Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
Casenote by Melanie Little
Port Augusta is a city of 18,000 people in the mid north of South Australia. Aboriginal people comprise approximately one quarter of its population, including those living at the Davenport Community 4 kilometres from Port Augusta. There are also frequent Aboriginal visitors to Port Augusta from the Pitjanjatjara Lands, the West Coast of South Australia, the Northern Territory and Western Australia.
Within the city there are numerous public hotels and licensed clubs. There are state sanctioned "dry areas" in the city, which make it a criminal offence under the Regulations of the Liquor Licencing Act to consume or possess alcohol in the designated areas.
It is no longer an offence in South Australia to be drunk in a public place, however there are broad powers under the Public Intoxication Act to detain a person until they are deemed sober. A sobering up centre has recently been opened in Port Augusta, although many people still find themselves waking up in the police cells.
Until early August 1989 the Aboriginal Community was not made to feel welcome in the hotels and clubs of Port Augusta. This is not to suggest that no Aboriginal people visited the hotels or clubs, but generally patrons were non-Aboriginal and they did not reflect the demographics of Port Augusta. With the "dry areas" regulations in place, Aboriginal people were banned from consuming alcohol in many public areas. They were also in effect precluded from public hotels and clubs. At times there were allegations of blatant discrimination but largely it was subtle discrimination which is difficult to prove. Aboriginal people were welcome to purchase alcohol from the bottle departments of the hotels, which had to be consumed on private property or out of the township.
Two events occurred during late July/early August 1989 which led to Aboriginal people returning to the Commonwealth Hotel, Port Augusta. First, the Equal Opportunity Tribunal decided in favour of four complainants who had alleged refusal of service in the Hotel in December 1987 on the basis of race. Secondly, the owners of the Hotel, who had been the respondents before the Equal Opportunity Tribunal, sold their business to new owners who publicly stated that they welcomed Aboriginal people to the Hotel.
The Equal Opportunity Act 1984 (the "Act") makes unlawful, inter alia, discrimination on the grounds of race in areas of employment, superannuation, accommodation, associations, education, land disposition and the provision of goods and services. S51 of the Act sets out criteria to establish discrimination on the basis of race. The Act established the Equal Opportunity Tribunal, a body comprising three members who preside over matters referred to it by the Commissioner for Equal Opportunity. Complaints to the Commissioner alleging racial discrimination must be lodged in writing. Complaint are investigated by a member of the Commissioner's staff. A process of conciliation is undertaken when a basis for complaint is found. If no settlement can be reached by the process of conciliation, the matter is referred to the Equal Opportunity Tribunal.
In the matter of complaints by S Holmes, R Day, E Starri & J Tregenza against R Donhardt, Hetherick Pty Ltd & Rodney Wilmshurst
Equal Opportunity Tribunal South Australia
before deputy presiding officer McEvoy and members Rennoldson & Meredith
20 July 1989
Equal Opportunity Act 1984 - allegation of refusal of service in hotel on the ground of race - allegation found proved - compensation ordered
In December 1987 five Ceduna people attending a Supreme Court trial in Port Augusta lodged complaints which resulted in the first case of racial discrimination heard by the Equal Opportunity Tribunal in South Australia. (One complainant did not proceed with his complaint).
An Aboriginal Legal Rights Movement solicitor, an interpreter in the Pitjantjatjara language and two witnesses in a Supreme Court trial pursued their complaints against the management and corporate licensee of the Commonwealth Hotel in Port Augusta. On the 20th July 1989 the Equal Opportunity Tribunal judgement was handed down in their favour. The respondents unsuccessfully appealed to the Supreme Court of South Australia. (Donhardt and Hetherick Pty Ltd v- Holmes, Day, Starri and Tregenza, South Australian Supreme Court Millhouse J 31/10/89 Judgement No. 1890.)
The complainants were Sharon Holmes, John Tregenza, Ernie Starri and Robert Day. It was alleged that the three males went into the public bar of the Commonwealth Hotel and ordered three beers. The barmaid stated to the men that the Hotel did not serve Aboriginal people and refused service. After being contacted by the three males, Sharon Holmes, a solicitor in the Ceduna office of the Aboriginal Legal Rights Movement, entered the Hotel with Mr Starri and requested beers for herself and her Aboriginal friends. The other two males waited by the door of the Hotel. The same barmaid again refused service. Ms Holmes requested the manager and the matter was taken up with him. Service was still refused. The group left the Hotel without being served, and completed Equal Opportunity complaint forms that afternoon.
In their evidence before the Tribunal all complainants deposed to these blatant refusals of service. They stated that they were left in no doubt as to the basis of the refusal of service race.
In South Australia there are accepted grounds for refusing service in public hotels, intoxication, behaviour and dress. The respondents did not deny refusal of service, they sought to justify their refusal on the basis of dress. During investigation of the complaints the barmaid alleged that Robert Day had no shoes on when he entered the hotel, thereby justifying the refusal of service. The complainants denied this allegation. It was conceded that during the Supreme Court hearing Robert Day had worn no shoes, as was his preference. However before going into the hotel he had obtained a pair of thongs and had placed them on his feet. This was done with the knowledge that bare feet were unacceptable in front bars of hotels. The Tribunal found that Robert Day had thongs on his feet, preferring the evidence of the complainants on this point. Had the respondent's view of the facts been preferred on this point, two matters would have followed requiring explanation by the respondents. First why had all the complainants been refused service on the basis of the dress of one complainant. Secondly, why had Robert Day not been given an opportunity to improve his dress standards. It was the evidence of the respondents that they always gave their patrons such an opportunity. These points assisted the Tribunal in coming to the conclusion that the refusals were based upon race.
The Tribunal's decided that all complainants had been refused service in contravention of the Act. The three males were refused service on the basis of their race. Ms Holmes was found to have been refused service because of her association with the other complainants, who were refused service because of their race (the definition section of the Act includes this notion of association).
The Tribunal refused to make a finding that the hotel had a policy of discriminating against Aboriginal people at that time. The complainants had called evidence from a number of people who had experienced or witnessed similar incidents at the Hotel at approximately the same time as the complainant's incident occurred. This evidence was objected to by the respondents on the grounds that it was similar fact evidence and excluded by the rules of evidence.
The complainants argued that this evidence could more properly be called rebuttal evidence, rebutting the contention that "this sort of thing had not happened before and therefore would not have happened" and that there was no policy directive to staff relating to service of Aboriginal people. The evidence was allowed, however the Tribunal stated that it took no account of any of this evidence in making their findings of fact. Further, they found it unnecessary to find whether or not there was a policy of refusal at the hotel.
Under the Act there is provision for an employer to be vicariously liable for the actions of an employee (section 91). That section was used to find the corporate licensee liable for the acts of the barmaid. The manager on duty was also found personally liable.
The Tribunal ordered that apologies be published in the local and statewide newspapers. Further the Tribunal ordered payments of compensation to the three male complainants. Mr Day was found to have been most profoundly affected by the refusal, humiliated and ashamed by the incident and was awarded $5000. Mr Tregenza, but for his relationship to Mr Day, would have received an award similar to that of Mr Starri's ($2500). However, Mr Tregenza gave evidence that he had a special ceremonial relationship to Mr Day, that of "maratju", and he was also awarded $5000. Ms Holmes was not found to have been so affected as to justify an award of compensation.
The respondents appealed to the Supreme Court against this decision on points relating to quantum and the findings of fact. This appeal was heard by Justice Millhouse and was dismissed on the 31st October, 1989. After dismissing the points relating to the findings of fact, the, Judge raised the issue of compensation. He held that the damages under the Act are "entirely at large", and he refused to interfere with the awards made. Accordingly, the judgement of the Tribunal remains a precedent for cases of racial discrimination.
Counsel for the first complainant:
Mr P Cuthbertson
Counsel for the 2nd, 3rd, and 4th complainants:
Ms M Shaw
Counsel for the respondents:
Mr G Algie
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/35.html