Clarke v Nationwide News Pty Ltd
[2012] FCA 307
FEDERAL COURT OF AUSTRALIA
Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
Citation: Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 Parties: NATALIE CLARKE v NATIONWIDE NEWS PTY LTD TRADING AS THE SUNDAY TIMES File number: WAD 195 of 2010 Judge: BARKER J Date of judgment: 27 March 2012 Catchwords: HUMAN RIGHTS – unlawful discrimination – racial discrimination – contravention of s 18C of the Racial Discrimination Act 1975 (Cth) – reasonably likely in all the circumstances to offend, insult or humiliate – publication – posting of comments on a website – matters of public importance – freedom of speech – reasonable victim standard – objective test – perspective – serious effects – “because of” race – causation – vetting – moderating – gravity – context – apparent relevance – exemptions – reasonably and in good faith – compensation for loss and damage suffered – economic and non‑economic loss – exemplary damages – aggravated damages Legislation: Constitution
Australian Human Rights Commission Act 1986 (Cth) s 3, s 46PH(2), s 46PO, s 46PO(4), s 46PO(4)(b), s 46PO(4)(c), s 46PO(4)(d), s 46PO(4)(e), s 46PO(4)(f)
Racial Discrimination Act 1975 (Cth) s 3(3), s 18B, s 18C, s 18C(1)(a), s 18C(1)(b), s 18D, s 18D(a), s 18D(b), s 18D(c), s 18D(c)(ii), s 18E, Pt IIACases cited: Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105
Byrne v Deane [1937] 1 KB 818
Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261
Elliott v Nanda & Commonwealth [2001] FCA 418; (2001) 111 FCR 240
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92
Fetherston v Peninsula Health [2004] FCA 485
Godfrey v Demon Internet Ltd [2001] QB 201
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243
Jones v Toben [2002] FCA 1150
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615
Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCA 123; (2001) 105 FCR 56
Hughes (formerly De Jager) v Car Buyers Pty Ltd [2004] FMCA 526; (2004) 210 ALR 645
Kaplan v Go Daddy Group Inc [2005] NSWSC 636
McGlade v Lightfoot [2002] FCA 1457; (2002) 124 FCR 106
Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 247 ALR 273
Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; (2007) 164 FCR 475
Spencer v Dowling [1997] 2 VR 127
Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515
Uren v John Fairfax & Sons Pty Limited [1966] HCA 40; (1966) 117 CLR 118
Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93-147Date of hearing: 16 August 2011 Date of last submissions: 21 March 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 352 Counsel for the Applicant: Mr GMG McIntyre SC Solicitor for the Applicant: Aboriginal Legal Service of WA Inc Counsel for the Respondent: Mr TD Blackburn SC Solicitor for the Respondent: Edwards Wallace
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 195 of 2010
BETWEEN: NATALIE CLARKE
ApplicantAND: NATIONWIDE NEWS PTY LTD TRADING AS THE SUNDAY TIMES
Respondent
JUDGE:
BARKER J
DATE OF ORDER:
27 MARCH 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Court will hear from the parties as to the final terms of the orders to be made and on the question of pre‑judgment interest and costs at 9.15am on Wednesday 4 April 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 195 of 2010
BETWEEN: NATALIE CLARKE
ApplicantAND: NATIONWIDE NEWS PTY LTD TRADING AS THE SUNDAY TIMES
Respondent
JUDGE:
BARKER J
DATE:
27 MARCH 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
CLAIM OF RACIAL DISCRIMINATION
This case concerns the publication of readers’ comments on The Sunday Times’ perthnow.com.au website following the report in the newspaper of a motor vehicle accident on the night of Friday 27 June 2008, in which four of the five young male occupants of the vehicle were killed.
The applicant, who is an Aboriginal Australian, is the mother of three of the deceased occupants who, at the time of the accident, were boys aged 15, 11 and 10. Their cousin, who was aged 17 at the time of the accident, was the other deceased occupant. A fifth, teenage boy survived the accident.
The applicant complains that by the publication of a number of the readers’ comments the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) (RD Act) that proscribes offensive behaviour because of race.
The applicant initially filed a complaint about unlawful discrimination because of race with the predecessor of the Australian Human Rights Commission (AHRC), pursuant to the RD Act and what is now called the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). On 20 January 2010, the AHRC terminated the complaint by notice of termination issued under s 46PH(2) of the AHRC Act on the ground that there was no reasonable prospect of the matter being settled by conciliation. The applicant then filed an application alleging unlawful discrimination under s 46PO which now comes before this Court for determination.
In this proceeding, the respondent admits the act or acts of publication alleged by the applicant but denies that any of them contravened the RD Act.
OFFENSIVE BEHAVIOUR BECAUSE OF RACE UNLAWFUL
Section 18C of the RD Act makes unlawful offensive behaviour because of race, colour or national or ethnic origin. Insofar as it is relevant to this proceeding, s 18C provides:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1)It is unlawful for a person to do an act, otherwise than in private, if:
(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2)For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
…
As to the reason for which “the act is done”, to which s 18C(1)(b) refers, s 18B provides that:
18B Reason for doing an act
If:
(a)an act is done for 2 or more reasons; and
(b)one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
The operation of s 18B still leaves for determination, in any case where breach of s 18C is alleged, the question whether a reason for the doing of an act complained of was the race, colour or national or ethnic origin of a person.
Section 18D of the RD Act provides exemptions to s 18C, in the following terms:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a)in the performance, exhibition or distribution of an artistic work; or
(b)in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c)in making or publishing:
(i)a fair and accurate report of any event or matter of public interest; or
(ii)a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
ISSUES
The issues in this proceeding are:
(1)whether the respondent, by any of the particular acts of publication complained of by the applicant, contravened s 18C of the RD Act, and in particular whether any of those publications:
(a)was reasonably likely, in all the circumstances, to offend, insult, or humiliate the applicant; and (if so)
(b)was done because of the race of the applicant, namely, the Aboriginal race.
(2)whether, in the case of any apparent contravention of s 18C, the respondent’s act is exempt under s 18D.
The respondent also challenges the constitutional validity of s 18C of the RD Act, but formally “reserves” its position on that issue. As a result, the Court assumes the constitutional validity of s 18C in this proceeding.
THE SUNDAY TIMES ARTICLE
The article in relation to which the respondent invited readers’ comments was published in The Sunday Times (which circulates throughout Western Australia) on Sunday 29 June 2008. It reported the motor vehicle accident of the Friday night 27 June 2008 on the front page under the banner heading, “OUR WASTED YOUTH”, above which in smaller print the following words appeared: “FOUR BOYS – 10, 11, 15, 17. ONE STOLEN CAR. ALL DEAD. THE TRAGEDY THAT HAS DIVIDED WA”. Beneath the banner heading appeared a reference to “PAGE 7”. All these words appeared over a graphic that included a photograph of a badly impacted vehicle and inset photographs of three boys, who were then identified in smaller print at the bottom of the graphic by their names and ages. The three boys were the applicant’s children.
At page 7 the detailed story appeared under the heading, “Tragedy of 4 young lives thrown away”. Above the page 7 story, at the top of the page, the respondent published four comments, each apparently having been received on the newspaper’s website, together with an invitation to readers of the newspaper to “Tell us your views” by sending them to the website.
The four comments published at the top of page 7 ranged from the reproving to the sympathetic. In the order in which they appeared across the page, they were as follows:
•No sympathy here … if you’ve ever been broken into, or had your car stolen, then these kids got what was coming to them. To all you do‑gooders out there saying, ‘Oh, they were just kids’, how would you feel if they crashed into your house and killed a family member? I bet you would change sides pretty quick.
•How heartless has the public become? They were naughty for stealing but to pay with their lives is tragic. Children naturally get up to mischief. Deepest sympathy to their families. All children are good at heart.
•To some of you heartless bastards out there … the mother of these kids is wonderful. Those boys were very well looked after. Was she drunk? NO. Is she a druggie? NO. She is a single mum who does nothing more than worry sick for my nephews. THEY WERE BLOODY CHILDREN. Such beautiful boys and talented footballers.
•Four dead, all breaking the law at the time. Yes, it is a big price to pay. And as for the people who actually owned the car, what do they drive NOW.
In the page 7 story in the third paragraph it was noted that:
Hundreds of readers posted comments on perthnow.com.au following the deaths. The crash divided opinions, with many people claiming the four boys deserved little sympathy because they were in a stolen car. Others took a more compassionate view.
This was followed by:
The boys’ teachers and loved ones said yesterday they were not bad boys and the waste of their promising lives needed to be a jarring wake‑up call.
The applicant was then mentioned in the next paragraph and how she had “choked back tears as she told The Sunday Times how much she would miss her ‘little boys’”.
FURTHER PUBLICATIONS AND READERS’ COMMENTS
On 3 July 2008, an article was published online on the perthnow.com.au website headed “Pinjarra crash mum too distressed to speak”. This online article reported that the applicant was due to make a statement outside the Mandurah Police Station but cancelled at the last minute as she was too distraught to speak and not physically able to stand. Following some further reportage concerning what the applicant had said about her sons, the article went on to state a number of other things, including:
·“Earlier this week Pinjarra police confirmed that a stolen car was bogged and torched on Morrell Rd in Pinjarra a short distance from where the boys stole a Holden Commodore involved in the death crash”.
·“Sergeant Darrell Phillips‑Jones said the police were investigating whether the boys were responsible for both thefts. ‘They [the boys] would be people of interest to us’, he said”.
·“The deaths have sparked a massive community debate about parental control but Senior Sergeant Jeff Beaman said now was not the right time to point the finger of blame”.
·“Supporters of the family rallied yesterday to support the grief-stricken mother while police spoke of the ongoing problem of young Aboriginal children in the area being attracted to crime.”
·“Peel Supt Dave Parkinson said that generally the problem was due to lack of proper parental supervision”.
·“Poll: who’s to blame for out of control kids”.
On 5 July 2008, a further article was published online headed “Heartbreak for crash victim’s girl”. This article reported how Kayla Watkins, the former girlfriend of the deceased 17 year old, Quinton Humes, had been emotionally affected by his death. Between 5 July 2008 and 14 October 2008 the respondent posted 55 comments relating to this article. Some of the 55 comments, or portions of them are referred to by the applicant in this proceeding.
On 6 July 2008, a further article was published in The Sunday Times at pages 66 and 67 in which a selection of comments in “Support” and recording “Blame” were republished from the perthnow website, together with a contribution from Dennis Eggington, CEO of the Aboriginal Legal Service (WA), under the heading “Young need space”, and a contribution headed “A good family” from Sen‑Sgt Jeff Beaman, Officer in Charge of Mandurah Police. Sen-Sgt Beaman was at pains to point out that young people from both Aboriginal families and affluent white families offend and provide parental challenges.
Also on 6 July 2008, the article concerning the former girlfriend of Quinton Humes that was published online on 5 July 2008 was published in the newspaper.
On 11 July 2008, another article was published online headed “Mourners farewell ‘loving, caring’ Quinton Humes”, which reported on his funeral service at St John’s Anglican Church, Pinjarra, which was conducted by the Reverend Sealin Garlett. This online article also reported other matters, including:
·“Earlier, Reverend Garlett said: ‘This has had a deep impact on the community. It is like it has opened a wound again in the Aboriginal community. It is like we are saying, ‘Here we are going to see again the neglectful way that Aboriginal people have with their children’”.
·“Meanwhile, a low‑key contingent of more than 60 police, including officers from Pinjarra, Mandurah and the Traffic Enforcement Group, had been deployed to the funeral, amid fears of a possible grief‑stricken backlash at Quinton’s family”.
·“However, the sombre service was conducted without incident”.
·“After Quinton’s funeral at St John’s Anglican Church in Pinjarra, a burial service will be at Pinjarra Cemetery”.
·“Pinjarra officer‑in‑charge Sergeant Darrell Phillips‑Jones said police would monitor the funeral to ensure any tensions did not boil over”.
Between 11 July 2008 and 12 July 2008, the respondent posted 114 comments relating to this article, some of which are the subject of complaint by the applicant in this proceeding.
On 17 July 2008, a further article was published online headed “Community mourns three brothers killed in crash”. This report on the funeral for the applicant’s three boys held that day. The article appears also to have been published online under the heading “500 mourn crash boys”. Between 17 July 2008 and 8 September 2008, the respondent posted 179 comments relating to this latter story, one of which is the subject of complaint by the applicant in this proceeding.
APPLICANT’S CASE AS PLEADED AND FINALLY ADVANCED
The applicant pleads in [7.1]‑[7.4] of the amended statement of claim (statement of claim) in this proceeding (which is admitted by the respondent) that on the perthnow website the respondent:
(1)Noted that “police spoke of the ongoing problem of young Aboriginal people being attracted to crime”.
(2)Reported that “Peel Supt Dave Parkinson said that generally the problem was lack of proper parental supervision”.
(3)Announced a “Poll: who’s to blame for out of control kids”.
(4)Quoted Reverend Garlett as saying: “This has had a deep impact on the community. It is like it has opened up a wound again in the Aboriginal community. It is like we are saying, ‘Here we are going to see again the neglectful way that Aboriginal people have with their children’”.
The applicant further pleads in [7.5] of the statement of claim (which is admitted by the respondent), that the respondent published the following readers’ comments (as numbered and on the dates and times shown):
(a)‘...if these young people had not been killed in the course of their criminal activities they would have continued to steal cars and putting the lives of innocent law abiding citizens at risk... Will the law abiding public be given important information re the criminal history of these families as they are the ones footing the huge bill for this matter.’ [Comment 108 of 114 posted by John of 8:27am July 12, 2008];
(b)‘I suggest to the Sunday Times reporters that they look at the criminal history of these boys. They were certainly not little goodie two shoes. Talk to the local police. They knew all about them.’ [Comment 104 of 114 posted by Norm of look a bit deeper 5:55am July 12, 2008]
(c)‘...until these young people gain the respect and gratitude of all races then they will continually be thought of as violent and criminals, can’t keep using the same excuse forever, everyone else has to gain the publics [sic] respect, why in the hell should that exclude aboriginals?’ [Comment 102 of 114 posted by annoyed of perth 1”50am July 12, 2008]
(d)‘...now ‘the elders grieve’. Where were they when the little kids needed supervision late at night’ RIP criminal and poor little boys.’ [Comment 91 of 114 posted by Marion of Perth 5:37pm July 11, 2008]
(e)‘...no one has had a fairer go and more encouragement plus billions of dollars than the aboriginal people of Australia. Apparently in the main to little avail. Life is simple, behave yourself, obey the law, look after your children and partner, create a domestic life conducive to raising kids and people will give you the respect and admiration you deserve. Behave like morons and the community will react as it has over this case.’ [Comment 84 of 114 posted by Harry of 4;04pm July 11, 2008]
(f)‘...criminal trash like these young boys’ [Comment 66 of 114 posted by Kylie of 1:59pm July 11, 2008]
(g)‘Don’t get me wrong but does this blog and previous blogs on this subject just show how little the aboriginal community in perth are respected. I have to admit I hold very little respect for them, due to the multitude of times they are in the press committing crimes and causing general upset. I am aware of very good people who do so much for these communities, but unfortunately they are totally outnumbered, and the people of perth are fed up of the crime, the drunked [sic] and just general anti social behaviour of them. This blog is basically an outcry from society for the aboriginal community to pull their heads in and sort out your futures, and do it now.’ [Comment 53 of 114 posted by Dean of Perth 12:18pm July 11, 2008]
(h)‘Let em [sic] all fight and kill each other i [sic] say!’ [Comment 51 of 114 posted by Unreal! Of Perth 12:09pm July 11, 2008]
(i)‘...not only are we paying for the police protection, we are also more than likely paying to bury the children (I bet the mother won’t be forced to pick up the tab like everyone else). I’m all for equality ... but stop pulling the race card, everyone is aware of the financial benefits of being an indigenous Australian [sic]. You want respect ... time to earn it (by behaving appropriately at a funeral). You have no one to blame but yourselves for the deaths, so stop misdirecting your anger and actually learn from your mistakes.’ [Comment 46 of 114 posted by Brett on No Special Treatment 11:41 July 11, 2008]
(j)‘...I doubt the families will ever be able to behave themselves at the funeral’ [Comment 36 of 114 posted by John of 10.52am July 11, 2008]
(k)‘Why on earth should all the law abiding citizens out there pay for protection of criminals and those that condone such behaviour.’ [Comment 35 of 114 posted by Amanda of perth 10:40am 11 July, 2008]
(l)‘With so many officers having to attend this criminals funeral for what – to ‘keep the peace’?? Maybe if the people involved took responsibility, police would not have to attend.’ [Comment 32 of 114 posted by Harry of WA 10:11AM July 11, 2008]
(m)‘...today will show the real family. If this goes off with trouble it will only prove how ferrell [sic] the rest must be and have not respect for anything even the dead. I have thoughts on the deceased and those I will prefer to keep to myself Today is reckoning day for the rest of his [sic] so called greeving [sic] family’ [Comment 30 of 114 posted by Kristofferson of Perth 9:59am July 11, 2008]
(n)‘You can post as many comment as you like but it wont [sic] change anything untill [sic] the law makers of this land get off thier [sic] fat a## and get out of thier [sic] ivory towers and start dealing out real punishment to the low life instead of the 5 star treatment they get in prison they get 3 squares aday [sic] tv computer clean beds there are lots of holes in [Kalgoorlie I would use these scum as land fill’ [Comment 29 of 114 posted by Jack Reacher of 9:49am July 11, 2008]
(o)‘yeah,yeah i [sic] feel sympathetic to the families of these car thieves,but i [sic] don’t give a rats arse about the fact that they died stealing a car and speeding away from police. I couldn’t care lees [sic] if it was a white prickwho [sic] did it or in this case some black pricks who did it........ ........ ..AT THE END OF THE DAY WHEN THE DUST SETTLES AND YOU ALL HAVE A LITTLE THINK ABOUT IT. THEY BROKE THE LAW AND MY THANKS GO OUT TO THE PARENTS FOR DOING A LOUSY JOB RAISING AND EDUCATING YOUR CHILDREN,SHAME ON YOU’ [Comment 134 of 179 posted by DOCTOR OF PERTH of [sic] 1.08pm July 12, 2008].
The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments regarding parental responsibility” (as numbered and on the dates and times shown):
(a)A comment published on the website on 6 July 2008 numbered 9 of 55;
(b)A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 1 on page 67;
(c)A comment published on the website on 7 July 2008 numbered 31 of 55;
(d)Comments published on the website on 11 July 2008 numbered 37 of 114 and 91 of 114;
(e)Comments published on the website on 17 July 2008 numbered 11 of 179, 43 of 179, 48 of 179 and 53 of 179
(f)Comments published on the website on 18 July 2008 numbered 61 of 179, 63 of 179, 68 of 179, 78 of 179, 82 of 179, 83 of 179, 88 of 179, 89 of 179, 93 of 179, 96 of 179, 105 of 179, 119 of 179, 131 of 179, 132 of 179, 133 of 179, 135 of 179, 144 of 179;
(g)A comment published on the website on 19 July 2008 numbered 149 of 179;
(h)Comments published on the website on 21 July 2008 numbered 166 of 179 and 174 of 179.
The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments regarding association with criminals” (as numbered and on the dates and times shown):
(a)A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 5 on page 67;
(b)A comment published on the website on 8 July 2008 numbered 50 of 55
(c)Comments published on the website on 17 July 2008 numbered 35 of 179, 52 of 179;
The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments directed at race or colour” (as numbered and on the dates and times shown):
(a)A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 6 on page 67;
(b)Comments published on the website on 17 July 2008 numbered 27 of 179, 32 of 179, 33 of 179;
(c)Comments published on the website on 21 July 2008 numbered 164 of 179, 167 of 179, 174 of 179.
The applicant at [9] of the statement of claim pleads that the respondent published the following “Like comments” (as numbered and on the dates and times shown):
(a)Comments published on the website on 11 July 2008 numbered 15 of 114, 20 of 114, 26 of 114 and 32 of 114
(b)A comment published on 18 July 2008 numbered 101 of 179.
The applicant then pleads at [8] of the statement of claim that:
·the words published in (a)‑(g) inclusive and (o) of [25] above; and
·the like comments particularised at [26], [27] and [28] above;
·read singularly or together and in the context of:
(1)the words referred to in [24] above; and
(2)the comments directed at the race or colour of the applicant, her family and community set out in [28] above:
contained the imputations that the Applicant, as an Aboriginal person and member of the local Aboriginal community, (a) is an irresponsible person who has failed in her duty as a parent to supervise her children and ensure they complied with the law and (b) is an associate of criminals.
The applicant pleads at [9] of the statement of claim that:
·the words referred to in [25(h)‑(m)] above; and
·the “like comments published on the website”;
·read singularly or together and in the context of the publication of the words referred to at [24] above:
contained the imputation that the Applicant, as an Aboriginal person and member of an Aboriginal family, was likely to behave at a funeral in a manner which was unlawful and may require the law to be enforced by police officers.
The applicant in [10] of the statement of claim additionally pleads that the words referred to in [25(n)‑(o)] above were “grossly offensive, including because of the words used”.
Finally, the applicant in [11] of the statement of claim pleads that:
·the publication by the respondent of the words referred to at [25] above (a)‑(o) and the like comments set out at [26], [27], [28] and [29] above;
·“comprises an act, or acts, done, otherwise than in private, reasonably likely, in all the circumstances, to offend, insult or humiliate the Applicant”; and
·“one of the reasons the act was done, or acts were done, was because of the Aboriginal race of the Applicant”; and
·so is unlawful under the RD Act.
At the hearing, senior counsel for the applicant clarified the way in which the applicant put her case and stated it was not advanced on the basis of the imputations pleaded in the statement of claim but that the imputations pleaded should be regarded as identifying categories of meaning that the Court might accept in determining whether the comments complained of contravene the RD Act. Two broad categories of meaning were identified as: that the applicant was an inadequate or improper mother; and that persons attending funerals were likely to behave in an unlawful manner.
Senior counsel for the applicant drew particular attention to readers’ comments which he contended could not possibly survive the public interest defences in s 18D of the RD Act, namely, Comment 108 of 114, Comment 102 of 114, Comment 66 of 114, Comment 29 of 114, Comment 84 of 114 and Comment 96 of 179, and otherwise confined the applicant’s case to the question whether any of the comments pleaded in [7.5] of the statement of claim and Comment 96 of 179 contravene s 18C of the RD Act and were not exempt under s 18D.
Senior counsel for the respondent responded to the applicant’s case advanced on this basis and the Court will also rule on this basis.
THE RESPONDENT’S POSITION
The respondent denies that any of its acts of publication contravened s 18C of the RD Act.
In essence, the respondent contends that the uncontested evidence in the proceeding shows the publications were made because of a desire to encourage discussion about matters of undoubted public interest. The respondent says it may be accepted that part of the background that led to the discussion was the death in a car crash of four Aboriginal boys who were involved in an illegal enterprise, the theft of a motor vehicle. Among the matters discussed were Aboriginal disadvantage, how best to remedy it, and the question of personal responsibility. The respondent contends these were and are legitimate matters for public discussion and the comments on these topic do not give offence.
The respondent contends that the evidence does not show, in any event, that the true reason or the true ground of the act or acts of publication in this case was “because of” the race of the applicant. The respondent says that however hurtful certain observations might be, and which might subjectively offend an Aboriginal person – for example, how to remedy Aboriginal disadvantage or to the effect that Aboriginal communities are not doing enough to rectify social problems, or that families should do more to curb the delinquency of their children and the publication of such comments – they are not acts done “because of” the race of the person offended.
The respondent, therefore, contends that the comments on the website objected to by the applicant were neither reasonably likely, in all the circumstances, to offend, insult or humiliate the applicant for the purposes of para (a) of s 18C(1), nor done because of the race of the applicant for the purposes of para (b) of s 18C(1).
The respondent says that in providing the website as, in effect, a public forum where members of the public could express their views on important, albeit controversial subjects, as it did, it may be expected that some comments will be likely to offend the subjective notions of some persons concerning elegance of expression and good taste. Accordingly, in the course of a genuine public debate, persons expressing opinions will inevitably come from different backgrounds, will have different levels of education, will in some cases be inarticulate and may struggle to express themselves with clarity, refinement or restraint that is the result of an advanced education or a keen intellect. But that is not to say that the published comments of such persons necessarily are reasonably likely, in all the circumstances, to offend, insult or humiliate.
Similarly, the respondent contends that merely because the published comments appears to oversimplify the issues involved or exhibit defects of argument or logic does not mean they should be condemned as unreasonable in the sense that they are reasonably likely in the circumstances to offend, insult or humiliate.
The respondent finally says that, even if the comments appear to offend s 18C, they were made in the course of debate for a genuine purpose in the public interest under s 18D(b), and/or constituted fair comment under s 18D(c)(ii), and in each case what was said or done was said or done reasonably and in good faith and so was not unlawful under s 18C.
The respondent reserved its right to contend that s 18C of the RD Act is unconstitutional in that it infringes the right to free political speech guaranteed by the Constitution without pursuing that issue in this hearing.
INTERVENTION OF AUSTRALIAN HUMAN RIGHTS COMMISSION
On the application of the AHRC, leave was granted to the AHRC to intervene in the proceeding, limited to the filing of written submissions on the following issues:
·the interpretation and application of s 18C and s 18D of the RD Act;
·the application of the International Covenant on Civil and Political Rights and International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to the interpretation given to s 18C and s 18D of the RD Act; and
·the relevance of the implied freedom of political communication to Pt IIA of the RD Act in Pt IIB of the AHRC Act.
GENERAL PRINCIPLES
Objective test: In determining whether s 18C of the RD Act has been contravened, it is first necessary to determine whether, for the purposes of para (1)(a), the act complained of is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. In deciding this, the Court does not simply rely on how a particular person or group of people subjectively felt about or reacted to the doing of the act complained of. Rather, the Court assesses whether, objectively, the act complained of was “reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate” another person or a group of people: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 (Cairns Post) at [12]; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 (Jones v Scully) at [98]‑[100]; Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 (Bolt).
In Bolt at [257], Bromberg J noted that the expression “in all the circumstances” needs firmly to be kept in mind. With that I agree. I should add that, in my view, the circumstances in a particular case will depend on the facts found from the evidence.
Justice Bromberg in Bolt goes on at [258]‑[261] to discuss what the expression “reasonably likely” means in this statutory context and concluded that it should be taken to be speaking to the chance of an event occurring or not, which is real, not fanciful or remote. With that I also, with respect, agree. As I do with his Honour’s statement that whether an act is reasonably likely to cause offence is to be assessed on the balance of probabilities.
I note that, at [257], Bromberg J stated that a determination of whether it is reasonably likely, in all the circumstances, that an act gives offence, “requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered”. I can understand that such factors may well be relevant to that determination but whether they are required to be considered on every occasion would, I think, depend on the evidence led in the proceeding. The “circumstances” that will readily be relevant are those particular factual circumstances in which a particular act complained of was done. Of course, the reasons why a particular person or group might feel offended, insulted, humiliated or intimidated by a particular act will also be relevant though not determinative of the issue, as explained below.
The “reasonable victim” perspective: When applying the objective test it is, however, necessary to regard the perspective of the hypothetical person or group – sometimes referred to as the “reasonable victim” – who might possibly be offended by an act of the type complained of.
The adoption of such a perspective is important because, if the Court were not to do so there would be a real risk that the standards of some other, different person or group would be adopted without any sensitivity to cultural differences between groups in the community. This point is well made in human rights literature. For example, Akmeemana S and Jones M, “Fighting racial hatred”, in Racial Discrimination Act 1975: A review (Race Discrimination Commissioner, Commonwealth of Australia, 1995) observe, at p 168, that the adoption of a “reasonable victim” standard can be understood as a means of eliminating a systemic barrier as complainants will no longer be subject to the views of the dominant group concerning the types of comments that in fact are offensive to other groups or sub‑groups in the community.
The Cairns Post case provides a good illustration of the point. The Cairns Post newspaper had published an article concerning the custody of a two year old Aboriginal girl. It concerned the decision of the Queensland Department of Family Services, Youth and Community Care to take the child from foster care with a white family and place her into the care of the applicant who also had the care of the child’s two brothers. The article was accompanied by two photographs, one of the applicant and one of the couple from whose care the child had been removed. The difference between the photographs was that the couple was presented in their living room in a comfortable chair, with photographs and books behind them, while the photograph of the applicant showed her in a bush camp with an open fire and a shed in which young children could be seen. The photographs had been chosen by the respondent after resort to a photographic library. As it transpires, the photograph of the applicant had been taken on an earlier occasion when she had assisted in locating some backpackers who had become lost in a remote area. The applicant alleged that the publishing of the photo caused her upset and humiliation as it portrayed her as a primitive bush Aboriginal woman and implied that this was her usual lifestyle and therefore one in which the child would have to live. In reality the applicant lived in a comfortable four bedroom brick home with the usual amenities.
In assessing the applicant’s complaint Kiefel J, at [13], noted the necessity to consider the perspective under consideration, that is to say, the hypothetical person in the applicant’s position or the group of which the applicant is a member. Her Honour pointed out that a simple reference to the person’s race may, in some cases, be too wide a description. Having regard to the evidence, her Honour observed, at [13], that Aboriginal people’s views about being portrayed as having a more traditional lifestyle, will differ depending upon where and in what circumstances they live. Thus, her Honour accepted that the perspective suggested on behalf of the applicant in order to test whether the respondent had contravened s 18C, was apposite, namely, that of “an Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen” (where the applicant lived).
Viewed from that perspective, her Honour considered such a person would feel offended, insulted or humiliated if they were portrayed as living in rough bush conditions in the context of a report which was about a child’s welfare. Her Honour accepted that, in that context, it was implied by the photographs that the hypothetical person would be taking the child into less desirable conditions, and that was how a “reasonable reader” would have viewed the photographs.
Similarly, in McGlade v Lightfoot [2002] FCA 1457; (2002) 124 FCR 106 (McGlade v Lightfoot) at [46], Carr J explained that the first logical step in a proceeding of this type is to identify a person or group of people who, on the basis of a reasonable likelihood, “may have been affected in the manner described in s 18C”. In that case, where the applicant complained about the public comments concerning Aboriginal people made by the respondent that were published in a newspaper, Carr J initially considered that the relevant person or group of people would at least include “an Aboriginal person or a group of Aboriginal persons leading a traditional way of life”, but also accepted the submission of counsel for the applicant that the respondent’s act should also be assessed “from the aspect of its reasonably likely effect on an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture”.
In Jones v Toben [2002] FCA 1150 (Jones v Toben), at [96], Branson J, at first instance, in relation to a proceeding concerning publications about Jewish people, defined the relevant group as “members of the Australian Jewish community vulnerable to attacks on their pride and self‑respect by reason of youth, inexperience or psychological vulnerability”. On appeal in Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 (Toben v Jones) the identification of the group in this way was not in dispute: see for example, Carr J at [25], Kiefel J at [57], and Allsop J at [154] (his Honour agreeing with the reasons of Carr J at [32]‑[38] in concluding that contravention of s 18C was made out).
In Bolt, the Court, in relation to a proceeding concerning the publication of “blogs” about certain Aboriginal people, considered the perspective of “fair skinned Aboriginal persons” when assessing the blogs.
In Bolt, Bromberg J, at [253], expressly rejected the respondent’s contention that the objective nature of the assessment required by s 18C(1)(a) imported an objective assessment of community standards, and that the same standard applied irrespective of whether group offence or personal offence was alleged. In rejecting this submission, his Honour noted that the contention would see a reasonable person test substitute the reasonable representative test and would result in the perspective clearly required by para (a) being ignored.
However, his Honour accepted, at [255], that the purposes of the RD Act are to be served by objectively attributing to the “ordinary” or “reasonable” representative of the group, characteristics consistent with what might be expected of a member of a free and tolerant society. With respect, I agree with his Honour’s observation, understanding that it is the reaction of the reasonable member of the group that needs to be regarded.
Identifying the “reasonable victim”: There is an issue, which I will determine later in relation to this proceeding, whether it is the perspective of a “person” or a “group” that should be adopted in any particular case. In some cases it may only be an individual who is the subject of an impugned act done or said. In other cases, while a particular person may consider what was done or said was directed at them personally, it may be that it was also directed at a larger group (or subgroup) of which they are a member.
I agree with what Bromberg J said in Bolt, at [248], that the dichotomy between conduct directed to an identified individual, on the one hand, and conduct directed to a group of people in a general sense, on the other, works well in the ordinary case. However, there will be cases where the conduct may be directed to both the individual and the group. In Bolt, at [248], Bromberg J, however, considered that the publications of the respondent should be characterised as directed to individuals identified as examples of people in a wider group and also directed at members of the wider group. As a result, at [250], his Honour adopted the approach of not assessing the acts complained of simply by reference to the perspective of the individuals identified, but rather from the perspective of the reasonable representative of the group of the people who were offended – namely, “fair skinned Aboriginal persons”.
I further agree with what Bromberg J said in Bolt, at [251], that a group of people may include the “sensitive as well as the insensitive, the passionate and the dispassionate, the emotional and the impassive”. For that reason it is necessary to consider only the perspective of the ordinary or reasonable member or members of the group, not those at the margins of the group whose view may be considered unrepresentative.
Finally, I also agree with what Bromberg J noted in Bolt, at [252], that, as in Jones v Toben, the defined group may include a smaller group. In Jones v Toben, as noted above, the “young and the impressionable” Jews were regarded as a vulnerable subgroup of Australian Jewry who were identified as the relevant group whose perspective ought to be taken into account.
Of course the facts and circumstances of each case in which unlawful discrimination is alleged, contrary to the RD Act must guide the correct identification of the reasonable victim in each case.
The “serious effects or consequences” consideration: When it comes to applying the objective test from the perspective of the “reasonable victim”, the words “offend, insult, humiliate or intimidate” used in s 18C(1)(a) do not constitute a compendious phrase and should be separately considered and given their ordinary English meanings: see McGlade v Lightfoot at [51]; Jones v Scully at [102]; Jones v Toben at [90]; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 (Bropho v HREOC) at [67].
However, in Bropho v HREOC, French J, at [67], noted that the words used in para (a) are “open textured” and that in ordinary parlance are sometimes used to describe a level of response to another person’s conduct which is relatively minor. For example, relevant definitions in the Shorter Oxford English Dictionary are:
offend – to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult – to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage…
humiliate – to make low or humble in position, condition or feeling, to humble… to subject to humiliation; to mortify.
intimidate – to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.His Honour, at [68], considered that the “lower registers” of these definitions, particularly those of “offend” and “insult” seemed a long way removed from the mischief to which Pt IIA of the RD Act was directed. His Honour then undertook an examination of the legislative history of Pt IIA of the RD Act and its foundation on Art 4 of the CERD, to which Australia is a State party, and concluded, to similar effect as Kiefel J in Cairns Post, that s 18C was intended to deal with “serious incidents only”.
In Cairns Post, at [16], Kiefel J, having examined the legislative history of Pt IIA of the RD Act, stated:
To ‘offend, insult, humiliate or intimidate’ are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective.
(Emphasis in original.)This approach to the application of s 18C(1)(a), that it is intended, put generally, to deal with serious effects or consequences, has now been generally adopted and applied in a number of cases following Cairns Post and Bropho v HREOC, including Toben v Jones and Bolt.
I note, however, that in Jones v Toben, Branson J, having regard to Kiefel J’s observation that s 18C was concerned with profound and serious effects not to be likened to mere slights, stated that she did not understand her Honour to have intended that a “gloss” be placed on the words in s 18C(1)(a). At [92], Branson J said:
Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to ‘mere slights’ in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.
(Emphasis in original.)I also note that in Bolt, while Bromberg J, at [268], expressly agreed with the view that the conduct caught by s 18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights”, his Honour, at [267], stated that the “public consequence…need not be significant…[i]t may be slight”. His Honour suggested conduct will evince the relevant seriousness to satisfy para (a) where it involves “conduct which invades or harms the dignity of an individual or group”. His Honour, in my respectful view, was not in saying this seeking to restate the test by which para (a) of s 18C(1) will be satisfied, but emphasising the point made at [268], namely, conduct which does not give “real” offence, as opposed to “mere slights”, will not be found to satisfy para (a).
The AHRC, in its submissions, draws attention to what Branson J said in Jones v Toben. Senior counsel for the respondent also drew attention to her Honour’s observations and submitted they could not stand with the remarks of Kiefel J and French J. For my part, accepting that subtleties are no doubt always important, I fail to see a lasting difference between them. If one takes the simple dictionary definitions of the words “offend” or “insult” given above, then, in my view, there is force in the view that, on the face of them, even relatively minor conduct might fit their meanings. But those and the other words employed in s 18C(1)(a) are not employed without qualification. Rather, the test for offensive behaviour is whether the act done “is reasonably likely, in all the circumstances” to offend etc. So an act that may, at first regard, appear to fall within the statutory proscription, may not be considered reasonably likely to do so when all the circumstances of the case are considered from the perspective of the reasonable victim.
What is important and what remains important in the assessment process, is the perspective of the reasonable victim, as indeed the qualification of Kiefel J in the passage from Cairns Post cited above at [68] emphasises. In that case, her Honour held that the act of publication of the two juxtaposed photographs would be likely to offend when considered from the perspective of an “Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen” and so satisfied para (a) of s 18C(1) (although her Honour went on to find it did not satisfy para (b) of s 18C(1)).
Thus, an act done, something said, that might not offend one group of Australians because it will be considered by them as a mere slight only, may well be considered reasonably likely, in the circumstances, to offend another, minority group. Communications about a historically oppressed minority group are far more likely to cause relevant harm to that group, than communications which relate to a dominant majority.
It goes without saying that in regarding the perspective of the reasonable victim, while the subjective feelings of a particular person who complains about an act is not determinative of the question whether an act is reasonably likely to offend, etc, the Court is not properly equipped without relevant evidence to identify that perspective. The Court will therefore regard evidence led by the parties to that end, including from a complainant (such as the applicant in this proceeding) and then, having evaluated it, form a view about the perspective of the reasonable victim in relation to a particular act complained of.
Thus, in the Cairns Post case, the Court regarded the evidence of the applicant mother affected directly by the publication complained of, in McGlade v Lightfoot the Court regarded the evidence of a senior Nyungar women and a number of senior men and in Bolt, the Court regarded the views of a member or members of a group of “fair skinned Aboriginal persons”.
Causation issue: If, having regard to para (a) of s 18C(1), the Court determines that the doing of an act is reasonably likely, in all of the circumstances, to offend, insult, humiliate or intimidate another person or group of people, then the further question must be asked, for the purposes of para (b) of s 18C(1), whether the act complained of was done “because of” the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
As noted above, it is not necessary, having regard to the terms of s 18B of the RD Act, to show that the act complained of was done solely for one or other of those reasons. It is enough that the race of the applicant, for example, was one of the reasons for the doing of the act in question.
The use of the expression “because of” in s 18C(1)(b) raises questions concerning: how an applicant should go about proving the causal relationship between, for example, the act done and a person’s race; whether the motive or intention of the respondent is relevant to that issue; and, if it is, whether it matters that motive or intention for the doing of the act is not directly proved.
In Cairns Post, Kiefel J concluded, at [28], that the question in the case before her was whether anything suggested race “as a factor” in the respondent’s decision to publish the photograph. Her Honour noted that the context of the article in question was race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race should be taken to have “actuated the publication” – that is to say, to have been “a factor”. For her Honour the question was whether the publication of a photograph showing the applicant’s apparent living standards, “was motivated by considerations of race”.
In the result, Kiefel J was not satisfied that the act complained of had been done “because of” race. Her Honour considered, at [29], there was nothing in the newspaper article itself which provided an insight on the question. The reader might reasonably draw a comparison between the two photographs. The reader might assume the photograph to accurately portray the applicant’s living circumstances. If there was anything to suggest that the respondent, in arriving at its decision to include the photograph, had acted upon an assumption that this was the case, or if it had chosen the photograph when others depicting the true circumstances were available, then her Honour considered the requirement of race as a cause may well have been satisfied. But the evidence did not suggest that. Her Honour also considered it was possible that the respondent’s employees just did not turn their minds to what the photograph conveyed, in addition to the portraits of the parties. In that regard mere thoughtlessness would not qualify the conduct as unlawful under s 18C.
Thus, it can be seen that Kiefel J accepted that motivation or reason for the doing of an act is relevant to the causal issue, and that if there is evidence to support the finding, motivation or reason based on race may be inferred from the act itself – for example, from the terms of a publication.
In Tobenv Jones, at [61], Kiefel J confirmed and elaborated on the view she had expressed in Cairns Post. At [63], her Honour said that the inquiry as to motive or reason for an act is not limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. Her Honour emphasised that: “The enquiry is as to the true reason or true ground for the action” (emphasis in original).
Her Honour, at [63], added that:
A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.
Her Honour also noted, at [64], that the question posed by s 18C(1)(b) is separate and different from the one posed by s 18C(1)(a) and that more is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason.
At first instance, the primary judge had found that the relevant group was Australian Jewry and other members of the Australian Jewish Community within that group, particularly younger, vulnerable members, and that the impugned publication contained the following meanings or imputations:
(a)There is serious doubt that the Holocaust occurred.
(b)It is unlikely that there were homicidal gas chambers in Auschwitz.
(c)Jewish people who are offended by and challenge Holocaust denial are of limited intelligence.
(d)Some Jewish people for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
Justice Kiefel, at [65], considered that the conclusion reached by the primary judge, that the publication in question was plainly calculated to convey a message about Jewish people, stated the necessary causal connection between the act of publication that gave offence and the group of a particular race.
At [68], Kiefel J suggested it may be possible in some cases “to infer that a person must have intended offence to the racial or ethnic group in question by what is said or done”. Such a conclusion, her Honour reasoned, might be reached by reference to the gravity of the offence likely to be caused and the apparent relevance of the statement in the context in which it appears.
However, her Honour also stated, at [69], that some statements which cause offence may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. These will not provide the necessary motivation for s 18C(1)(b) purposes.
At [70], Kiefel J noted that in other cases it may be that, in pursuing an historical or other discourse, offence cannot be avoided, and the reason for the statement causing offence will not lie in considerations of the affected group’s race. In such a case, however, her Honour considered one would “expect to discern the argument” being pursued.
Justice Kiefel, at [72], emphasised, however, that a contravention cannot be made out “by assumptions as to motive, as distinct from inferences which may properly be drawn”.
Justice Kiefel finally considered whether the appellant was motivated by the Jewishness of the group was to be determined by the reference to the statements made by him. Her Honour went on, at [74], to point out that the proceedings did not involve any determination about the truth or falsity of the appellant’s claim or the historical records which he challenged. But her Honour added that, if it were shown that he knew his challenges to be without foundation, and that they were therefore cynically made, the conclusion that he intended offence to the group could be readily drawn. Her Honour, however, could not see how this could be gleaned from the article which principally contained denials of what was said to be historical fact, even if those denials seemed incomprehensible. However, at [77], her Honour noted other aspects of the appellant’s publication where it was stated that historical fact “clearly shows that Jews are not always victims in history, but also murderers”. Her Honour considered this provided “more than a little insight” into what actuated the appellant to publish the article and supported the findings made by the primary judge.
In Toben v Jones, Allsop J, approached the causation issue a little differently from Kiefel J. His Honour observed at [151] that it is the “reason or reasons” for the act which must be discerned in order to decide whether an act was done “because of” race or another factor. His Honour added, however:
Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct … proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament.
Justice Allsop, at [154], accepting that the questions raised by s 18C(1)(a) and (b) are different and separate inquiries, noted that nevertheless the material relevant to one may be relevant to the other. His Honour suggested that the ease with which one can draw the conclusion that, objectively, the publication satisfies s 18C(1)(a), may assist in drawing a conclusion as to why the person published the material. If something is obviously offensive, that may, in the circumstances, assist a conclusion that the act of publication was, for example, done because of race. Justice Allsop otherwise agreed with Carr J that the link provided for by s 18C(1)(b) was satisfied in that case.
Justice Carr, at [32], noted that the appellant had not placed any evidence before the Court about his intention or motive in publishing the relevant document. His Honour considered, nonetheless, that in examining its contents it was possible to draw inferences about his intention or motive in doing so. At [37], Carr J concluded that at least one reason why the document was published was because of the race or ethnic origin of Jewish Australians, whom the appellant conceded were reasonably likely to be offended by the publication.
Causation and media outlets: Particular causation questions may arise in circumstances where a person, such as a media outlet like the respondent, publishes the words of another. It might for example be a letter to the editor or, as in this case, a comment published on a website designed to facilitate contemporaneous public discussion or debate on a topic of genuine public interest. If the comment published is of itself objectively offensive, can the media outlet be said to have published the comment “because of” race. On the one hand, it might be said that the only thing that the media outlet has done is publish a comment, not of its own, but of someone else. In cases such as Jones v Scully, McGlade v Lightfoot, Toben v Jones, Cairns Post and Bolt, the respondent was the actual author of the comment complained of. In a case such as the present, the respondent has facilitated the publication of someone else’s comment, although having first “moderated” or vetted it.
Accordingly, it may possibly be argued, along the lines of the finding in Cairns Post, that if there is nothing to show that the act of publishing what is objectively an offensive comment was motivated or actuated by race then there is no contravention. On the other hand, it might be argued that it would be a remarkable outcome if a media outlet were able to avoid a finding of contravention of the RD Act for publishing objectively offensive material, by simply citing its own subjective intention to facilitate public debate on a topic of genuine public interest.
In Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93‑147, a decision of the Human Rights and Equal Opportunity Commission, delivered 7 May 2001, Radio 6PR, owned by the first respondent, broadcast a morning talkshow in Perth hosted by the second respondent, Mr Sattler. It included a segment called “Taxi talk” which involved Mr Sattler seeking the views of Perth taxi drivers on a variety of local issues. Mr Sattler was responsible for the content of “Taxi talk”. He was able to control what was broadcast in two ways: he discussed what was going to be said with callers before going to air; and he had access to a “dump” button that he could use to prevent any comments from being broadcast.
The applicant contends that this is a statement which the applicant could regard as having been directed to her personally. It effectively makes a judgment about her as a mother. The comments are to this point on the website about the Aboriginal community and are not in some broader context. As a result, this is an extreme comment about an Aboriginal woman, about whether or not she was capable of raising children and whether or not she ought to have any children. Her mothering skills are decried. It is an extremely derogatory comment and does not contribute to debate on any matters relating to public interest concerning the responsibility of parents in the Aboriginal community.
In my view, the way in which the respondent seeks to recast this comment is contrived. It plainly is capable of being construed as a direct attack on the applicant. I consider this comment is reasonably likely, in all the circumstances, to offend and insult the reasonable victim. Not only would the reasonable victim be offended and insulted by the attack on the applicant, but they would also read the comment quite reasonably as an attack on mothers in the local Aboriginal community who have behavioural trouble with their children. They would reasonably take offence and be insulted by the statement that many such mothers are “hopeless” and that they should not “breed”. The offence and insult is compounded by the demand that such mothers should save a range of people a lot of trouble, heartbreak and other peoples’ money by not having children. This is no mere impolite, badly worded, unsophisticated statement about a matter of public interest. This is personal abuse against mothers in the local Aboriginal community, including the applicant, who have children who have proved difficult to control.
There is also, in my view, little doubt that, in the context of comments posted on the website to that point, where the discussion has been about the car crash involving the death of the Aboriginal boys, issues of parenting in the Aboriginal community and the responsibility of parents in the Aboriginal community, that this comment was directly aimed at Aboriginal mothers, including the applicant, and not mothers in the general community. As a result, race was a factor in the making of the comment.
In these circumstances, it was not reasonable for the respondent to publish this comment and the publication of it contravenes s 18C.
For those same reasons the comment was not published reasonably or in objective good faith for the purposes of s 18D.
As a result I find that the posting of Comment 96 of 179 on the perthnow website by the respondent contravenes s 18C of the RD Act.
REMEDIES
I have found that the respondent contravened the RD Act in respect of the publication of the following comments:
(1)Comment 108 of 114;
(2)Comment 66 of 114;
(3)Comment 29 of 114;
(4)Comment 96 of 179.
The power of this Court to provide a remedy following contravention of the RD Act arises under s 46PO(4) of the AHRC Act:
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re‑employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
The expression “unlawful discrimination” is relevantly defined in s 3 of the AHRC Act as meaning any act that is unlawful under Pt II of Pt IIA of the RD Act. Section 18C, which I have found the respondent contravened in respect of the publication of the above four comments, is in Pt IIA.
There is efficacy in the Court making an order declaring that the respondent has committed unlawful discrimination by contravening s 18C of Pt IIA of the RD Act in that it confirms the contraventions found, is likely to bring a sense of justice to those who have suffered as a result of discrimination, including the applicant, and reminds the respondent and media outlets generally, of the importance of the requirements of the RD Act.
It would also appear appropriate in the circumstances to direct the respondent not to repeat or continue such unlawful discrimination. An order to this effect will ensure that the discriminatory posts, if they are still able to be accessed by the public on the perthnow website, are promptly taken down.
In the circumstances of this case, orders pursuant to s 46PO(4)(b) and (c), s 46PO(4)(e) and s 46PO(4)(f) are not called for.
The applicant, however, seeks an order pursuant to s 46PO(4)(d) requiring the respondent to pay the applicant damages by way of compensation for loss and damage suffered because of the conduct of the respondent, comprising damages for offence, insult and humiliation, and exemplary damages.
It is generally accepted that an order for damages by way of compensation for loss or damage suffered “because of” the conduct of a respondent may be made under s 46PO(4)(d) where actual loss or damage has been suffered and there is an appropriate causal relation between the loss or damage suffered and the conduct of the respondent.
In this case the evidence shows and I find that the applicant is a person who was directly offended, insulted and humiliated by the contravening conduct found and suffered such economic loss.
It is generally accepted that under para (d) of s 46PO(4) damages may be awarded for both economic and non‑economic loss, including for offence, insult and humiliation or the like: see Fetherston v Peninsula Health [2004] FCA 485 at [98], per Heerey J.
There is dispute, however as to whether exemplary damages are recoverable under para (d): see Hughes (formerly De Jager) v Car Buyers Pty Ltd [2004] FMCA 526; (2004) 210 ALR 645, where Federal Magistrate Walters considered contending authorities and found they are not. I note also that in Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 247 ALR 273 (Gama) at [94], French and Jacobson JJ stated that the damages which can be awarded under s 46PO(4)(d) are “entirely compensatory”. The applicant, however, draws attention to the Court’s broad power under s 46PO(4) to make such orders “as it thinks fit” and submits that this power should not be limited by the terms of para (d). There is academic support for this view: see for example, see Rees N, Lindsay K & Rice S, Australian Anti‑Discrimination Law (The Federation Press, 2008) at [11.4.1]. No argument seems to have been put to their Honours in Gama in this regard. I note, however, that in Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92, at [133], a Full Court of this Court left this precise question open. In this case, however, for reasons explained below, the question does not need finally to be decided by me as I am not satisfied exemplary damages would be appropriate in this case even if the Court has the power to award them.
The applicant submits that generally damages should be awarded to compensate her for the devastating effect the respondent’s “media campaign” and resulting media commentary had upon her. The applicant says that the degree to which the media commentary adversely affected her reputation in the local community in Western Australia, near Perth, in which she lived, and criticism of her which it attracted forced her to leave her home and move interstate to Adelaide where her brother lived.
Assuming the Court has the power to award exemplary damages for breach of the Pt IIA of the RD Act, I do not consider that this is an appropriate case in which to do so. The reason for so finding is that while contraventions of the RD Act have been found, they are not as extensive as alleged. This, I consider, reflects the fact that the respondent endeavoured at material times to “moderate” or vet comments before publishing them to avoid precisely the type of claim made against it in this proceeding. It certainly has not adopted a cavalier approach to the publication of such readers’ comments. The process has not proved fool‑proof, as my findings show, but it seems to have been applied with a degree of seriousness. The evidence tendered by the respondent identifies a range of comments that were culled by moderators in this case and never published. In these circumstances, the respondent’s conduct in contravention of the RD Act does not warrant an award of exemplary damages, assuming the Court has the power to award such damages.
As to the broad submission made on behalf of the applicant that the respondent conducted an unjustifiable and sustained “campaign” against her by the flow of articles and readers’ comments published in The Sunday Times and particularly online, I should make the following observations. Proceedings like this tend to involve a primary clash between the exercise of the right of free speech, on the one hand, and the right of a person such as the applicant to be accorded the protections granted by Pt IIA of the RD Act, on the other. The respondent at material times acted within its free speech right to report on the accident that involved the tragic death of four Aboriginal boys and publish readers’ comments about it and its implications for the community. Reports of this kind were almost bound to be upsetting for the applicant and the families of the deceased boys. It may be unreasonable to expect that a media outlet would ever refrain from reporting and facilitating comment on such a tragic event. Given the strong concerns in the general community at material times concerning the prevalence of juvenile crime in the local Aboriginal community and questions being raised about parental responsibility in that regard, it was unlikely any media outlet would fail to report the accident or refrain from discussing and facilitating discussion of its implications for the general community. Those questions, as the applicant accepts, were at material times valid issues of public concern that justified public discussion.
The most that one can, perhaps, hope for from a media outlet, or any person in the community dealing publicly with such a tragic event, is that they bear in mind that loved ones will be grieving in unimaginable ways in the immediate aftermath of their loss, and take care, as a matter of common decency, not to add unthinkingly to the hurt and pain they would be experiencing. However, as I say, public discussion of the accident involving the boys in this case was probably inevitable.
The remaining questions are what damages by way of compensation for offence, insult and humiliation would seem to be appropriate in favour of the applicant, whether aggravated damages should be awarded, and whether there is evidence of any other actual damage or loss suffered by the applicant.
Some years have now passed since the publication of the offensive comments. While the passage of time may have helped to heal the hurt suffered by the applicant at the time, time is unlikely have completely healed all emotional wounds. The applicant has recounted how she felt compelled to leave Western Australia and move interstate to Adelaide for a period to avoid the opprobrium of people in the general community. She has attested to the shame and humiliation she felt, which evidence is not challenged by the respondent. That said, it is only the hurt that flows from the contravening acts for which a remedy can now be provided. Even so, the hurt that flowed from the publication of Comment 29 of 114 and Comment 96 of 179, in particular, must have been severe. I consider they would have been the comments that cut the deepest. By themselves, they would justify a mother wanting to hide from the community in which she lived. I consider an award of damages in the sum of $12,000 is appropriate for the offence, insult and humiliation suffered by the applicant as a result of the four contravening acts considered as a whole.
The applicant barely, if at all, presses a case for aggravated damages. Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done. In this, they are different from exemplary damages, which are intended to punish a wrongdoer and deliver a measure of moral retribution or deterrence: see Uren v John Fairfax & Sons Pty Limited [1996] HCA 40; (1966) 117 CLR 118 at 149, per Windeyer J, whose observations to this effect were quoted with apparent approval in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ.
The applicant in her written submissions properly notes that the Court should avoid awarding double compensation by making distinctions which do not exist in the present circumstances between general damages, including for contravening conduct which offends, insults or humiliates, and aggravated damages and refers to such authorities such as Spencer v Dowling [1997] 2 VR 127 at 144‑145. Certainly the point is well made that if aggravated damages were to be awarded by reason of the hurt, distress and humiliation suffered by the applicant, then the same considerations cannot also be used to justify a separate order for aggravated damages, because to do so would in effect involved “double dipping”.
There are, however, a wide, additional range of circumstances in discrimination cases which may give rise to an award of aggravated damages, a number of which are discussed in Elliott v Nanda & Commonwealth [2001] FCA 418; (2001) 111 FCR 240 at 297‑298 by Moore J. Those circumstances might include, for example, the manner in which a party maintained its defence of a claim, or unjustifiably cross‑examined an applicant thereby exacerbating the hurt and injury suffered from the primary discrimination.
In this case, I am not satisfied by the evidence that the respondent has conducted these proceedings in any way which would justify an order of aggravated damages, and senior counsel for the applicant makes no submissions that the Court should award damages on such a basis or any other basis that would support an award of such damages.
There is no claim made for any other particular loss.
ORDERS
In these circumstances the Court will make orders to the following effect:
(1)The Court declares that the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing the following comments:
(a)Comment 108 of 114;
(b)Comment 66 of 114;
(c)Comment 29 of 114;
(d)Comment 96 of 179.
(2)The Court orders the respondent forthwith to remove the contravening publications from its perthnow.com.au website and any other sites maintained by it.
(3)The Court orders that the respondent pay damages by way of compensation to the applicant for the offence, insult and humiliation she has suffered in respect of the contravening acts in the sum of $12,000.
(4)The Court will hear from the parties as to the final terms of these orders and on the question of pre‑judgment interest and costs.
I certify that the preceding three hundred and fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 27 March 2012
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