Hagan v Trustees of the Toowoomba Sports Ground Trust
[2000] FCA 1615
•10 NOVEMBER 2000
FEDERAL COURT OF AUSTRALIA
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615
RACIAL DISCRIMINATION - complaint by one member of local indigenous community that public display of the word “Nigger” in the name on a sign on the stand at the sports ground infringes the Racial Discrimination Act 1975 (Cth) - stand at sports ground named after well known local sportsman - the name includes the nickname “Nigger” long used as part of the common identifier of the sportsman - sports ground trustees decide to keep the sign in place unaltered after inquiring and ascertaining that, apart from the complainant, the local indigenous community did not object to its continued display - no breach of ss 9(1) or 18C of the Racial Discrimination Act 1975 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Racial Discrimination Act 1975 (Cth) ss 9 and 18C, Part IIA
Acts Interpretation Act 1901 (Cth) ss 13, 15AA, 15AB
International Convention on the Elimination of All Forms of Racial Discrimination, Article 5Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 referred to
Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 citedThe Australian National Dictionary
The Macquarie Dictionary, 3rd ed
Dictionary of Afro-American Slang (International Publishers, New York, 1970)
The Oxford English Dictionary, 2nd ed, (Clarendon Press, Oxford, 1989)STEPHEN HAGAN v TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST
Q 35 OF 2000DRUMMOND J
BRISBANE
10 NOVEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 35 OF 2000
BETWEEN:
STEPHEN HAGAN
APPLICANTAND:
TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST
RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
10 NOVEMBER 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 35 OF 2000
BETWEEN:
STEPHEN HAGAN
APPLICANTAND:
TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST
RESPONDENT
JUDGE:
DRUMMOND J
DATE:
10 NOVEMBER 2000
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application pursuant to s 46PO the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for compensation of $50,000 for loss and damage alleged to have been suffered by the applicant because of the conduct of the respondent in breach of ss 9 and 18C the Racial Discrimination Act 1975 (Cth).
The applicant contends that the Trust which controls the Toowoomba Athletic Oval has contravened these provisions of the Racial Discrimination Act by the decision of the Trust’s Committee at its special meeting of 8 July 1999 not to remove the word “Nigger” from a sign on a stand at the Athletic Oval. The sign displays a person’s name; it consists of the words “The ES ‘Nigger’ Brown Stand”. The minutes of the Trust record that the applicant’s letter of complaint of 23 June 1999 was received and that the trustees made the following decision:
“After discussion it was moved by Ian Knight and seconded by Dianne Thorley that a letter of reply be sent to Mr Hagan thanking him for his letter dated 23rd June 1999 and received by us on 8th July 1999 requesting the removal of the word ‘Nigger’ from the sign and to inform him that all members of the Trust regret that he is personally offended by the name when attending football matches at the Toowoomba Athletic Oval. However, based on representation and responses made by numerous indigenous people to all members of the Trust, the Board unanimously resolved that no further action be taken.”
The Trust chairman, by letter of 10 July 1999, informed the applicant of this decision.
The applicant is of Aboriginal descent. He has lived with his family in Toowoomba for the past four years. He has had an extensive career in various areas in the public sector. He is currently employed as Chief Executive Officer of the Toowoomba Aboriginal Corporation for the Community Development Employment Program and has been elected a member of the ATSIC Regional Council for the Toowoomba area. He has had a longstanding interest in rugby league both as a player and as a spectator.
The Athletic Oval is the most important rugby league venue in the Toowoomba area. All major representative games are played there. During the first couple of years the applicant lived in Toowoomba, he attended matches at the Oval on about fifteen occasions. There are two large public stands. One carries, in a prominent position, the sign I have referred to. It seats about 600 people. The applicant describes the sign as “very large” and visible from all parts of the ground and also from outside the ground. During matches, there is frequent reference, both in announcements as to the availability of facilities for the public at the Oval and in match commentaries, to “The ‘Nigger’ Brown Stand”. The applicant became increasingly offended at the display of the word “Nigger” in the sign on the stand and at the frequent mention during games of the word “Nigger”, in the context of references over the public address system to “The ‘Nigger’ Brown Stand”. His wife, who has accompanied him to the ground, has had the same reaction. He used to take his young children to the Oval on occasions, but because of his own reaction to the presence of the word “Nigger” in the sign on the stand and the oral references at the Oval to the word as part of the name of the stand, he has stopped doing that. Ultimately, he decided to complain to the Trust. He did this by his letter of 23 June 1999, in which, while acknowledging his respect for ES Brown and his family, the applicant asked the Trust to take immediate action to have “The ES ‘Nigger’ Brown Stand” public sign removed from the grandstand because he was personally offended by it whenever he attended football matches at the ground. He drew the Trust’s attention to his entitlement to make a complaint under the Racial Discrimination Act to the Human Rights and Equal Opportunity Commission, if his request was not complied with.
The applicant says that the word “nigger” is deeply offensive to him “whatever the context the word is used” in. He adds that he cannot think of a single instance in which the term could have an innocuous or neutral meaning.
The word “nigger”, though perhaps more closely associated with the United States of America, has long been used in Australia to refer, in a derogatory way, to indigenous people, as reference to The Australian National Dictionary demonstrates. There can be no doubt that use of the word “nigger” is, in modern Australia, well capable of being an extremely offensive racist act. If someone were, for example, to call a person of indigenous descent a “nigger”, that would almost certainly involve unlawful racially-based conduct prohibited by the Racial Discrimination Act. I say “almost certainly” because it will, I think, always be necessary to take into account the context in which the word is used, even when it is used to refer to an indigenous person. This is shown by the fact that the applicant volunteers that he is aware of suggestions that some aborigines refer to each other as “nigger” “in a joking way”, (though he himself has never heard the word so used). It would, I think, be very unlikely for there to be any breach of the Racial Discrimination Act if an Aborigine were to refer to a fellow Aborigine in such a way as a “nigger”. Though neither The Macquarie Dictionary, 3rd ed, nor The Australian National Dictionary make any reference to this use of the term within indigenous communities in Australia, such a use is well documented in the USA and the United Kingdom. Clarence Major points out in his Dictionary of Afro-American Slang (International Publishers, New York, 1970) that when the word “nigger” is used by a white person in addressing a black person, it is usually offensive and disparaging, but “used by black people among themselves, it is a racial term with undertones of warmth and goodwill - reflecting, aside from the irony, a tragicomic sensibility that is aware of black history”. The Oxford English Dictionary, 2nd ed, (Clarendon Press, Oxford, 1989) also recognises this ironic usage in some black communities. It gives the following as the primary meaning of the word:
“A Negro. (colloq. and usu. contemptuous) Except in Black English vernacular, where it remains common, now virtually restricted to contexts of deliberate and contemptuous ethnic abuse.” (emphasis added)
This all serves, in my opinion, to show how essential it is to have regard to the context in which even a word that usually has such a strong racially offensive connotation as “nigger” is used, in assessing whether it is in fact used on a particular occasion in a derogatory way. I do not think any absolute rule can be stated: it will, I think, all depend upon the circumstances in which the particular use of the word occurs, a truism reflected in s 18C(1)(a) of the Act. I do not therefore accept the applicant’s contention that its use whatever the context must invariably be racially offensive and a breach of the Racial Discrimination Act.
It is apparent that this case has nothing to do with whether the Racial Discrimination Act is breached because an indigenous person has been called a “nigger”. The issue for decision is quite different. It is whether the public display of the word “Nigger” in a context which does not, on the evidence, have any racist connotation or racist message contravenes the Racial Discrimination Act.
It is necessary, in order to explain why I have characterised the question for decision in this way, to say something about the person whose name is on the sign. Edward Stanley Brown was born in 1898 and died in 1972. He was of Anglo-Saxon descent. He became a very well known Toowoomba identity primarily because of his career as a footballer. He was Toowoomba’s first rugby league international player, President of the Toowoomba Rugby League in the early 1950s and a member and then Chairman of the respondent Trust during a twenty year period ending in the late 1960s. He was a City Alderman at the time of his death. In 1960, the trustees of the Athletic Oval voted to name the stand “The ES ‘Nigger’ Brown Stand”, plainly to honour Mr Brown as a distinguished local sportsman. It has carried that name ever since.
The evidence is unclear as to precisely when and in what circumstances the nickname “Nigger” became attached to Mr Brown. There are various theories in the evidence as to why it was bestowed on him. One suggestion is that a family friend named him “Nigger” as a child because he was a blonde haired and fair-skinned boy. (There was a practice, once common in Australian vernacular speech, of giving a person a nickname that attributed to the person physical characteristics opposite to those he in fact possessed, eg, bald men were sometimes called “Curly”.) The ABC of Rugby League by Malcolm Andrews contains the following in the entry for “Edwin (sic) ‘Nigger’ Brown”:
“Edwin Brown’s nickname would, for obvious reasons, never be countenanced today. The name had nothing to do with the colour of Brown’s skin. It came about because of his snappy dressing and penchant for wearing deep brown shoes. This colour was known in the shoe shops as - ‘nigger brown’.”
The Oxford English Dictionary, 2nd ed, refers in the entry for “Nigger” to its use in combination with other words “to denote a dark shade of colour, as nigger-brown”. Examples of this usage between 1914 and 1973 in relation to various colours of clothing material are given.
If either explanation describes the genesis of Mr Brown’s nickname, a racial connotation may well have then been involved. But I think the evidence establishes that the use of the word “Nigger” as part of the name by which Mr Brown went and was known has long been devoid of racial connotation. It is clear that, through most of his life, including his career as a rugby league player and subsequently, Mr Brown himself went by the name “Nigger” Brown and he was known in the Toowoomba community (and more widely) by that name. There is no reason to doubt what the present Chairman of the respondent Trust, who knew Mr Brown personally as “Nigger” Brown, has to say about his researches which reveal that Mr Brown was universally known by that same name. That is how he is referred to in football team photographs and on club trophies and in newspaper articles. His gravestone bears the name “Edward Stanley ‘Nigger’ Brown”. It is, I think, apparent that the use of this nickname both by Mr Brown and of him by the community in which he lived over many years was not a usage intended by Mr Brown to convey or which did convey to any local resident (apart from the applicant) a racist element. Even if the nickname “Nigger” was originally bestowed long ago on Mr Brown in circumstances in which it then had a racial or even a racist connotation, the evidence indicates that for many decades before the applicant’s complaint, its use as part of the customary identifier of Mr Brown had ceased to have any such connotation.
It is convenient to deal with the applicant’s case in so far as it is based on s 18C the Racial Discrimination Act first. This provides:
“(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;
(b)is done in a public place; or
(c)is done in the sight or hearing of people who are in a public place.
(3) In this section:
‘public place’ includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.”
It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section. The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?
It also seems clear enough from the use of the phrase “if … the act is done because of the race …” in s 18C(1)(b) that there must be a causal relationship between the reason for the doing of the act and the race of the “target” person or group. Section 18C(1)(b) can, in this respect, be contrasted with s 9(1), which requires only that the act there proscribed be “based on race”, ie, that the act has a sufficient connection, not necessarily causal, with considerations of race, etc. See Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489.
The applicant contended that the act he complains of, in so far as it consists of the decision of the trustees taken in private meeting, was nevertheless an act done “otherwise than in private” because, in terms of s 18C(2)(a), that decision to allow the offending word “Nigger” in the name of the stand to remain on display at the Oval thereby caused that word to be communicated to the public. That may be right. In any event, to overcome any possible difficulty in showing that an offending act was done “otherwise than in private”, the applicant, at the hearing and without objection from the respondent, also contended that the Trust had breached the Racial Discrimination Act by keeping the offending sign in place on the stand at the Oval, plainly itself a “public place” within s 18C(3).
However, the applicant’s case based on s 18C(1) fails. He cannot, in my opinion, prove that the trustees’ decision is an act within s 18C(1)(a).
As the trustees’ decision records, it was arrived at only after they had considered the views of numerous members of Toowoomba’s indigenous community. Mr McDonald, the present Chairman of the trustees, refers to inquiries he made of Mr Kevin “Dick” Rose, a prominent member of the Aboriginal community in Toowoomba. He says he was told by Mr Rose that the Aboriginal community had no objection to the name and, in fact, supported retention of it on the stand at the Oval. Ms Thorley, another trustee and currently Mayor of Toowoomba (who disputed in part the applicant’s account of the conversation he had with her in mid June 1999 about the naming of the stand), said that before attending the meeting at which the trustees’ decision in question was made, she canvassed the opinion of the Aboriginal community and formed the view that, as a whole, it was “not against the retention of the name”. She mentions that, until the applicant’s complaint, no complaints had ever been made to the Trust with respect to the name of “The ES ‘Nigger’ Brown Stand”. Mr Arthur Beetson, a prominent rugby league identity of Aboriginal descent now resident in Sydney but who in past years played rugby league on the Darling Downs, commented on the applicant’s complaint in this way:
“It is my understanding that Mr E.S. Brown was known as ‘Nigger’ by his friends, colleagues and the wider community. I take the view that this name is simply part of history and have no problem with this name when used in the context of honouring the late Mr Brown.”
Mr Rose, to whom the Trust’s Chairman spoke, gave evidence. He is heavily involved in and well known among the Toowoomba Aboriginal community. He has also been an outstanding Toowoomba rugby league player and remains an active supporter of rugby league there. Like Mr Beetson, he takes no offence at the presence of the word “Nigger” in the name of the ES “Nigger” Brown Stand. He says:
“I know from experience that many people referred to the late Edward Brown simply as ‘Nigger’. The naming of the stand is to honour Mr Brown and I do not have a problem with the use of the word ‘Nigger’ in this context.”
It is not without significance that a little while ago Mr Rose was involved in the running of the State Aboriginal Championships which were played at the Toowoomba Athletic Oval. He says that, over the course of the weekend of the championships, approximately 6,000 people, many of them of Aboriginal descent, attended. He adds that there was not one complaint, so far as he is aware, about the display of the sign in question though, as the applicant says, it is highly visible.
That the trustees, in deciding to retain the name unaltered despite the applicant’s objection, did form a reasonably accurate picture of the views of the Toowoomba Aboriginal community about the presence of the word ‘Nigger’ in the name in the sign on the stand in the course of making their decision to keep it in place is also confirmed by the evidence of what took place at the public meeting held on 29 July 1999, ie, a few weeks after the trustees’ decision the subject of the applicant’s complaint.
Mr Rose chaired this meeting. It was attended, according to his evidence, by a cross-section of the Aboriginal community in Toowoomba as well as the Mayor, Ms Thorley. The Chairman of the respondent Trust, Mr McDonald, was invited to join the meeting after a decision, recorded in a resolution, had been reached. About sixty people were in attendance. That is, on the evidence, a large roll-up for such a meeting. I accept that the meeting was held in circumstances where it was widely known among the Aboriginal community that it was to be convened. The applicant’s complaint had received very considerable publicity in the local media, which commenced in early June 1999. This publicity included interviews which the applicant gave to the media and at least one photograph of the applicant standing against the sign which was also published in the Toowoomba Chronicle. Mr Rose says that was a topic of a lot of discussion among the Aboriginal community prior to 29 July. I also accept that such a meeting, of as many as sixty people, does enable a reasonably reliable view to be formed of the opinions of the local indigenous community on the matter in issue. The formal decision of the meeting is contained in the following resolution, unanimously passed:
“That the name ‘E.S. NIGGER BROWN’ remain on the stand in honour of a great sportsman and that in the interest of the spirit of reconciliation, racially derogatory or offensive terms will not be used or displayed in future. This community affirms that it does not and will not condone any form of discrimination towards any peoples.”
The wording of the resolution can be said to convey an undercurrent of concern at the public usage of the word “Nigger” in the name on the stand. The applicant relies on that to show that the trustees’ decision was an “act … done because of race” within s 18C(1)(b) in that it caused concern to indigenous people. But that undercurrent is not present in the general run of comments made at the meeting and recorded in the detailed minutes of what took place. Nor is it reflected in the evidence of Mr Rose and Ms Thorley about what occurred at this meeting. The resolution does not, I think, capture the sense of what the various speakers said. Almost all, including a number who apparently regularly attend the Oval, stated their absence of objection to the name on the stand. One view, fairly widely expressed, was that the name of the stand was not directed at Aboriginal people but was a person’s nickname and, as such, could not be regarded as having a derogatory meaning.
There is no reason why I should confine my attention to the formal resolution passed at this meaning in so far as that might be thought to throw light on the views of the Aboriginal community: the meeting was simply of a group of indigenous citizens, not of an organisation such as a council or a corporation which can only act by formal resolution and whose decisions must therefore be gathered from the terms of the resolutions passed by their governing bodies. Despite the terms of the resolution, I am not therefore prepared to find that the use of the word “Nigger” in the sign on the stand at the Oval does, in fact, give offence to members of the Toowoomba indigenous community, apart, that is, from the applicant and members of his immediate family.
I accept that Mr Hagan personally became increasingly offended at the presence of the word “Nigger” in the name of the stand at the Oval during his attendances at the Oval. But the evidence as to the word being the long-established nickname which Mr ES Brown went by throughout most of his life and by which he was widely known in the Toowoomba community, as a respected member of that community, makes it difficult to find that the objective test contained in s 18C(1)(a) is satisfied with respect to the use of the word complained of here: even if the nickname was originally bestowed on Mr Brown in circumstances in which the word had a racial or even racist connotation, the evidence shows that his nickname had lost that connotation within the wider Toowoomba community many decades before Mr Hagan made his complaint. This is, I think, demonstrated by the evidence I have referred to of the views widely held in the Toowoomba Aboriginal community about the sign, including the views expressed at its meeting on 29 July 1999.
The applicant does not contend that the display of the word “Nigger” in the context of Mr Brown’s name in the sign was itself racially motivated or was a deliberate racist gesture. As I understand his case, he does not dispute the view presented by the mass of evidence that, the long use by Mr Brown himself of the nickname as part of his common name and its widespread recognition among the Toowoomba community as identifying him and the incorporation of that word in Mr Brown’s name on the sign marking the stand as commemorating Mr Brown and his achievements, all show that the word in that particular context has long ceased to have any racial connotation, even if it once did have that. His objection is to the use of the word, irrespective of its context, as an invariably offensive act.
The evidence from witnesses of Aboriginal descent of their own views and as to the views of a larger grouping of indigenous members of the Toowoomba community about the acceptability of the use of the word “Nigger” in the particular context here in question is a combination of direct evidence by members of the particular group said to be offended by the act that each witness was not, in fact, offended and opinion evidence by them as to the likely response of other members of that same group who did not themselves give evidence to the use of the word in the particular context here in question. That opinion evidence was put before me without objection and goes to the same issue opened up by the applicant’s own opinion evidence as to the likely impact of the use of the word “Nigger” here in question on indigenous Australians other than himself and his family. I consider all this evidence is relevant to whether the trustee’s decision comes within s 18C(1)(a). See ss 78 and 80 the Evidence Act 1995 (Cth).
The objective circumstances by reference to which it must be determined whether the act possesses the necessary quality of offensiveness to bring it within s 18C(1)(a) include too, the following facts: the sign has been on public display at the Oval for forty years; the Oval is a heavily frequented venue and many persons of Aboriginal descent must have observed the sign over those years. The past forty years is a period during which sensitivities to and readiness to speak out about racially offensive behaviour have become increasingly sharper and more pronounced among people in the general Australian community, as well as among indigenous people. This is evidenced, by way of example, by the enactment of the Racial Discrimination Act itself, the volume of litigation under that Act since 1975 and by the comments of the Minister in his second reading speech of 28 November 1994 on the Bill that resulted in the introduction of s 18C into the Racial Discrimination Act. Despite all this, at no time during this long period has there ever been any objection to this sign by anyone, apart from the applicant.
The circumstances of the word’s use also include the fact that it appears in a sign as an integral part of the name of a person who is clearly being honoured by having his name publicly applied to the stand. That is, the word “Nigger” is used in the context of giving public recognition to the achievements of a particular person associated with the Athletic Oval and the sporting activities carried on there. Visitors unaware of Mr ES Brown’s personal history would, I think, take this into account in evaluating the message conveyed by the word “Nigger” in that context: I think they would be more likely to see the display of the word in this context as public recognition of a particular person’s perceived civic worth by the community than they would be to read it as a show of racist bigotry or insensitivity. This is a consideration that tells against the proposition put in argument on behalf of the applicant (but without any evidentiary support) that an uninformed visitor might think that that use of the word conveyed a racially offensive connotation.
On the evidence before me and when regard is had to the context in which the word “Nigger” complained of here is used, something required by the words of s 18C(1)(a), I do not consider that the applicant has established that the trustee’s decision is an act reasonably likely in all the circumstances to offend, insult, humiliate or intimidate an indigenous Australian or indigenous Australians generally.
No do I accept that the applicant has established that the trustees’ decision was an act “done because of the race … of the people in the group” within s 18C(1)(b). This is a further reason why the application, in so far as it is based on s 18C, must fail.
I have rejected the applicant’s contention that the resolution passed at the community meeting of 29 July 1999 is evidence of a body of opinion in the Toowoomba Aboriginal community that the use of the word “nigger” here in question is offensive to members of that community. The applicant’s alternative case under s 18C(1)(b) is that the trustees’ decision was, on the respondent’s own evidence, only made because of the views which they ascertained members of the Aboriginal community held to the effect that it was appropriate to keep the sign in place. That fact, it is said, is sufficient to show that the trustees’ decision was causally related to the race of a group of people, viz, indigenous members of the Toowoomba community.
It can be accepted that at least one of the reasons the trustees had for making their decision to keep the sign in place was related to race in the sense that they acted as they did because they formed the opinion that the general view of the local indigenous community was that maintenance of the sign was not regarded as offensive to them on any ground, racial or otherwise. But to give s 18C(1)(b) such a mechanical application is to ignore the statutory context and purpose of s 18C. It is in Part IIA of the Act headed “Prohibition of Offensive Behaviour based on Racial Hatred”. It is necessary to take this heading into account in seeking the true meaning of s 18C(1)(b): that heading is part of the statutory context of the phrase, “act done because of the race …”, in this sub-section. See s 13(1) the Acts Interpretation Act 1901 (Cth) and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, where it was said at 408 that “the modern approach to statutory interpretation … insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise …”. An act done by a person only after he or she has in good faith taken care to avoid offending the members of a racial group and which, when done, is not, on an objective view, likely to offend members of that group is not, in the context of Part IIA of the Racial Discrimination Act, an “act done because of the race of” any of the persons in that group within the meaning of that expression in s 18C(1)(b). That s 18C(1)(b) should not be given the wide meaning upon which the applicant relies is supported by the Explanatory Memorandum accompanying the Bill which resulted in the inclusion of s 18C in the Racial Discrimination Act by Act No 101 of 1995 and by the Minister’s second reading speech on the Bill. Regard can be had, in seeking the true meaning of s 18C to this material by force of ss 15AA and 15AB(1)(b)(i) and (ii) the Acts Interpretation Act. The Memorandum states:
“The Bill addresses concerns highlighted by the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. In doing so, the Bill closes a gap in the legal protection available to the victims of extreme racist behaviour.
…
The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas. …
The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin.
…
… the civil prohibition in clause 6 of the Bill [ie, s 18C] addresses acts done because of race, colour or national or ethnic origin, otherwise than in private, which are reasonably likely to offend, insult, humiliate or intimidate people. … The proposed prohibition on offensive behaviour based on racial hatred would be placed within the existing jurisdiction of the Commission to conciliate and/or determine complaints alleging breaches of the RDA. This victim-initiated process is quite different from the criminal offence regime where the initiative for action generally involves police and prosecution authorities.”
The Minister, in his second reading speech, said: “The Bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour.”
It would give s 18C an impermissibly wide reach to interpret it as applying to acts done specifically in circumstances where the actor has been careful to avoid giving offence to a racial group who might be offended. The applicant’s case based on s 18C and the trustees’ decision of 8 July 1999 fails. For similar reasons, if the act of the trustees said to infringe s 18C is described as their conduct in keeping the sign in place unaltered, the applicant also fails to make out his case.
The applicant relies on s 9(1) the Racial Discrimination Act as a second basis for fixing the respondent with liability under the Act. It provides:
“It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”
This section is not directed to protecting the personal sensitivities of individuals. It makes unlawful acts which are detrimental to individuals, but only where those acts involve treating the individual differently and less advantageously to other persons who do not share membership of the complainant’s racial, national or ethnic group and then only where that differential treatment has the effect or purpose of impairing the recognition etc of every human being’s entitlement to all the human rights and fundamental freedoms listed in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination or basic human rights similar to those listed in Article 5. See s 9(2) the Racial Discrimination Act and Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 471 and 475 - 477.
In the Macedonian Teachers’ Association case, Weinberg J held that the phrase “based on” in s 9(1) should not be read as requiring a causal relationship between the act complained of and race, etc, but should rather be read as meaning “by reference to”, ie, as capable of being satisfied by a less direct relationship than that of cause and effect. Although s 9(1) does not require proof of a subjective intention to discriminate on the grounds of race (though that would suffice), there must be some connection between the act and considerations of race. As Weinberg J points out at 512, even though an act may not be done with a racially discriminatory motive, if it in fact operates to treat the members of a particular racial group less favourably than the community generally, it can fairly be described to be an act based on race within s 9(1). See also Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 at 553 where Doyle CJ, with whom Bollen J agreed, said, of s 9 the Racial Discrimination Act:
“… that section is not attracted unless an act … is done which in fact produces a distinction on the base of race … and the existence of that racial discrimination is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.”
It can be accepted that s 9(1) protects the basic human right of every person who is a member of a particular racial group to go about his recreational and other ordinary activities without being treated by others less favourably than persons who do not belong to that racial group are treated by those others.
But there are a number of difficulties for the applicant in making out a case based on s 9(1). On the evidence in this case, I do not accept that the trustees’ decision to keep the sign in place unaltered was an act that involved treating members of the Aboriginal race differently, let alone less favourably, from other members of the community. I have referred to the evidence that the word complained of is only used in the sign as part of the customary identifier of a well-known and respected, now deceased member of the general Toowoomba community and that, in the context of that use, it has long ceased to have any racial or racist connotation (if it ever did have that). I have referred to the evidence confirming this to the effect that the general view of the Toowoomba Aboriginal community is that the use of the word complained of in this particular context causes no offence to such persons considered as a racial group.
Even if, contrary to what I believe to be the case, the act of the trustees can be said to have been based on race, that can be so only in the sense that racial considerations provided the, or at least one motive for the doing of the act. But since those racial considerations were taken into account to satisfy the trustees that maintenance of the sign would not give offence to Aboriginal persons generally, as distinct from offence to Mr Hagan personally, it cannot be said that the act, even if based on race, involved any distinction etc having either the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom of the kind referred to in s 9. Only Mr Hagan’s personal feelings were affected by the act. Because there was no distinction etc produced by the act capable of affecting detrimentally in any way any human rights and fundamental freedoms, there was no racial discrimination involved in the act.
The application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate:
Dated: 10 November 2000
Counsel for the Applicant: DG Eliades Solicitor for the Applicant: Drakopoulos Black Counsel for the Respondent: D O'Gorman Solicitor for the Respondent: Gilshenan & Luton Date of Hearing: 6 November 2000 Date of Judgment: 10 November 2000
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