Hagan v Trustees Toowoomba Sports Ground Trust

[2002] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2001

B e t w e e n -

STEPHEN HAGAN

Applicant

and

TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 1.57 PM

Copyright in the High Court of Australia

MR E. WILLHEIM:   May it please the Court, I appear for the applicant.  (instructed by Messrs Drakopoulos Black Solicitors) 

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friend, MR D.P. O’GORMAN, as counsel for the respondent.  (instructed by Messrs Gilshenan & Luton, Lawyers) 

GAUDRON J:   Yes, Mr Willheim. 

MR WILLHEIM:   Your Honours, this matter arises out of a complaint made by the applicant, first of all to the respondent and then to the Human Rights and Equal Opportunity Commission, concerning a large sign on a football stand which contained the word “Nigger”.  Mr Hagan complained that that sign was offensive.  The principal legal issue that arises is whether public display of “Nigger” on a sign is unlawful by reason of provisions of the Racial Discrimination Act. 

GAUDRON J:   Well, which ones? 

MR WILLHEIM: Sections 9, 18B and 18C.

GAUDRON J:   Was 18B ever in issue in the lower courts? 

MR WILLHEIM:   My understanding is that this is the first case to come before this Court involving ‑ ‑ ‑

GAUDRON J:   No.  Was 18B relied upon in the lower courts? 

MR WILLHEIM:   Yes, it was, your Honour.  It was relied on in the application itself, before the Federal Court. 

GAUDRON J:   Is it referred to in the judgments below? 

MR WILLHEIM:   No.  In fact, that is one of the grounds of ‑ ‑ ‑

GAUDRON J:   Is the application to be found here? 

MR WILLHEIM:   No, it is not, your Honour.  I think we can hand up a copy. 

GAUDRON J:   Is there a transcript to indicate it was relied upon before Justice Drummond? 

MR WILLHEIM:   I can hand up a copy of the original application which refers to sections 18B and C.

GAUDRON J:   Well, I will tell you how important it seems to have been to your case, Mr Willheim. Section 18B is not reproduced in the bundle of materials before the Court.

MR WILLHEIM:   It appears, your Honour, at page 1 of the bundle of materials prepared by the applicant. 

GAUDRON J: Section 18B?

MR WILLHEIM:   It is the very first page of our bundle, your Honour. 

GAUDRON J:   Yes, thank you. 

MR WILLHEIM:   So in response to your Honour’s question, it is our understanding that this is the first case before this Court to raise the construction of sections 18B and 18C. The question of whether those provisions render unlawful what we submit is probably the most racially offensive word in our language is itself a question of public importance.

GAUDRON J:   Now, how do you say the conduct falls within 18C as extended by, if you like, 18B? 

MR WILLHEIM:   We would put it this way, that 18B governs the true construction of 18C. 

GAUDRON J:   And how do you construe it? 

MR WILLHEIM:   We would construe it this way:  if one of the reasons for the doing of an act relates to colour or race – and it does not have to be the dominant reason; it does not have to be the major reason; it does not have to be the only reason – if one of the reasons relates to race, then ‑ ‑ ‑

GAUDRON J:   Well, wait a tick.  The race of whom? 

MR WILLHEIM:   Race or colour ‑ ‑ ‑

GAUDRON J:   Of whom? 

MR WILLHEIM:   In this case, the complainant.  Our submission is that when looking at this provision, one should construe it beneficially.  One should not construe it in such a way that a complainant could never make out a case. 

GAUDRON J:   Well, we can forget that, because that is not the issue.  How do you say, Mr Willheim, it is to be construed and applied in this case?  First of all, what do you say is the act done and in what way was it done because of the race of Mr Hagan? 

MR WILLHEIM:   We submit that there are two alternative ways of construing the provision and we have put two alternative submissions in the court below and two alternative constructions were also advanced at trial.  The first is that essentially the term “Nigger” was applied to Mr Brown for reasons of colour.  The suggestion is ‑ ‑ ‑

GAUDRON J:   But the colour of your client? 

MR WILLHEIM:   The suggestion is that it was because he wore shoes which were known as a colour of “Nigger brown”.  Your Honours will understand that one would not sell boot polish today with that sort of trade name. 

GAUDRON J:   Well, this is because of the colour of his boots or because of the colour of Mr Hagan? 

MR WILLHEIM:   The boots were of a colour that was known as “Nigger brown” and that is a term that is applied to black people and that black people find offensive.  We would say that, to answer your Honour’s question as to what the acts are, the relevant acts that were identified in the judgment were, I think, the refusal to remove the sign, the continuation of the sign, the broadcasting of the name of the sign on public addresses and so on.  It is our submission that one cannot treat the adoption by the Trustees of this name as a novus actus interveniens, as something which takes it away from the original ‑ ‑ ‑

HAYNE J:   So you are going away from, at least, my understanding of the way in which you were approaching the question of construction.  Can I take you back to the question of construction.  The act is the act of either maintaining the sign or the act of broadcasting the name on the sign.  Is that the full range of things that are said to constitute the act? 

MR WILLHEIM:   That is so, yes, your Honour. 

HAYNE J:   And what is the reason for that act that is a proscribed reason within either 18B or 18C? 

MR WILLHEIM:   Our submission is that one needs to construe the provisions sufficiently broadly to encompass a situation where there is a nexus or a sufficient connection.  Another way of construing it is that one looks at the effect of the act that is done. 

HAYNE J:   That is not what the Act says.  The Act says that it proscribes acts that are done because of race, et cetera. 

MR WILLHEIM:   And one interprets the language “because of” by reference back to section 18B ‑ ‑ ‑

GAUDRON J:   So there has to be some causal connection, however remote, though, does there not, between the acts done and the race of the person who is offended? 

MR WILLHEIM:   One goes back to the language – the term used in section 18B is “for”, where something is done “for” a reason, which softens the matter a little, if I can put it that way.

GAUDRON J:   But you still concede that there must be some causal connection. 

MR WILLHEIM:   My submission is that it can be satisfied if there is a sufficient link or a nexus ‑ ‑ ‑

HAYNE J:   Then that simply restates the problem, “link” or “nexus”. 

MR WILLHEIM:   Well, I come back to the proposition that a complainant – and these sorts of provisions are here to protect disadvantaged minorities – will never be in a position to prove to a court why someone doing a racially offensive act – why they did it.  So if one puts too hard an obligation on the complainant, effectively, one is saying that a provision of this kind has no practical operation. 

GAUDRON J:   Mr Willheim, that really is not true.  In many, many cases, one can infer the reason from the conduct and the context in which it occurred.  It is not an uncommon situation to be met in the criminal law, where there is even a requirement for proof beyond reasonable doubt.  You do not have that evidentiary problem. 

MR WILLHEIM:   No.  Well, this is a civil law provision. 

GAUDRON J:   But what do you say was the connection between the race of Mr Hagan – or the nexus between the race of Mr Hagan and the continuation of the sign or the broadcasting of the name on the PA? 

MR WILLHEIM:   The connection was one of colour.  It does not have to be race.  I mean, colour is one of the proscribed grounds. 

GAUDRON J:   Yes, but the colour of Mr Hagan. 

MR WILLHEIM:   That is so, yes.  He is found on the facts to be an Aboriginal Australian.  The tribe is identified.  It is beyond dispute, I think, that the ‑ ‑ ‑

GAUDRON J:   But your argument comes to this, does it not?  Any person of any colour – let us assume pink persons who are offended because of any material, including, for example, a pink truck, cement-mixer, they think you should not use the pink – and it is called “Pinky’s Cement-Mixer” – would automatically make out a complaint. 

MR WILLHEIM:   It would still need to satisfy section 18C(1)(a) and that is that it is an act that is reasonably likely to offend a group of people.

GAUDRON J:   Let us assume for the moment that I am pink, which is not a bad assumption, and I am offended and it is reasonably likely that I will be offended by a sign which says “Pinky’s Porkies”.  Now, is that made out? 

MR WILLHEIM:   The first question, your Honour, is whether “reasonably likely” imports an objective standard.  It is a community standard.  That would be a fairly difficult hurdle in the case of pink ‑ ‑ ‑

GAUDRON J:   You put all your weight on that, do you?  Now, one can well imagine that a person might well be reasonably likely, in all the circumstances, to be offended.  That is not in issue, as I understand it.  That was found in your favour.  But it is sufficient if you are of a race that identifies ‑ ‑ ‑

MR WILLHEIM:   No, your Honour, with respect ‑ ‑ ‑

GAUDRON J:   ‑ ‑ ‑ or a colour that identifies ‑ ‑ ‑

MR WILLHEIM:   With respect, your Honour, the trial judge found against Mr Hagan on (a), and that is included in our grounds of appeal.  The Full Court did not find it necessary to address (a). 

HAYNE J:   But you say, do you not, that it is sufficient to establish that the act of maintaining the sign is reasonably likely to offend, insult, humiliate or intimidate a group of people, the relevant group being Aboriginal Australians, and that that suffices to make out 18C? 

MR WILLHEIM:   Where there is a nexus or a connection, which we say is established here. 

HAYNE J:   And what is it here that is established?  Assume that it is established that the act was reasonably likely to offend Aboriginal Australians.  Assume you establish that, what then is the connection between the act of maintaining the sign and “the race, colour or national or ethnic origin” of the other person or some or all of the people in the group? 

MR WILLHEIM:    The way I would put it is that the nickname “Nigger” was originally applied for reasons of colour. The maintaining of the sign amounts to something like republication – that is an analogy – it is an adoption of that nickname, and that corresponds with the colour of the applicant. We did have an alternative submission on the way section 18C(1)(b) should be construed. That was argued at both trial and on appeal. It was rejected at trial and it was not dealt with on appeal. That is that one of the reasons the sign was retained was because of the opinion the respondent Trustees formed of the view of the local indigenous community.

Now, the relevant letter is at, I think, page 1 of the application book.  The trial judge accepted that one of the reasons of the Trustees for their decision was the view they formed of what the view of the local indigenous community was.  On a literal reading of 18C(1)(b), we say that that satisfies 18C(1)(b).  No reasons were given by the Full Court for rejecting that argument.  It was an argument put both at trial and on appeal.  One of our submissions, of course, is that failure to give reasons or adequate reasons is itself an error ‑ ‑ ‑

GAUDRON J:   Well, there is a difference, is there, Mr Willheim?  To maintain a course of attitude because of the attitude or the tacit approval of people of a particular race or colour is not to do something because of the race or colour of those people, is it not?  It is as simple as that. 

MR WILLHEIM:   It is a fine distinction, your Honour. 

GAUDRON J:   I would have thought it was a commonsense and practical distinction, but you say it is an irrelevant distinction.  You say if people of a particular race happen to have a particular opinion and you take action because of their opinion, you are taking action because of their race.  That seems to me to have an undistributed middle. 

MR WILLHEIM:   Our submission is to the contrary. 

GAUDRON J:   Yes, I understand that. 

MR WILLHEIM:   I sense that your Honours are against me on 18C(1)(b).  We did also have some submissions on costs which may become relevant.  They are essentially contained in the written submissions. 

GAUDRON J:   That is of the proceedings below, or of these proceedings? 

MR WILLHEIM:    Of all the proceedings, your Honour.  Essentially, that this began in a complaint that was made to the Human Rights and Equal Opportunity Commission.  As a result of legislative changes – the so-called Brandy amendments – Mr Hagan was not able to obtain a determination on the merits before that Commission.  The Federal Court Rules, in fact, specifically recognise the special nature of these sorts of applications.  The application itself ‑ ‑ ‑

GAUDRON J:   But he did have proceedings, though, in the Commission, did he not? 

MR WILLHEIM:   They were terminated.

GAUDRON J:   Yes, because his complaint was thought to be without merit, is that not right? 

MR WILLHEIM:   No, I do not think that is correct, your Honour. 

GAUDRON J:   Do we know why they were terminated? 

MR WILLHEIM:   They were transferred to the Federal Court as a result of the ‑ ‑ ‑

GAUDRON J:   There had been mediation proceedings, had there, and they failed? 

MR WILLHEIM:   I am instructed so, your Honour.  I was not in the trial.  The Federal Court Rules themselves identify, perhaps, the special nature of these proceedings.  They actually ask whether the applicant is legally aided.  In this case, he is not.  The proceedings concern a public right; an attempt to enforce a right under a Convention; a serious issue involving the public display of a very offensive term.  There is no personal benefit for the applicant in this and he is proceeding against a public body.  The submission is that this is not an appropriate case to award costs against an applicant.  I see the red light. 

GAUDRON J:   Yes, thank you, Mr Willheim.  We need not trouble you, Mr Keane.

We see no error in the approach of the Full Federal Court to the interpretation and application of sections 9, 18B and 18C(1)(b) of the Racial Discrimination Act 1975 (Cth). That being so, the question whether further evidence should have been admitted by the Federal Court, which is raised in the applicant’s written submissions, is academic. So far as concerns the costs of the Federal Court proceedings, that was a matter within the discretion of the Full Federal Court and is not a matter which of itself would justify the grant of special leave to appeal.

Accordingly, special leave should be refused.  We see no sufficient reason to depart from the usual practice with respect to costs in this Court.  The order will be special leave is refused with costs.

AT 2.20 PM THE MATTER WAS CONCLUDED