reach, it is the prerogative of any publican to determine what standards of dress are to be regarded as acceptable in his or her hotel" (p19). This issue also deserved more scrutiny.[12] One must consider; whether a uniform dress standard was applied uniformly; and, if so, whether a possible disparate impact of such an apparently neutral requirement on members of different racial groups might nonetheless constitute unlawful discrimination.

The hotel's standard, "strictly neat casual", was, on its terms, uniform, not one rule expressed for Aboriginal people and another for non-Aboriginal people. As to its application, the Court observed that this standard "was so uncertain as to admit only of a highly subjective interpretation" (p24). This raises the possibility of covert racism in applying the rule. Without expressly addressing the question, the Court seemed to accept that there had been uniform application (see example p25).

The concept of unlawful discrimination by way of disparate impact ("indirect discrimination") has long been accepted in US courts[13] and the European Court of Justice[14]. It is express in Australian state anti-discrimination laws[15]. Although not express in the RD(Cth), the legislation should be interpreted so as to encompass this principle.[16] Essentially, the principle is that, where a facially neutral rule, requirement, condition, practice or procedure is capable of being obeyed, satisfied, adhered to, or followed by the members of different groups in different proportions, then the rule (etc) must be justified in order to avoid a finding of unlawful discrimination.

A dress rule may well have such a disparate impact as between racial or ethnic groups[17]. If it could be shown that, for whatever reason (be it socio-cultural, economic or educational), particular standards of dress can be complied with by a lower proportion of Aboriginal people than that of non-Aboriginal people, possible disparate impact discrimination is raised, particularly when one considers that dress standards are especially likely to embody ethno-cultural preconceptions.

The dress rule would need, then, justification. The Court, unaware of disparate impact analysis, did not address this question explicitly. It did refer to an adoption of the dress rules to improve a previously bad reputation for the hotel. An explicit consideration, however, of the justification of a neutral rule with a discriinatory impact requires more systematic examination.

The existence of the problem which the rule allegedly corrects should be firmly established; the likelihood that the rule will have an appreciable effect in solving that problem should be demonstrated; the lack of non-discriminatory alternative measures to solve the problem should be demonstrated; and, if the unavoidable necessity of the rule for the respondent's purposes is clear, the alleged harm to the respondent of not adopting the rule must still be weighed against the harm done to the complainant, particularly in the light of the legislative policy against racial discrimination, before concluding that there is no unlawful discrimination. The Court's passing reference to the reasons for adopting the dress rules does not meet these standards of examination.

Gerard Rowe is a Senior Lecturer in Law at the University of New South Wales.

---

[1] Miller's Hotel (1974 )7 S.A.S.R. 35; Port Augusta Hotel [1971] S.A.S.R. 139; Coe v Bobilak (1984) EOC 92-026 (OET, NSW); Mullet v Kakeda P/L (1986) EOC 92-172 (EOB, Vic).

[2] (1987) EOC 92-199, p76, 903.

[3] TG 11 of 1987, 27 May 1988, unreported; digested at (1988) EOC 92-226. [references are to pages the unreported judgement.]

[4] McDonnell Douglas v Green [1973] USSC 103; 411 US 792 (1973); of Khanna v Ministry of Defence [1981] ICR 653, at 659 (EAT(UK)); see also Mooney v Flannery (ADB(NSW)) No 2 of 1979, 3 December 1979, unreported).

[5] (1987) EOC 92-199, pp79, 909-79,910

[6] This had also been addressed and accepted by the Commission; (1987) EOC 92-199, pp79, 908.

[7] The Commission had considered dress rules, but it seemed that the rigour of the respondent's application of them, and background to their adoption had not been considered.

[8] see the essay cases cited in n.1 supra.

[9] see L Lustgarten, Legal Control of Racial Discrimation (1980) 207 at n17.

[10] Consider the view taken of the analogously similar "bottom line" defence which has been rejected by the US Supreme Court in Connecticut v Teal [1982] USSC 128; 457 US 440 (1982).

[11] see also S Cutler, A Trait-base Approach to National Origin Claims Under Title VII, (1985) 94 Yale L J 1164-1181.

[12] The Commission had also quite uncritically accepted such a principle but disbelieved that this had been the basis of the respondents' refusing service ((1987) EOC 92-199, pp79, 910).

[13] see Griggs v Duke Power [1971] USSC 46; 401 US 424 (Ct 1971).

[14] see 152/73 Sotgiu v Deutsche Bundespost [1974] 1 ECR 153; 96/80 Jenkins v Kingsgate [1981] 1 ECR 911.

[15] EG Anti-Discrimination Act 1977 (NSW) ss7(2); Equal Opportunity 1984 (Vic) s17(5); Equal Opportunity Act 1984 (SA) s51(b); Equal Opportunity Act 1984 (WA) s36(2); Sex Discrimination Act 1984 (Cth) ss5(2), 7(2).

[16] RD(Cth) is based on the International Convention for the Elimination of All Forms of Racial Discrimination; International legal principles ought then to inform its interpretation; disparate impact analysis is a recognised part of international law; see B Dundberg-Wellman, Discrimination on Grounds of Nationality (1977) 108.

[17] see, eg, Mandla v Lee [1982] UKHL 7; [1983] 2 AC 548 (House of Lords).