RA v NC[2018] QCAT 94

REASONS FOR DECISION

1. [1]
   Ms RA made a complaint to the Anti-Discrimination Commission Queensland (‘the Commission’) which was initiated by an email from her to the Commission on 2 July 2016, in relation to an incident which occurred at Southport in Queensland on 1 July 2016.
2. [2]
   The complaint related to verbal comments which Ms RA alleged Mr NC made to her, in a lift lobby and in a lift at an apartment building, which constituted religious vilification.
3. [3]
   The complaint was referred to the Tribunal on 12 January 2017. The matter was first set for hearing before me on 18 September 2017, but was unable to proceed on that day as Ms RA did not appear at the scheduled time due to some apparent misunderstanding as to the timing requirements. Mr NC on that occasion was on telephone from Paris, and the whereabouts of Ms  RA were uncertain.
4. [4]
   The matter was rescheduled for hearing on 25 January 2018. On that day Ms RA took part by videoconference from Saudi Arabia (with an Arabic interpreter attending the Tribunal premises in Brisbane), and Mr NC took part by videoconference from New Caledonia.
5. [5]
   In her submissions Ms RA said she was seeking as an outcome an apology and payment of four thousand dollars (which she said was an amount she had been advised by one of the ‘anti-discrimination staff’ is the usual compensation for a matter like this one).^[1]

The evidence of Ms RA

6. [6]
   Ms RA said that she was a student at Griffith University in Brisbane, undertaking Ph.D. studies at the time of the incident.
7. [7]
   In her email to the Commission the day after the event, she described the incident as follows:

In the 1 July 2016 at 12:00pm at the elevator for the Southport Central residential tower 3, I was with 2 of my kids (8 years and 5 years old) waiting the elevator.

There was a man coming from the mail room to the elevator where I was standing. He was holding a 2 months old girl in his arm, I said to him Hi, He said (Mohamada Kenser) its an Arabic sentence means in English prophet Mohamed peace be upon him is pig!!! in front of my kids. He knew from my Hijab that I am Muslim. I said to him that is so kind of you, u must be a well educated man. He said it again and again, then said F**k You. I followed him to get his flat number and said I will contact the anti discrimination Commission and he said again F**k you and repeated (Mohamad Kenser). I got his flat number (withheld) Southport central residential tower 3.

I went straightaway to the towers management to ask for recording the video of him approaching me in front of my kids.

8. [8]
   In her evidence on the hearing she said at the outset that she ‘has a bad memory’ but gave clear evidence as to the events of the day.
9. [9]
   She said that Mr NC was saying a sentence in Arabic (La ilaha illa’llah), adding the words ‘Mohammad  Chanzir’ to her in the foyer and in the lift. She said he also said ‘F**k you’ in the lift.
10. [10]
    She said that Mr NC kept using the F... word, and kept saying the same things.
11. [11]
    She said she was nervous and shaking. She said she replied ‘Thank you. You are a well educated man’, which was a sarcastic response to ask him to stop saying the words.
12. [12]
    She said there was a man of Asian appearance in the lift also, but he did not take part in any interaction.
13. [13]
    She said that she followed Mr NC out of the lift when he got out so that she could see his apartment number for the purposes of making a complaint.
14. [14]
    She said that she was a Muslim, and the words insulted the Prophet, who means everything to her.
15. [15]
    She said despite having her face covered, she has ‘smiling eyes’ and she was really upset to have this hatred shown towards her.

The evidence of Mr NC

16. [16]
    Mr NC said that he has a wife, children and grandchildren, and that this matter has caused him great damage.
17. [17]
    He said that the only time he spoke to Ms RA was to say ‘just go away’ when she followed him to his apartment after he got out of the lift. He denied saying any of the words alleged by Ms RA.
18. [18]
    He alleged in his statement that Ms RA was being hostile towards him, and says she acted in the lift as follows:^[2]

During that same time, the person wearing garment over their face is being hostile, telling me that I have bad manners and she has nasty remarks to make about my three weeks old granddaughter. I am not capable of rendering her exact words. It is clear on the video I am trying my best to ignore her hostility.

19. [19]
    In his statement Mr NC said that he does not speak Arabic, and ‘knows nothing about Arabian culture’.^[3] He summarised his view of the matter as follows:^[4]

I have viewed the two videos, a total of 90 seconds, and fail to see in them what could possibly justify either this year-long relentless harassment or the compensation claim produced by Ms. RA. On the other hand she quietly followed me out of the lift, all the way to my apartment door wearing face covering garment, while I was nursing my 3 weeks old granddaughter. She then made threats. I find that behaviour very bizarre, aggressive and bullying.

She then makes monetary claims through the Anti-Discrimination Commission and then through the Tribunal on the basis of a string of demonstrable lies and changing allegations.

The video evidence

20. [20]
    Two video recordings of closed circuit television footage were obtained by the Commission from the apartment building management. They cover the lift lobby on the ground floor, and then inside the lift. The recordings were played at the hearing, and Ms RA and Mr NC each had an opportunity to view them and comment on them.
21. [21]
    The recordings are video only, and do not have any audio content. They are date and time stamped. The date is 1 July 2016 on each video.
22. [22]
    The first video is of the ground floor lobby. It runs from 11:59:20.805 am to 12:00:03.611 pm.
23. [23]
    The first video shows Mr NC holding a baby and rocking as he waits for a lift. Ms RA approaches the lift with two children walking with her. She is wearing a full face covering. Another man also comes up to the lift, who appears to be of Asian appearance, and is holding a large green rectangular box which looks like a “The Cheesecake Shop” box.
24. [24]
    Mr NC has his back to the camera and is facing Ms RA. It is not possible to tell from the video if he is saying anything to her or not.
25. [25]
    The second video is taken inside the lift. It runs from 12:00:04.022 pm to 12:00:51.301 pm.
26. [26]
    In the second video, Mr NC enters first and presses a floor button which illuminates, and goes to the back of the lift, facing forwards. Ms RA and her children then enter the lift, and stand in front of Mr NC, but stand side on to him. Then the man of Asian appearance enters the lift, selects a different floor button and goes to the back of the lift and stands in front of and to the side of Mr NC. Ms RA then reaches across and presses a third lift button.
27. [27]
    At 12.00.42.901 Mr NC can be seen leaning forward and towards Ms RA, just before the lift reaches his floor. The man of Asian appearance remains impassive at that moment, but then moves the box he is holding aside, to let Mr NC exit the lift.
28. [28]
    Mr NC leaves the lift first, and Ms RA follows him out on the same floor. The man of Asian appearance remains in the lift.

Discussion

29. [29]
    Mr NC says that he did not say anything to Ms RA at any time in the lobby or in the lift.
30. [30]
    Ms RA and Mr NC have contradictory versions of the events as to whether Mr NC said anything to Ms RA or not. They cannot both be correct.
31. [31]
    Ms RA has given various versions, in her complaint and contentions,   and on the hearing, of the words that Mr NC is alleged to have said.
32. [32]
    In her initial complaint to the Commission the only words she describes him saying are the words about the Prophet.
33. [33]
    On the hearing she recalled Mr NC saying a phrase in Arabic (La ilaha illa’llah) preceding the further words which he said. That phrase is known as the ‘Shahada’ and is a profession of faith for Muslims, meaning ‘No-one deserves worship except God’, and is ‘the first pillar of Islam’.^[5]
34. [34]
    Ms RA made a reference to the use of the Shahada (which she spelt as Shaadh) by Mr NC in her further contentions^[6] where she said as follows:

4. He disputes that he knew I am Muslim he did and said Shaadh and at the end he said the words Mohamad Kinser again and again.

35. [35]
    Mr NC says that he does not speak Arabic. He has a French background and appears to move freely between New Caledonia and France. It is a matter of public record that France has large numbers of Arabic speakers. It is not fanciful to imagine that Mr NC may have picked up some Arabic words and phrases, and perhaps insults or provocative words such as the word for pig. It is common knowledge that Muslims regard the pig as an unclean animal. Again, it is not fanciful to imagine that a French person would be aware that to call the Prophet by the name of that animal would be deeply offensive to them. This is only conjecture however.
36. [36]
    There are other observations, which may indicate whether any words were spoken, that are relevant. Ms RA pressed a different lift button to Mr NC when she entered the lift, so she obviously originally intended to exit at a different floor to Mr NC. Why would she then exit at the same floor as Mr NC?
37. [37]
    Ms RA says she that she exited after Mr NC to follow him to his apartment door so that she could find his apartment number and make a complaint about the words he had spoken to her in the lift. That is a plausible explanation for her sudden change of intent as to which floor to exit.
38. [38]
    Mr NC says that his movement towards Ms RA just before he gets out of the lift is because the lift jerked, however none of the other persons in the lift show any movement.
39. [39]
    It appears from the video that the movement by Mr NC towards Ms RA is him leaning over to say something to her. As he is about to leave the lift, it is quite feasible that he could be saying something to her in leaving.
40. [40]
    Whilst Ms RA said that she had a bad memory, and gave different recollections of the actual words spoken, I consider that she was open and forthright in the substance of her evidence. Mr NC, whilst very emphatic, was less open, and I found his evidence to be less plausible and more guarded.
41. [41]
    Having heard the evidence of Ms RA and Mr NC, and having regard to the actions of the parties, I prefer the evidence of Ms RA where it conflicts with that of Mr NC.
42. [42]
    I am satisfied that Mr NC did say something to Ms RA, at least in the lift, and probably also in the lift lobby, which caused her upset, and which caused her to follow him out of the lift to the door of his apartment.
43. [43]
    However, would the act of Mr NC, in using the words such as Ms RA alleges, constitute a breach of the Anti-Discrimination Act 1991 (Qld) (‘the Act’)?
44. [44]
    The Act provides as follows:

124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

1. (1)
   A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

45. [45]
    In this matter, the issue then becomes whether Mr NC did, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, Ms RA or members of her group on the ground of their religion.
46. [46]
    A ‘public act’ is defined in S 4A of the Act as follows:

4A Meaning of public act

1. (1)
   A public act includes –

   1. Any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and
   2. Any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
2. (2)
   Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the public does not know, and could not reasonably be expected to know, the content of the matter.

47. [47]
    The communication by Mr NC, by speaking, would be communication within section 4A of the Act.
48. [48]
    If only Mr NC and Ms RA were in the lift, then the communication could only be described as private. However, there was another person in the lift, and there is no evidence that the words spoken by Mr NC in the close confines of a lift would not have been audible to that other person. The presence of an additional unrelated member of the public would make the communication ‘to the public’.
49. [49]
    Mr NC has therefore performed a ‘public act’ within the meaning of the Act.
50. [50]
    The question then becomes whether the public act of Mr NC did incite hatred towards, serious contempt for, or severe ridicule of, Ms RA or members of her group on the ground of their religion.
51. [51]
    The expressions ‘incite hatred towards, serious contempt for, or severe ridicule of’ have been considered in previous decisions of the Tribunal.
52. [52]
    In PR v Metro Coach (Aust) Pty Ltd and Ors,^[7] a claim of racial vilification was made by a person of Sri-Lankan descent. The act was described by the complainant as follows:^[8]

The big boss Des came to see me and called me out of the office. He found a place where no one was around and threatened me about this and made up other stories. He shouted at me very loudly.

53. [53]
    The Member discussed the meaning of the word ‘incite’ in that case as follows:^[9]

[40]  When considering comparable provisions in New South Wales, the Tribunal held in Harou-Sourdon v TCN Channel 9 Pty Ltd, Wagga Wagga Aboriginal Action Group v Eldridge and Western Aboriginal Legal Service Ltd v Jones & Anor the word ‘incite’ should be given its ordinary dictionary meaning: “to urge on; stimulate or prompt to action”. Therefore Dr Williamson’s conduct on 10 July 2009 must be shown to have urged or prompt others to hate, have serious contempt for, or severely ridiculed the applicant; this cannot be established.

54. [54]
    In Chen v Groom & Lazcas Investments Pty Ltd,^[10] the complainant Ms Chen was a tenant in a complex of residential units. She alleged that a neighbour had racially vilified her, and sought redress from the manager of the complex and the management company. The act that was complained of was as follows:

[4]  Ms Chen asserts that the family were noisy and discourteous. Ms Chen’s evidence is that on the evening of 12 November 2011, Mrs Faragher at Unit 8 verbally attacked her and her family with obscene language and gestures and said ‘We’re English! Of course we are loud’ and ‘Go home you’re not English’.

55. [55]
    The Member discussed the elements of racial vilification and concluded as follows:

[29]  Ms Chen’s evidence does not establish that Mr Groom by any public act incited serious contempt for her on the ground of her race. Her submission is that Mr Groom knew of Mrs Faragher’s alleged racial vilification of her, but did nothing. I consider that some active conduct on the part of Mr Groom would need to be shown. Public act is defined in section 4A of the Act to mean any form of communication to the public or conduct observable by the public. To incite, has been found to mean ‘to urge on; stimulate or prompt to action’. I am unable to find that Mr Groom has engaged in racial vilification of Ms Chen.

56. [56]
    The only other person in the lift lobby, and in the lift, was the man of Asian appearance. His demeanour remains all times detached. He does not show any obvious reaction to any of the interaction between Mr NC and Ms RA. He does not display any distaste or antagonism towards Ms RA, or any particular response to her or to Mr NC at all.
57. [57]
    The identity of the man of Asian appearance has not been determined. It is not known if he understands any of either English, Arabic or French, and whether he understood any of the words that Mr NC may have said.
58. [58]
    There is no evidence that the act of Mr NC was heard by the man of Asian appearance, or incited him to hatred towards, serious contempt for, or severe ridicule, of Ms RA, or of members of her religious group.
59. [59]
    This is therefore not an instance of religious vilification within the provisions of section 124A of the Act.
60. [60]
    Ms RA brought her complaint to the Anti-Discrimination Commission Queensland, which is subject to the provisions of the Queensland Act in relation to religious vilification.
61. [61]
    Her complaint in essence was as to herself, and members of her religious group, being insulted or offended. In those circumstances, she may been better advised to have taken her complaint to the Australian Human Rights Commission, which has jurisdiction subject to the Racial Discrimination Act 1975 (Cth). Her complaint may then have been considered under section 18C of that Act, which provides for complaint about an act which is done in the hearing of people who are in a public place, and which is likely, in all the circumstances, to offend, insult or humiliate or intimidate another person or a group of people because of the race or ethnic origin of the other person.
62. [62]
    Having brought a complaint under the Anti-Discrimination Act 1991 (Qld), Ms RA is now not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 (Cth) alleging that the act or omission is unlawful under a provision of Part IIA of the Commonwealth Act (which includes S 18C)^[11].
63. [63]
    Mr NC has said that the proceedings have caused him great distress. Publication of the identities of the parties is likely to add to that distress, and it is not necessary in the interests of justice to do so. I consider it necessary, to avoid endangering the physical or mental health or safety of a person, to make an order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) prohibiting the publication of the names of the parties to the proceeding, and make such an order.
64. [64]
    The complaint by Ms RA cannot succeed under the Anti-Discrimination Act 1991 (Qld), as the act complained of does not fall within the provisions of that Act as to vilification on the ground of religion, and the referral must be dismissed.