Kelly-Country v Beers
[2004] FMCA 336
•21 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLY-COUNTRY v BEERS & ANOR | [2004] FMCA 336 |
| HUMAN RIGHTS – RACIAL VILIFICATION – Performance of comedy monologue by person purporting to be Aboriginal – whether performance reasonably likely to offend – whether done in good faith – whether artistic work. PRACTICE & PROCEDURE – Application by Aboriginal and Torres Strait Islander Social Justice Commission and acting Race Discrimination Commission to appear as amicus curiae pursuant to section 46PV of the HREOC Act – leave to appear granted. Racial Discrimination Act, ss.9; 18C; 18D Bropho v Human Rights and Equal Opportunities Commission [2004] FCAFC |
| Applicant: | JOHN MORRIS KELLY-COUNTRY |
| Respondent: | LOUIS BEERS |
| Intervener: | THE ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER |
| File No: | DZ 5 of 2003 |
| Delivered on: | 21 May 2004 |
| Delivered at: | Darwin |
| Hearing date: | 3 November 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person: | Mr J Kelly-Country |
| The Respondent in person: | Mr L Beers |
| Counsel for the Intervener: | Ms K Ellison |
| Solicitors for the Intervener: | Human Rights and Equal Opportunity Commission |
ORDERS
That the application filed on the 15th of April, 2003 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DZ 5 of 2003
| JOHN MORRIS KELLY-COUNTRY |
Applicant
And
| LOUIS BEERS |
Respondent
And
| ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER |
Intervenor
REASONS FOR JUDGMENT
Introduction
These proceedings concern the interpretation and application of Part IIA of the Racial Discrimination Act (hereinafter referred to as the RDA). This part of the RDA was inserted by the Racial Hatred Act 1995 and prohibits offensive behaviour involving the hatred of other people on the grounds of their race, colour or national or ethnic origins.
The applicant in the proceedings is JOHN MORRIS KELLY-COUNTRY. He describes himself as an Aboriginal Activist. The respondent to the proceedings is LOUIS BEERS. He is a professional comedian, who performs under the stage name “King Billy Cokebottle”. In the guise of King Billy Cokebottle, Mr Beers purports to be an Aboriginal person and performs a comedy monologue. Mr Beers himself is not Aboriginal. Some of Mr Beers’ performances, as King Billy Cokebottle, have been recorded on both video tape and audio tape. The tapes are available for purchase by members of the public.
Mr Kelly-Country has purchased two of these tapes. The first is an audio cassette entitled “King Billy Cokebottle – The Dirty Dozen”. The second is a video cassette entitled “King Billy Cokebottle – Gibbit Five”. This latter video cassette is a recording of a performance given by Mr Beers before a paying audience at the Townsville Rugby League Club.
Mr Kelly-Country has listened to and viewed both these tapes. As an Aboriginal person, he finds them offensive and humiliating. He asserts that Mr Beers has breached section 18C of the RDA, which renders it unlawful for a person to do an act, otherwise than in private, if, firstly the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and, secondly the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
In particular, Mr Kelly-Country alleges that:
“The respondent portrays Aboriginal persons as rude, stupid, unable to pronounce longer words, unable to speak English properly, dirty, ill educated, always drunk (or at least always drinking), and always swearing. And
the respondent in his performances refers to matters involving aspects of sacred tribal activities which should be discussed only by and in the presence of initiated Aboriginal male persons.”[1]
[1] See the applicant’s affidavit filed the 15th of April 2003 at paragraphs 12 and 13
Mr Beers does not dispute that he mimics an Aboriginal person in his various performances. However, he asserts that he personally has no intention to offend or insult any person or group of any particular race, colour or ethnic group and his performances are devised to provide amusement for a diverse audience, including Aboriginal people. He does not believe that any reasonable person would find any aspect of his performances offensive.
In his written submissions to the Court, Mr Beers asserts:
“All my material is based on my life’s experiences having grown up, worked and travelled, embracing Aboriginal people. I do not mock Aboriginal people. I mimic them, breaking down the barriers. I see the results of this by the response I get at my live shows, all of which Aboriginal people attend and enjoy. They are obviously the ones with a sense of humour and realise that the characters I talk about are fictional and that the show is done in good faith.”[2]
[2] See respondent’s submissions dated the 13th of October 2003
Neither party was legally represented in this case and neither is legally qualified. Although he does not specifically argue as such, it is clear that Mr Beers relies on the exemption provided by section 18D(a) of the RDA which reads as follows:
“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; ….”
In essence Mr Beers’ argues that he performs his act as King Billy Cokebottle in good faith and it is an artistic work within the meaning of section 18D of the RDA.
Accordingly, this case principally turns on the application of section 18C and section 18D of the RDA to the two items complained of by Mr Kelly-Country.
Background
In a formal sense, the application is brought by Mr Kelly-Country (hereinafter referred to as the applicant) pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (hereinafter referred to as the HREOC Act), claiming that he was a victim of offensive behaviour contrary to section 18C of the RDA. As has already been indicated, the person alleged by the applicant to have contravened the RDA is Mr Beers (hereinafter referred to as the respondent).
As a result of his concerns, on the 25th of July 2002, the applicant lodged a complaint against the respondent with the Human Rights and Equal Opportunity Commission. The President of the Commission terminated this complaint on the 18th of March 2003 pursuant to section 46PH(1)(i) of the HREOC Act. This provision authorises the President of the Commission to terminate a complaint if the President is satisfied that there is no reasonable prospect of a complaint being settled by conciliation between the parties.
Thereafter, on the 15th of April 2003, the applicant instituted proceedings in this Court. In his application, Mr Kelly-Country seeks the following orders:
(1)An order preventing the respondent from making recordings offensive to Aboriginal people under the name King Billy Cokebottle or otherwise;
(2)An order preventing him from using racially offensive material in his live shows;
(3)A public apology;
(4)A financial penalty;
(5)Compensation for humiliation suffered to the applicant by the offensive conduct of the respondent.
Pursuant to section 46PO(4) of the HREOC Act, if the court is satisfied that there has been unlawful discrimination, in contravention of the provisions of the RDA, it may make any of the following orders:
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.
As has already been indicated, the applicant takes offence at two particular tapes created by the respondent. It appears that copyright in respect of these two tapes resides, at least in part, with Sony Music Entertainment (Australia) Limited and Sony Music Video Enterprises Limited. Clearly, some of the orders potentially available to the applicant in this case have the potential to affect the rights of third parties.
Neither party to the proceedings has formally sought to join any entity associated with Sony Music to these proceedings. The respondent indicated that he had discussed the proceedings with Sony Music, the publisher and distributors of the various audio and video cassettes created by him. However, none of the various corporate identities associated with Sony Music has elected to intervene in the proceedings.
Notwithstanding these difficulties, it is expedient to resolve the issue of the application of the RDA to the material to which the applicant has taken offence now. At a later stage, it may be necessary for any other of the owners of the copyright of that material to be informed of the outcome of the proceedings, so they may make submissions as to the appropriateness of any order sought to be made pursuant to section 46PO of the HREOC Act.
On the 10th of July 2003, Dr William Jonas, the Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner sought to appear in these proceedings as amicus curiae pursuant to the provisions of section 46PV of the HREOC Act. In both of his positions, Dr Jonas is designated a special purpose Commissioner by virtue of section 46PV(3) of the Act. Section 46PV(1) of the Act provides as follows:
A special-purpose Commissioner has the function of assisting the Federal Court and the Federal Magistrates Court, as amicus curiae, in the following proceedings under this Division:
a) proceedings in which the special-purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;
b) proceedings that, in the opinion of the special-purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;
c) proceedings that involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the special-purpose Commissioner to assist the court concerned as amicus curiae.
Dr Jonas has formed the view that each of the criteria as specified in section 46PV(1) of the HREOC Act have been satisfied. The leave of the Court for him to exercise his functions as amicus curiae in these proceedings was granted by the Court on the 16th of July 2003.
Dr Jonas did not seek to lead any evidence in these proceedings or cross-examine either of the parties involved. He did however make submissions, both in writing and orally, through his counsel, Ms Ellison, in respect of the interpretation of sections 18C and 18D of the RDA.
The evidence
As has already been indicated, neither the applicant nor the respondent were legally represented in these proceedings. As a consequence, both prepared their own affidavit material.
The applicant relied on the following affidavits:
i)Two affidavits sworn by himself and filed on the 15th of April 2003 and the 1st of August 2003 respectively.
He did not call any other witnesses in his case or rely on any other affidavits.
The respondent relied on the following affidavit:
i)An affidavit sworn by himself and filed on the 23rd of June 2003.
He did not call any other witnesses in his case besides himself. He did however file some written submissions.
Dr Jonas was represented by Ms Ellinson of Counsel. Dr Jonas did not file any affidavit material but relied on submissions made on his behalf by Ms Ellinson. In particular, Dr Jonas did not seek to comment in respect of the contents of the video and audio tapes to which the applicant takes offence and asserts are unlawful, as a result of the provisions of the RDA.
Mr Beers lives in Townsville in Queensland. He did not personally attend the court proceedings in Darwin on the 1st of November 2003. However, arrangements were made for him to attend court by means of a telephone link from Townsville. Each party briefly cross-examined the other and I asked some questions of each of them. Ms Ellinson chose not to cross-examine either of the parties. Inevitably, the main component of the evidence was, for obvious reasons, the contents of the video and audio cassettes of Mr Beers’ performance in the character of King Billy Cokebottle.
Prior to the proceedings of the 1st of November 2003, I asked both Mr Kelly-Country and Mr Beers if they objected to me watching and listening to the audio and video tapes in question in advance of the formal hearing of the proceedings. Both indicated that they had no difficulties in this regard.
The video tape entitled “King Billy Cokebottle – Gibbit Five” was played in Court on the 1st of November 2003. Mr Kelly-Country was provided with a control for the video cassette recorder, which he stopped as the tape was played, in order to provide his comments on the contents of the tape.
Mr Kelly-Country did not wish the cassette “King Billy Cokebottle – The Dirty Dozen” to be played in Court, as he found it degrading to himself to listen to it again. He said this:
“I don’t really want to go through that cassette tape. I think it is going to be exactly the same – almost exactly the same just the other way – I mean, degrading all the way through even though we have written it all down but it’s almost the same as the tape but not exactly the same but it’s almost the same degrading all the way through that I find offensive.”[3]
[3] See transcript of proceedings of the 3rd of November, 2003
Neither Mr Beers nor Ms Ellinson required the audio tape to be played in open Court. Obviously, Mr Beers was intimately acquainted with its contents. Ms Ellinson indicated that she had listened to the audio tape, as had I. In those circumstances, I elected not to have the audio tape played in Court.
Mr Kelly-Country’s position
Mr Kelly-Country’s position can be put succinctly. He objects to Mr Beers’ performances in their entirety, so long as those performances are largely taken up with Mr Beers assuming the character of King Billy Cokebottle. In Mr Kelly-Country’s submission, King Billy Cokebottle cannot be taken by any reasonable audience to be anything other than the portrayal of an Aboriginal person, by reason of his costume and accent. In the character, Mr Beers applies black stage make-up to his face and arms and applies an unkempt white beard and moustache to his chin and upper lip, as well as what appears to be a white or ceremonial ochre stripe across his nose and cheek bones. In addition, King Billy Cokebottle wears a battered, wide brimmed hat, of a kind often associated with Australian, particularly Aboriginal people, who live in a rural or outback setting.
From the applicant’s perspective, the effect is to create a character who is attempting to appear to be a traditionally orientated Aboriginal elder. The name of the character itself, the applicant finds offensive, as the absurdity of the name “King Billy Cokebottle” holds Aboriginal people generally up to ridicule and suggest the Aboriginal people are somehow simple or less intelligent than other members of the community because of their names. This impression is extenuated by the language used by Mr Beers, whilst in the guise of the character of King Billy Cokebottle. The character speaks in “Kriol” English[4], mispronouncing many common English words. In Mr Kelly-Country’s view, the performance amounts to an improper expropriation of Aboriginal character by a person of European extraction, which as such, is calculated to hold Aboriginal people up to mockery and contempt. The character has no redeeming qualities and the performance is calculated to humiliate Aboriginal people by associating them with an absurd caricature of themselves. The fact that this act of expropriation is committed by a non-Aboriginal person deepens Mr Kelly-Country’s sense of offence and he finds it to be demeaning to him personally, as well as to other people who share an Aboriginal extraction. In particular, he believes that, the characterisation of Mr Beers, amounts to a mockery of Aboriginal elders and to be insulting of them and of the position of respect, which they traditionally hold in Indigenous society.
[4] See the Australian Oxford Dictionary 1999 Edition, which defines kriol as follows: “A creole spoken by Aborigines in the North of Australia. [origin “alteration of creole.”]
It is the applicant’s position that the characterisation of King Billy Cokebottle by Mr Beers, deliberately presents Aboriginal people in a stereotypical light, and so is calculatedly designed to buttress the attitudes of racially prejudiced members of Australian society against Aboriginal people generally. This is true not only of the character of King Billy Cokebottle himself, but also of other of the characters to whom Mr Beers refers in his performance. These characters include Morton and other members of the Gibbit family, particularly Morton’s wife, Giddigan. All these characters are apparently related to King Billy Cokebottle. Mr Kelly-Country argues that these names are manipulations of Aboriginal surnames and again are designed to insult and ridicule Indigenous people. He takes particular exception to the name Giddigan, which he characterises as either a corruption or linguistic reference to the word “gin”, which, as is well known, is a term particularly offensive to Aboriginal women. The various members of the Morton family are particularly feckless and often appear in court. None of them appear to be in regular employment and they seem to drink to excess, appearing to glorify the consequences of intoxication.
As is well known, the introduction of alcohol to indigenous societies in the Americas and the Pacific between the seventeenth and twentieth centuries had devastating consequences for those societies. In Australia, those consequences are still being felt by Aboriginal communities throughout the country. In these circumstances, Mr Kelly-Country finds it offensive that Mr Beers portrays Aboriginal characters as being happily and mindlessly in the thralls of alcohol. It is Mr Kelly-Country’s perception that the character of King Billy Cokebottle drinks spirits throughout the performance video taped at the Townsville Rugby League Club and so conveys the impression that Aboriginal people generally are foul mouthed drunks.
It is also Mr Kelly-Country’s perception that, whilst in the guise of King Billy Cokebottle, Mr Beers makes reference to traditional Aboriginal initiation practices involving male circumcision. These references are made in a pseudo humorous context and, as such, hold these practices, which are at the heart of Aboriginal spiritual belief, up to ridicule and are so deeply offensive to an Aboriginal man such as himself.
In short, it is Mr Kelly-Country’s position that Mr Beers’ performance offends, insults, humiliates and intimidates Aboriginal people generally as it presents them as belonging to an infantile and stupid under class of drunks and law breakers. As such, Mr Beers’ act is designed, either tacitly or consciously, to promulgate racist attitudes towards Aboriginal people amongst its audience in the wider Australian community, by its portrayal of such stereo-typical characters.
Mr Beers’ position
Mr Beers’ position can also be put succinctly. He is a stand-up comedian, who performs in hotels and other licensed premises. There is a cover charge to attend his performances. The nature of stand-up comedy, particularly at such venues, is that it often contains material of a ribald nature, which will inevitably be offensive to some person or other. However, the likely patrons of such venues and of his act in particular are under no illusions as to what is the nature or content of the act and are under no compulsion as to whether they will attend it or not, or indeed whether they will purchase one of his video or audio cassettes. In addition, any prospective purchaser of one of his video or audio cassettes will be made aware of its likely contents by its packaging, which contains a warning.
In Mr Beers’ contention, comedy, by its very nature, creates humour by mocking subjects that are intrinsically serious. These topics include Alzheimers’ Disease, cancer and suicide, to specify the ones chosen by Mr Beers’ himself and are all suitable vessels for comedic invention. No particular subject should be off-limits or “taboo” to a comedian because of its subject matter. These topics include Aboriginal people and their experiences in Australian society. Mr Beers’ argues that his act is comical and satiric and designed to make his audience laugh and nothing more. Certainly, it is not his position that he intends to hold Aboriginal people up to ridicule.
Mr Beers’ deposed that he grew up with Aboriginal people in Western Australia and later worked with Aboriginal people in both the north west of Western Australia and in Nhulunbuy in the Northern Territory. He is not of Aboriginal extraction himself but from his long association with Aboriginal people has learnt to mimic their speech patterns and idiom. A chance meeting with a radio producer in the early 1970’s led to an invitation to perform on a Perth radio station in November of 1972, and the beginning of his career as what can be termed an Aboriginal impersonator. His act was apparently popular on the radio and was syndicated to other radio stations throughout Australia.
In 1991, Mr Beers’ moved from Perth to Townsville and discovered that pirated tapes of his radio performances were being sold in North Queensland. These were of poor quality and accordingly he decided to release audio tapes of his own. These were also popular and were widely distributed. As a result of the circulation, there were demands for him to perform live. In his radio performances, Mr Beers’ apparently did nothing to dissuade people from forming the belief that he himself was anything other than of Aboriginal extraction. Accordingly, when he began to perform his act in front of a live audience, he felt the need to paint himself black to keep the illusion alive that he was in fact Aboriginal. Again, it is Mr Beers’ position that he adopts the black stage make up as a costume in order to create the character of King Billy Cokebottle, who is obviously Aboriginal. In doing so, he can be compared to Barry Humphries, who dresses in female attire to create the illusion that he is Dame Edna Everage, a figure of farce. Mr Beers deposed that in donning his costume as King Billy Cokebottle and creating the illusion that he is Aboriginal, it is not his intention to offend or ingratiate himself with any particular section of his audience but rather to bring Aboriginal and non-Aboriginal people together through comedy and the farcical or absurd situations, which he creates for the character of King Billy Cokebottle. Mr Beers’ deposed in his evidence that when asked “off-stage” about his ethnic origins, he never fails to disclose the true details of his background. He takes pride in the fact that he has an apparent ability to persuade members of his audience that he is Aboriginal and sees this illusion as part and parcel of his act.
Mr Beers’ concedes that there is a great deal of profane language in his live performances and in some of his audio and cassette tapes. However, he submits that such language is integral to his act and the milieu where it is performed. He also argues that in the types of venue where he performs, alcohol and drunkenness are frequently the topic of humour by other stand-up comedians besides himself. Indeed alcohol, drunkenness and general profanity are the staples of stand-up comedy, particularly in licensed premises.
Mr Beers’ also points to the fact that ethnic characteristics and indeed stereo-types are the basis of much popular humour. He points in particular to so-called Irish jokes and the work of the well known comedian Dave Allen, who mimics an Irish patois in the delivery of some of his jokes. In Mr Beers’ submission, there is little point in making an “Irish” joke or indeed any other joke based on an ethnic characteristic, without an ability to mimic the accent or intonation of the people concerned in the joke. That is part and parcel of the humour. Essentially, he argues that Aboriginal people are in no different position to any other racial group or indeed any other potential subject matter for the comedian. Everything and everyone is an appropriate subject for comedy. This of itself makes it inevitable that a comedian may wish to imitate an Aboriginal person in his act. In this regard, Aboriginal people are in no different category to Jewish, Irish, Indian people or indeed any other racial or ethnic group. Mr Beers’ particular background and abilities have given him an ability to imitate Aboriginal people and not members of some other ethnic group. This ability and the requests he received to perform before a live audience have led him to devise and perform his act in the way he currently does. If he had grown up and lived in New York or London or somewhere else, the subject matter of his act would inevitably have been different. In that sense, the derivation of his act was accidental and not motivated by some ulterior motive and certainly not by a desire to incite racial hatred against Aboriginal people per se.
It was Mr Beers’ evidence that Aboriginal people make up a significant proportion of the audience to his live performances and individual Aboriginal people have expressed their appreciation and enjoyment of his performance. However, he concedes that his act may not be to everyone’s taste and indeed may be deeply offensive to many. That, however, is the nature of humour and in an act such as his, gives it its savour.
He also conceded that there were risks inherent in using Aboriginal people as the vehicle for humour, particularly by a non-Aboriginal person, given the general position of social disadvantage some Aboriginal people suffer in Australian society. However, it was the thrust of Mr Beers’ evidence that his act does not transgress the fine line between humour and gratuitous offence, because of his knowledge and understanding of Aboriginal people and the difficulties which confront some of them in regards to some aspects of Australian life. At least this was how I interpreted this passage of his evidence:
“…the reason I took up this character, and I would say that if anybody else even contemplated doing what I do, that doesn’t have my background with Aboriginal people and everything else, I think they would find themselves in trouble very early, because it’s a very fine line, but I know what side of the fine line I’m on, …I mean, in several of my stand-up shows I’m always running in to Aboriginal people. They have only come up and passed comments of what a good job I do, you know, and how I can mimic them. And I mean, I don’t expect someone like Mr Kelly to come along and pay money to be offended, …that is why you’ve got the freedom of choice to do what you want to do. And I mean I have had a few critics come along and said well I have looked. I’ve come along with an open mind and walked away saying well, you really have just broken down the barriers, and being a spokesperson under disguise of being a comedian. You know of course, Mr Kelly wouldn’t accept that. He would just want me totally non-existent, and of course that really is a restraint of trade as far as I am concerned…”[5]
[5] See pages 19 and 20 of the transcript of proceedings of the 3rd of November, 2003
Essentially, I believe the main thrust of Mr Beers’ evidence was that through his experience of living and working with Aboriginal people throughout some of the more remote areas of Australia, as well as having learnt to imitate their patterns and mode of speech, he has developed an affection for Aboriginal people and the difficulties, which they collectively face. Accordingly, therefore, his humour, although not to everyone’s taste, is well intentioned and not motivated by any desire to offend, insult, humiliate or intimidate Aboriginal people but rather is motivated by affection. To boil it down to a simple phrase, Mr Beers asserts that he is laughing with Aboriginal people not at them. In this fundamental regard, he is totally at odds with Mr Kelly-Country. When Mr Beers’ speaks of “restraint of trade”, I take it he is referring to his entitlement to freedom of speech.
The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner
The Aboriginal and Torres Strait Islander Social Justice Commissioner does not have a position as to whether or not Mr Beers’ performances, either live or as recorded on audio or video tape, are unlawful or otherwise pursuant to the provisions of Part II of the RDA. His involvement in these proceedings was restricted to assisting the Court through his Counsel, in respect of the application of the provisions of this part of the Act, to the facts of the case, as the Court finds them.
The contents of the tapes
a) King Billy Cokebottle – Gibbet Five!
The cover of the video tape (below) largely speaks for itself. As Mr Beers contends, it does indeed contain a warning that the video itself contains “explicit content”. The two figures on the cover are obvious caricatures of Aboriginal people. Both wear mismatched thongs and each is smoking and holding what appears to be a beer can. The figure wearing the “bush” hat most closely resembles the character of King Billy Cokebottle, as portrayed by Mr Beers, in the video itself. The character in the baseball hat appears to be the character Morton. This being the name on the cap. He appears rather simple looking and, to my eye, rather simian in portrayal. The expression “gibbet five” appears to be a corruption of the expression “gimme five”, which is an invitation to slap hands in greeting, a practice that apparently began amongst Afro-Americans in the United States and has subsequently enjoyed a wider currency world wide. I can well understand why an Aboriginal person, on seeing the video cassette cover would have an expectation that the video inside would not contain material particularly flattering to Aboriginal people generally. The cover itself does not suggest sophisticated satire or humour.
Although it is not desirable that I embark upon a discourse upon the nature of humour, it is necessary for there to be some brief analysis of the contents of the tape, to which Mr Kelly-Country takes exception.
On viewing the tape, there can be no doubt that Mr Beers is attempting to convey the impression that King Billy Cokebottle is an Aboriginal person. This is clearly apparent from his stage make-up, costume and manner of speech. The persona of King Billy Cokebottle himself, is assertive and confident in manner. Throughout the act, he creates the humour and is in control of the audience and the situation throughout. Many of the punch lines are unexpected and clever. The jokes he tells, follow the conventions of the Music Hall and Vauderville but predominantly of the nightclub stand-up comedian. The jokes are “blue” in flavour and often rely on double entendre. In that sense, the act is not particularly novel. King Billy Cokebottle invariably scores the last laugh. He is something of a self-appointed but crude and blunt wiseacre, who is keen to pinprick the shibboleths of the wowser or of those who hold positions of authority in society. On his arrival on stage, King Billy Cokebottle announces that in the past he: “took the piss out of coppers, the priests, politicians - lets fuckin’ do it again.” In this opening statement, the character indicates that, so far as he is concerned, nothing and no-one is immune from his mockery. To some degree, the appeal of the character is that he is plain speaking and anti the establishment. In himself, King Billy Cokebottle does not portray an image of hopelessness or powerlessness. In addition, in the telling of his jokes, he is clearly not without intelligence. In short King Billy Cokebottle is neither subservient nor stupid. He is however gross and crude in language and seeks to poke fun at institutions many hold sacred. These include the Police and organised religion of all denominations. King Billy Cokebottle does not seek to disguise that it is his intention to give offence to many people and institutions in his performance. It is also clear that, to a large extent he hopes to appeal to the prejudices of his audience. However, it would be absurd to think that the purpose of the act is to have a rational discourse about anything serious.
The first major joke in the tape concerns King Billy Cokebottle and Morton. They are walking around Charters Towers and come upon a disused mine shaft. They are curious to see how deep the shaft is. As a result, they throw a variety of objects down the shaft, the last of which is a railway sleeper, which appears to the abandoned. As they hear no sound of the railway sleeper hitting the bottom, the shaft is obviously very deep. Suddenly, they hear a frightening sound behind them and are confronted by an enraged goat, charging towards them. They are greatly alarmed and duck for cover. Sometime later, a man comes over the hill and asks them if they have seen his goat. They answer they have seen a huge and wild goat with enormous horns. The man replies: “that cannot be my goat, he was tame and tied to a railway sleeper”. It is an old joke but well told. It has no racial content, apart from the identity of its teller. Its humour is created by the unexpected transformation of the goat in the punch line and the audience’s realisation of the goat’s undeserved fate. As with very many of King Billy Cokebottle’s jokes, it could be told by a performer of any racial identity or background.
The second joke concerns Morton and his dog, which eats someone else’s hat at the Rugby League Club, causing great annoyance. Morton is King Billy Cokebottle’s invisible sidekick and often the butt of King Billy’s superior intelligence and insight. Although unseen, Morton by implication is also Aboriginal, because of his relationship to King Billy himself. The use of such a sidekick is, of course, a well known comedic convention. Mr Beers compares Morton’s role in his act to that of Ernie Wise, in Morcombe and Wise. The owner of the eaten hat complains to Morton about the dog’s behaviour. The punch line to the joke is a pun on the confusion Morton has between the word “attitude” and the phrase “hat he chewed.” It is an old joke again, with no racial content. Morton may be regarded as slow in confusing the two phrases.
The third major joke on the tape, is the circumcision joke, to which Mr Kelly-Country takes particular exception. Another unseen member of the Gibbet family is the butt of the joke in King Billy’s monologue. Cousin Gottet goes to a surgeon for a circumcision operation. Why he requires the circumcision operation is not explained and does not matter to the punch line of the joke. However, it is clearly a surgical process which is involved. The surgeon concerned misunderstands his instructions and performs a sex change operation by mistake. The operation cannot be reversed and the surgeon must explain his error to the unfortunate patient concerned. Cousin Gottet is understandably upset at the news of his emasculation and asks the surgeon if this means he will never have another erection. The surgeon replies: “ you can have thousands of them, but none of them will be yours.”
To many, this would be a tasteless and unnecessarily crude joke. However, it is absurd in its content and could be told by a character of any nationality or ethnic characteristic and have the same effect. The offence is caused by its ribald punch line. Although the ethnicity of the character telling the joke and the victim of the surgeon’s error are Aboriginal, the joke does not depend on their Aboriginality or the importance of circumcision in Aboriginal ritual practices for its punch line. Rather the joke depends for its success on the surgeon, who has ruined Cousin Gottet’s life, enjoining Cousin Gottet to take another, rather crass view of his misfortune. Granted, it is an offensive joke in many ways, but it would be difficult to see how the joke itself incites any feelings of hatred for Aboriginal people generally. It is clearly not a reference to any traditional Aboriginal practices. Any reasonable hearer of the joke would realise that it is just that, a joke.
What follows then is a series of jokes which have as their various butts, catholic priests, used car salesman, New Zealanders, lawyers and a group of people collectively referred to as “preachers”. King Billy Cokebottle, in a joke about the wreck of the Titanic, suggests that all catholic priests are paedophiles.
Morton is the protagonist of several of these jokes. In one of them, he and a priest have a car accident. The accident is Morton’s fault. The priest is understandably annoyed and becomes very agitated. Morton offers him some brandy in an attempt to calm him. The priest will not be calmed and Morton keeps plying him with brandy. Finally, the priest suggests to Morton that, as there is not much brandy left, he should have some himself. Morton replies: “I had better not, the coppers are coming.” Mr Kelly-Country objects to this joke, as in his contention it suggests that Aboriginal people are drunkards and as a result involved in car accidents. Clearly, alcohol is a central theme of the joke, but in its use, Morton actually outsmarts the sanctimonious priest and is able to escape blame for the accident, which he caused. Accordingly, the joke is about the triumph of the little man in adversity, who succeeds by reason of his quick-wittedness by turning the wrath of authority onto itself.
Another joke also involves Morton and a priest. The joke is announced by King Billy Cokebottle saying: “I’ll give one more bash at the bloody religion bit.” Morton has apparently been drinking heavily and smells of cheap perfume. He sits next to a priest on the bus and innocently asks him what is the cause of arthritis. The priest relies that it is caused by excessive alcohol consumption and womanising. He then asks Morton, why he is asking. Morton replies: “I heard the Pope suffers from it”. Again, the joke is an old one. Again, although it clearly involves an Aboriginal person drinking, the butt of the joke is the wowser, whom Morton outsmarts. Accordingly, a picture is painted of Morton being a person who suffers from the weaknesses of the flesh, but who has an innate quick wittedness. Although simply in some things, Morton is not a fool. He deflates the pompous and self-satisfied priest. He is an everyman, with human frailties rather than a victim.
As has already been indicated, Mr Kelly-Country takes particular exception to the jokes, which involve female members of the Gibbet family. Most of King Billy Cokebottle’s jokes regarding women are misogynistic and vulgar in the extreme. They involve suggestions that women nag, are promiscuous and greedy. Men generally, and husbands in particular, are invariably the victims of female behaviour. Once again, King Billy follows the convention of the stand-up comedian in this regard. For example, Morton is being chased by the police. They eventually catch him and explain to him that his wife has fallen out of the car. Morton replies “thank God for that, I thought I had gone deaf”. King Billy Cokebottle asks “what an earthquake, a fire, a flood and a woman have in common.” The answer is that sooner or later one of them will get your house. In another joke, Morton comes upon a genie in a bottle, who offers him a wish, upon being released from his bottle. Morton suggests that he would like world peace, particularly in Bosnia and Somalia. The genie protests that, as he has been in the bottle for a thousand years, he is out of practice and besides he has no idea where either Bosnia or Somalia are. As a result of his uncertainty, the genie asks Morton for an easier wish to perform. At this, Morton suggest that the genie should make his wife Gidigan, more beautiful. On hearing this request, the genie asks Morton to get him a map so he can see where Bosnia and Somalia are. The implication being, of course, that Gidigan is so ugly that she cannot be transformed by magic.
The jokes told by King Billy Cokebottle about women are the staples of the blue comedian, who is performing in a louche venue. The jokes are offensive. Many women, in particular, would find his jokes offensive, outdated and condescending and stereotyping of women generally. They are designed to be offensive. The central issue is whether the jokes become more offensive because they are told by a person who is purportedly Aboriginal about another Aboriginal person. However, as with many of King Billy Cokebottle’s jokes, the joke works regardless of the Aboriginal content. Neither Morton nor Gidigan have to be Aboriginal for the genie joke to work. King Billy’s Aboriginality is incidental to the joke. Take away his costume and stage make-up and he is another stand-up comic making a rather hackneyed joke about an ugly wife, one of the stock-in-trade situations of Vaudeville. Against this is the central tenet of Mr Kelly-Country’s case, that jokes of this kind nonetheless invite a largely non-Aboriginal audience to laugh at and mock Aboriginal women, who are, by implication, invariably ugly. In making the joke in this way, Mr Beers subliminally appeals to the prejudices of his audience against Aboriginal people generally and incites hatred or loathing of them in the audience.
King Billy Cokebottle is not discriminating about the groups of people at whom he pokes offence. He makes jokes about New Zealanders; the Prince of Wales; lawyers; and female police officers, who operate breathalyser machines; to name but a few. In these jokes he suggests that New Zealander’s are stupid and have sexual intercourse with animals; that lawyers are dishonest and will not be admitted to heaven; that the Prince of Wales is stupid; and that female police officers are promiscuous. The jokes are a mixture of innuendo, pun and crudity. There is no doubt that the jokes are designed to appeal to popular prejudices and conform to the stereotypical views in King Billy Cokebottle’s audience. In Australia, it is a comedic convention that New Zealanders frequently have sex with sheep. However, I doubt that any members of King Billy’s audience genuinely believe this or will be persuaded to believe it by reason of the joke.
Some of the jokes do have more of a racial content than others. For example, Morton is suffering from a rash. He goes to a person, who is described as a witch doctor. He is told that the only cure for the rash is to kill one of his friends, boil him up and then extract the fat from him for application to the rash. Morton does just this and his rash is cured. He goes to thank the witch doctor for his advice and asks him what the remedy is called. The witch doctor replies, “I don’t know what I call it, but the white man calls it palomine lotion.” This is a stupid joke. Mr Kelly-Country objects to it because it suggests that Aboriginal people are gullible, stupid and violent. The joke is clearly surreal in its narrative. Its punch line an unexpected play on words.
Immediately after this joke, King Billy Cokebottle commiserates with the audience about the state of Australian society at the present time. He bewails the violence and lawlessness in Australian society. The punch line to his commiseration is: “you’ve really got to wonder about our immigration policy two hundred years ago, don’t you?”. At an earlier stage, a priest invites Morton to consider becoming a catholic. Morton replies: “I’ve got enough problems already, I’m black.” These are jokes, which to a certain extent, invite the audience, if only for a moment, to consider the implications of European settlement of Australia for Aboriginal people. However, these are appeals are made subtly, within the comedic conventions of the performance.
Mr Kelly-Country takes offence that Morton, in particular, is often presented in the jokes in a criminal situation. This is so. On one occasion Morton is doing some cat burgling. He breaks into a house and hears a voice which says, “me and Jesus are watching you.” Morton spins around in the direction of the voice and sees a parrot in his torch beam. He asks, “did you say that?” The parrot confirms that he did and Morton asks him what his name is. The parrot replies Herman. On this, Morton retorts that: “Herman is a silly name for a parrot.” To which the parrot replies, “not as stupid as a rottweiler, named Jesus.” I do not believe that the joke derives its strength from the suggestion that all Aboriginal people are criminal. The joke is in the absurdity of the talking parrot and Morton’s sudden realisation of the danger he is in from a savage guard dog. In my view, it is drawing a long bow to suggest that King Billy Cokebottle is sending a subliminal message to his audience that all Aboriginal people are criminals. The joke works regardless of Morton’s ethnic identity. In this respect, King Billy makes a vulgar joke about New Zealanders. “What’s hard and fucks Kiwis? - Primary School”. The joke works, if it works at all, because of the double entendre, not because it invites the audience to laugh at New Zealanders per se because of their suggested inability to complete rudimentary education. Any ethnic identity can be inserted into the joke and it will not necessarily loose its impact. In my view, such a joke does not necessarily become more offensive if told by a New Zealander. In some circumstances, the teller and the butt of a joke sharing a common ethnicity may even soften the circumstances of a joke, making it become a case of laughing with, rather than laughing at, the subject matter of the joke. Mr Kelly-Country suggests that an Aboriginal comedian may have a greater licence in his jokes about Aboriginal people and their circumstances than a non-Aboriginal comedian, such as Mr Beers. Certainly many comedians are well known for making what are sometimes regarded as affectionate jokes involving their own ethnic background. In this regard Woody Allen and Nick Giannopoulous spring to mind, as well as the disabled comedian, Steady Eddy.
In another example, Morton is up before the magistrate on a charge of making liquor with an illicit still. The pompous magistrate indicates to Morton: “well, Morton, on the grounds of having the equipment I hereby find you guilty”. Morton replies, “alright, you might as well charge me with rape”. The magistrate asks “are you confessing to that as well?” To which Morton replies, “no, but I’ve got the equipment.” Again, although the context of the joke relies on the fact that Morton is in court charged with a criminal offence, he outwits the magistrate with his quick thinking and makes him the butt of the joke by his rather clever analogy.
b) King Billy Cokebottle - The Dirty Dozen
The cover to the audio tape (below) is similar in theme to the video cassette cover, as is its contents. Many of the jokes are vulgar and in questionable taste. Again King Billy Cokebottle makes jokes at the expense of rabbis, catholic priests, gay people and New Zealanders. In my view, many members of the Australian community would find the contents of the tape deeply offensive. Other than the portrayal of the characters on the tape cover itself, it is less obvious that King Billy Cokebottle is Aboriginal during the hearing of the audio tape.
However, once again, Morton features throughout much of the tape. In one joke, Morton is caught by the police for speeding. The police officer asks to see his licence. Morton replies that he doesn’t have one, as he been disqualified because of drink driving. The police officer then asked to see the registration papers for the car. Morton replies that he does not know where they are because he stole the car. However on reflection, Morton indicates that the car may be registered, because he saw some papers in the glove box when he put his gun in there. On this, the police officer asks Morton why he has a gun. Morton replies that it is to do with the dead body in the boot. On this, the police officer becomes greatly alarmed and calls for reinforcements. When the police inspector turns up, Morton promptly hands him his driver’s licence, the registration papers for the car and reveals that both the glove box and the boot are empty. The inspector is perplexed and says that he has been told by his junior officer that Morton is an unlicensed driver, in a stolen car, with a gun in the glove box and a body in the boot. To which Morton replies, “yeah and the next thing he will be trying to tell you was that I was speeding.” The theme is the same as in some of the other jokes in the previous tape. Once again, Morton gets out of trouble by being clever and outwitting authority. The joke would work just as well if Morton was not Aboriginal but a larrikin of Caucasian background.
One joke on the second tape struck me as being different in quality to the other material on the tape because it referred to Aboriginal people in a specific social setting, namely the Centrelink office and the placement of Aboriginal people in employment in Moree, picking cotton. In the joke, Morton attends Centrelink and asks if there is a job available for him. The assistant at Centrelink operates a computer, which produces a number of acronyms which have to be interpreted to see if there is a job for Morton. The first acronym is BIMM. This apparently refers to the BIMM Corporation. Morton asks where in particular the job is located. The computer produces the acronym HY, which is interpreted by the assistant as meaning Hawaii. Naturally, Morton wants to know what sort of job it is specifically. The computer produces the acronym BAR. He is told that this means that he will be working as a bar attendant for the BIMM Corporation. This is a prospect, which delights him and as a result, he asks what the pay is. The computer reveals the words PCT. He is told this means percentage of cash take. At hearing this information, Morton retorts, “a percentage of the cash take…I’ll be a millionaire on a good days trade on Thursday.” Thursday is the day on which many recipients of social security payments receive their payments. Morton is delighted with the job, which he understands he has received. However, leaving the office, he meets the manager of Centrelink. The punch line of the joke is that the more junior assistant has misinterpreted the acronyms which really means “Be in Moree Monday, have your black arse ready, picking cotton Tuesday.” (BIMMHYBARPCT).
Discussion
It is not particularly useful to detail each and every joke told in either of the two tapes. I have tried to set out the general flavour and themes of both of the tapes. I accept that some person or other, will inevitably find some or all of the jokes offensive. The humour is often vulgar and punctuated by profanities, which inevitably will offend someone’s sensibilities. I accept that Mr Kelly-Country certainly finds the tape offensive. So too may many rabbis and catholic priests. Certainly some women and gay people will find many of the jokes deeply offensive. However, as a stand-up comedian, Mr Beers is by no means unique in his choice of material and in the selection of the categories of people at whom his humour is directed. He is also not unique in taking some pride in being able to approach any subject as a topic for humour.
As Mr Beers points out, much humour depends for its success on the audience being able to laugh at the misfortunes of others – for example, the man whose penis is removed in the botched circumcision operation. In addition, much humour relies on appealing to the popular prejudices of the particular audience concerned. In this case, King Billy Cokebottle makes jokes at the expense of a diverse group of people, including New Zealanders, police officers and lawyers. Members of each group concerned may find something offensive in each joke directed against them. It is not particularly useful for me to go through the two performances with a metaphorical blue pencil and identify all the jokes that have the potential to offend some person or group of persons. It can be taken as a given that the vast majority of the jokes have the potential to offend someone or other. Rather, I have to determine whether the tapes are unlawful because of the provisions of RDA and the complaint of Mr Kelly-Country. However, in the context of this case, a number of complicated and subtle issues arise, because of the identity of Mr Beers and his assumption of an Aboriginal persona in the form of King Billy Cokebottle.
It is Mr Beers evidence, which I accept, that the character of King Billy Cokebottle was created because of his personal ability to mimic Aboriginal people and their mode and idiom of speech. This gift for mimicry led to his radio career and later to a stage act. Because he was performing live, Mr Beers felt the need to maintain the illusion that he was an Aboriginal person in his act. It is Mr Beers’ position that once he had created his comededic alter ego, it was necessary for him to produce material for the character. Much of the material is the standard patter of a “blue” stand-up comedian. Essentially, I accept that the jokes followed the character of King Billy Cokebottle, rather than that King Billy Cokebottle was created as a device to tell the jokes. As I have pointed out, much of the material performed by Mr Beers does not of itself have a racial flavour, other than that the jokes are delivered by a person who purports to be Aboriginal and the subject of many of these jokes is also an Aboriginal person, albeit one, who often outwits some other person, usually a figure of authority in the joke concerned. If this element of Aboriginality is removed from Mr Beers’ act, it becomes a risque, but otherwise unexceptional act of stand-up comedy.
Does the characterisation of the person telling the jokes, inevitably flavour the jokes themselves. In this regard, Mr Kelly-Country indicated that initially, when he heard Mr Beers act on the radio and thought he was in fact an Aboriginal person, he did not find the material offensive. He also conceded that a comedian, such as Ernie Dingo, had more of a licence to make a joke about an Aboriginal topic than a non-indigenous comedian did. In this context and the context of the legislation generally, is there a difference between “laughing at” and “laughing with” the person about whom the joke is told. Does the fact that it is a non Aboriginal person, who is telling these jokes whilst pretending to be “Aboriginal” change the quality of the joke and inevitably invite the audience to believe that the jokes are an act of mockery of Aboriginal people and an incitement to despise them. Is the social disadvantage of Aboriginal people generally so great in the overall Australian community that for a non-Aboriginal person to tell jokes with an Aboriginal setting it must inevitably be offensive. Is the expropriation of an Aboriginal persona by a non-Aboriginal person, in itself an act of racial humiliation. Are some of the jokes less offensive than others or does the mode of their delivery infect the entire performance.
The applicable law
This application is to be determined according to Part II A of the RDA. This part was inserted into the RDA by the Racial Hatred Act 1995 (Commonwealth). The heading of the Act is as follows: “An Act to prohibit certain conduct involving the hatred of other people on the grounds of race, colour or national or ethnic origin, and for related purposes”. Pursuant to section 13 (1) of the Acts Interpretation Act 1901 (Commonwealth) headings are deemed to be part of the Act concerned.
Pursuant to section 15AA of the Acts Interpretation Act, regard is to be had to the purpose or object of an act in the interpretation of that act. To this end, pursuant to section 15AB of the Acts Interpretation Act, regard may be had to material extrinsic to the act concerned, such as its second reading speech or any explanatory memorandum prepared in respect of it.
The central section of the RDA is section 9. It provides that 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 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”. Accordingly section 9 speaks of human rights arising from various fields of “public life”. The section is a ratification of the various political and civil rights that are set out in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to which Australia is a signatory.
Article 4 of CERD deals specifically with the issue of racial hatred and requires the states that are party to the Convention to take steps to eliminate incitement to acts of racial discrimination. It reads as follows:
“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or groups of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitements to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the universal declaration of human rights and the rights expressly set forth in article 5 of this convention, interalia:
a)shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
b)shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law;
c)shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”
Other international conventions, of which Australia is a signatory, most notably the International Covenant on Civil and Political Rights for Freedom of Expression and Association, protect freedom of speech and association. It is easy to envisage situations where there will be a tension between the rights of individuals to gather and espouse unpopular causes and the rights of other groups and individuals to be free from the threat of intimidation and vilification on the basis of their racial or ethnic origins.
As His Honour Justice French pointed out in Bropho v Human Rights and Equal Opportunities Commission[6]:
“The convention article which underpins Part II(a) of the Racial Discrimination Act allows states to strike a balance between the need to prohibit the evil of racial vilification and hatred and the need to protect freedom of speech and association within reasonable limits. Part II(a) reflects a like balance in the prohibitions imposed by section 18(C) and the exemptions it allows by section 18(D).”
Accordingly, the standard provided by section 18C of the Act is an objective one, which must be applied by reference to prevailing community standards.
[6] Bropho v Human Rights and Equal Opportunities Commission [2004] FCAFC delivered 6 February 2004
In the second reading speech of the Racial Hatred Bill before the House of Representatives on 15 November 1994, the then Attorney-General, Mr Lavarch said as follows:
“The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of racial hatred, which inevitably leads to violence…The bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin...
The bill requires an objective test to be applied by the commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.[7]”
[7] Hansard Tuesday 15 November, 1994 p. 3336 & 3341
In the explanatory memorandum to the Bill was written the following:
“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.[8]”
[8] Racial Hatred Bill Explanatory Memorandum p. 1
Subsection 18C(1) of the RDA provides that:
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 group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
Subsections 18C(2) and (3) provide as follows:
(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
(b)is done in a public place; or
(c)is done in 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.
In this case, for obvious reasons, there can be no suggestion that any of the acts complained of by Mr Kelly-Country occurred in private.
Section 18D deals with various exceptions to section 18C, which can be broadly described as containing general exemptions from the section in order to protect personal right to freedom of speech in the context of artistic performances or debate and discussion of matters of public interest.
In particular section 18D reads as follows:
“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.”
Again these are areas that pertain to areas of public life. It should be noted that when the Racial Hatred Bill was introduced into Parliament, there was considerable debate as to whether or not its provisions would unduly restrict freedom of speech. It is also clear that the Act itself is not concerned with acts or conversations that take place in private. Clearly Parliament wished to protect private conversations from the reach of section 18C. Mr Lavarch said as follows in the second reading speech:
“The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people. The law has no application to private conversations. Nothing which is said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for an academic, artistic or scientific purpose in the public interest will be prohibited by the law.[9]”
[9] Hansard Tuesday 15 November, 1994 p. 3337
To borrow from His Honour Justice French in Bropho v Human Rights and Equal Opportunities Commission[10], this case:
“raises the question of the appropriate balance, in the Racial Discrimination Act, between the prohibition of racial vilification and the protection of freedom of expression and, in particular, the statutory requirement of reasonableness and good faith in the exercise of that freedom.”
Are the contents of the tapes reasonably likely to offend, insult, humiliate or intimidate another person or group of people
[10] Bropho v Human Rights and Equal Opportunities Commission supra at paragraph 3
Section 18C requires the Court to first determine whether the content of Mr Beers’ act in the video and audio tapes are “reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people”. The test is an objective one. This is clear from the use of the words “reasonably” and “in all the circumstances”. It is also made clear by Mr Lavarch’s comments in the second reading speech, when he said as follows:
“The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of racial hatred, which inevitably leads to violence…The bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin...
The bill requires an objective test to be applied by the commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.[11]”
[11] See Hansard Tuesday 15 November, 1994 pages. 3336 & 3341
Accordingly, the intention of the person perpetrating the act complained of is not relevant. Thus an act that would be otherwise unlawful is not excused if its originator meant no offence by it. Accordingly, in the event that I accept Mr Beers’ evidence that he did not intend to offend or humiliate anyone of an Aboriginal background in the course of his performances, this is not of itself a relevant consideration.
Mr Kelly-County makes his complaint as an Aboriginal person, who is also an Aboriginal Elder. It is not necessary for each and every Aboriginal Elder to be adversely affected by the contents of Mr Beers’ act.
Mr Kelly-Country also describes himself as an “activist”. As Mr Beers correctly points out, it is possible that such an activist may search out material for the purpose of being offended and so may be regarded as being unduly susceptible or even an agent provocateur in respect of the material complained of. Therefore, the fact that Mr Kelly-Country himself was deeply offended by Mr Beers’ various performances does not itself render the act unlawful. Accordingly, the response of the complainant to the act complained of must itself be reasonable and by implication proportionate. A mere slight or insult is insufficient. This is the so-called “reasonable victim” test.
However, in applying the reasonable victim test, which as the former Attorney-General indicated, is to be informed by community standards, it is also necessary to consider the relative historical or socioeconomic situation of the group of persons to which a complainant belongs. Thus a New Zealander, who takes offence to some of Mr Beers’ material, is likely to be in a different position to an Aboriginal person. All communication takes at least some part of its meaning from the context in which it is set. This is a central part of Mr Kelly-Country’s case.
He argues that it is well known that Aboriginal people have suffered and continue to suffer considerable social disadvantage in Australian society. They also suffer a higher level of incarceration and alcoholism than other ethnic groups within Australian society. Accordingly, the community standards about jokes which involve Aboriginal people and say, for example, Caucasian New Zealanders, are likely to be different. In this context, Mr Kelly-Country argues that it is not sufficient for Mr Beers to say that his act is merely a long succession of jokes.
In applying the reasonable victim test, it is obviously necessary to apply a yardstick of reasonableness to the act complained of. This yardstick should not be a particularly susceptible person to be aroused or incited, but rather a reasonable and ordinary person and in addition should be a reasonable person with the racial, ethnic or relevant attributes of the complainant in the matter.
As the test to be applied is an objective one, it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question.[12] However, in this case, clearly Mr Kelly-Country feels that he has been offended, insulted, humiliated and intimidated by Mr Beers’ performances. But, it is not necessary for him to bring forward other evidence from other people who share his social background as an Aboriginal Elder as to their offence. However, in applying the reasonable victim test, the Court must have regard to the likely cultural sensitivity of the group to which Mr Kelly-Country belongs.
[12] See Jones v Scully [2002] FCA 1080 at paragraph 99
In my view, this is clearly the most difficult aspect of the case. No doubt, if a New Zealander brought a complaint about the content of Mr Beers’ act, in particular the joke concerning “kiwis” and primary school, he or she would be quickly dismissed as being unduly thin skinned. However, for obvious reasons, a joke about a historically oppressed minority group, which is told by a member of a racially dominant majority, may objectively be more likely to lead to offence. As a result, a joke told by an Aboriginal person about other Aboriginal people may not be so likely to transgress the provisions of the RDA, because the teller of the joke itself and its subject are not in a situation of power imbalance, but are each members of the same subset of disadvantaged people. The curious thing in this case is that Mr Beers’ portrays himself as an Aboriginal person and so, to some extent King Billy Cokebottle is himself the victim of racial stereotyping. In addition, Mr Kelly-Country himself admits that he found no offence in the act, when he believed that King Billy Cokebottle was in fact Aboriginal.
In addition, in assessing the “reasonableness” of the act complained of, it is also necessary to look at all the circumstances surrounding it. Mr Beers’ is a stand-up comedian, whose act is specifically designed to be performed in licensed premises. His taped material contains warnings as to its explicit content. By comedic convention, stand up comedians make vulgar jokes, which are often regarded as being in poor taste. Any prospective audience member or purchaser of the tapes is likely to be aware, in general terms, of the nature of Mr Beers’ act. In other words that neither the tapes nor the act itself are likely to be for the faint hearted or especially sensitive. Humour to be effective must often sting and insult. It would, in my view, be unreasonable and necessary consequence of the Racial Discrimination Act for all humour, especially stand-up humour, to be rendered anodyne and innocuous by virtue of the provisions of the Act.
In a number of the relevant cases, attempts have been made to define the identity of groups of persons, who may objectively taken to be offended by the particular acts to which complaint has been taken. In McGlade v Lightfoot[13], a case which concerned a statement made by a politician to a journalist, namely “Aboriginal people in their native state are the most primitive people on earth”, His Honour Justice Carr defined the relevant group for the purposes of section 18C as “an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture”.
[13] McGlade v Lightfoot [2002] FCA 1457 at paragraph 42
Creek v Cairns Post Pty Ltd[14] was a case which concerned the reporting of a decision by the Queensland Department of Families in respect of the placement of an orphaned Aboriginal child with a particular family. In its reporting of the story, the newspaper concerned published two contrasting photographs, one showing a conventional living room with a couple seated in it, the other showing an open air bush camp with a lean-to shelter and open fire. In that case, the group concerned was defined by Her Honour Justice Kiefel as “an Aboriginal mother, or carer of children, residing in the applicant’s town.”
[14] Creek v Cairns Post Pty Ltd [2001] FCA 1007
Jones v Toben[15]was a case concerning the publication of material on the internet, the import of which was to deny the extent of the Holocaust. In that case, at first instance, Her Honour Justice Branson defined the relevant subset of people as “member of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability.”
[15] Jones v Toben [2002] FCA 1150
As I have already indicated, reference must also be made to the historical and social context in which the particular group finds itself at the time of the complaint, in order to argue the objective reasonableness of any act about which complaint is made.
In Kazak v John Fairfax Publications Limited [16], a decision of the New South Wales Administrative Decisions Tribunal, the Tribunal said as follows:
“Communications about an historically oppressed minority group are far more likely to cause harm to that group than communications which relate to the dominant majority…for example, the same words uttered about white Australians may not have the same effect as when they are said about Indigenous Australians. Palestinians (and Arabs in general) as well as Israelis (and Jews in general) are both groups which have been traditionally been the target of racism. While the legislation protects all racial groups from vilification, the identity of the racial group being targeted may mean that similar acts in respect of one group are less likely to incite hatred etc than the same acts in respect of another racial group.”[17]
Clearly, Aboriginal people have been the subject of racial discrimination and prejudice throughout the European settlement of Australia. As a result, they are likely to be more sensitive about jokes directed towards them, as they are members of a minority group, which is significantly socially disadvantaged.
[16] Kazak v John Fairfax Publications Limited [2000] NSWADT 77
[17] See Kazak v John Fairfax Publications Limited supra at paragraph 66
However, the setting of the particular communication or act complained of must also be analysed. A statement by an Australian Senator to a journalist employed by a nationally circulating newspaper is clearly different to a joke exchanged between two friends in the public bar of a hotel. The former has a clear political context and the latter is an exchanged act of entertainment. Mr Beers’ act and tapes are designed to be entertaining for members of a paying audience, which has a choice whether or not to attend the performances or buy the tapes concerned. They do not have an explicit political content. Clearly, the jokes told by Mr Beers are not intended to be taken literally. However, any joke by its nature, has the potential to hold at least someone up to scorn or ridicule. Accordingly, there may be situations when a joke does objectively incite racial hatred.
It is Mr Kelly-Country’s submission that the intent of Mr Beers’ material, either overtly or subliminally, is to send a message from a Caucasian Australian to other Australians, who share his ethnic identity that all Aboriginal people are stupid, lazy, criminal and drunken, notwithstanding the ostensible fiction and humour of the act. The issue therefore is whether ordinary Aboriginal people within Australian society, who do not have any particular sensitivities or aspirations to political activism would take the act and tapes as such, rather than as examples of “blue” or otherwise ribald humour in questionable taste. In my view, this is the appropriate definition of the required subgroup of Aboriginal people. As Mr Beers’ material circulates throughout the country generally, it is not appropriate to place any geographical limitation on the group other than that implicit in the phrase “Australian society”.
The words “offend, insult, humiliate or intimidate” are to be given their ordinary English meanings.[18] Their definition in the shorter Oxford English Dictionary include:
“offend – to vex, annoy, displease, anger, now especially 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 especially to force to or deter from some action by threats or violence.”
[18] See Jones v Scully (supra) at paragraph 102
As His Honour Justice French remarked in Bropho:[19]
“the lower registers of the preceding definitions and in particular those of “offend” and “insult” seem a long way removed from the mischief to which article four of CERD is directed. They also seem a long way from some of the evils to which part IIA is directed as described in the second reading speech.”
[19] Bropho v Human Rights and Equal Opportunities Commission (supra) at paragraph 68
However, all the members of the Full Court of the Federal Court in Toben v Jones[20] were of the view that section 18C did not have to be read down so that its application was limited to cases of “racial hatred”. Accordingly, although the words must be given their ordinary English meaning, regard must be had to the objects and purposes of the entire Act. In the Cairns Post case, Her Honour Justice Kiefel considered that the conduct intended to be caught by section 18C will be conduct which has “profound and serious effects not to be likened to mere slights.”[21]
[20] Toben v Jones [2003] FCAFC 137
[21] See Creek v Cairns Post Pty Ltd (supra) at paragraph 16
In Bropho, His Honour Justice French considered:
“The criteria for determining the outer limits of the conduct caught by part IIA and the words “offend, insult, humiliate or intimidate” must be judged according to their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objective of the legislation which are to be derived from its terms and from extraneous material including the second reading speech and the explanatory memorandum. As a general principle freedom of expression is not limited to speech or expression which is polite or inoffensive.”[22]
[22] See Bropho v Human Rights and Equal Opportunities Commission (supra) at paragraph 69
Clearly, the vast majority of Mr Beers’ act and tapes are calculated to be impolite and offensive to many sections of the Australian community, including ministers of religion, women, as well as Aboriginal people. Accordingly, merely because the act is offensive and insulting does not of itself make it unlawful for the purposes of part IIA of the RDA.
As a result of section 18C(1)(b), there must be a causal connection between the act complained of and the race, colour or national or ethnic origin of the person or group of persons affected by it. In the Cairns Post case, Her Honour Justice Kiefel considered that in making an assessment as whether there was such a necessary causal connection, the Court was required to have regard to all the circumstances surrounding the act, including the nature of the conduct and the words or expressions used, so as to come to what was likely to be the true basis or true reason why a particular person had behaved in the manner complained of. This approach was approved by His Honour Justice Carr in Toben v Jones [23] where His Honour said that:
“In order to establish the prerequisite causal connection in the context of discrimination legislation regard was to be had to all the circumstances.”
[23] See Toben v Jones (supra) at paragraph 31
In this case, I accept that Mr Beers’ evidence that the persona of King Billy Cokebottle came about because of his ability to mimic Aboriginal styles of speech, which in turn is as a result of his own personal experience of living with Aboriginal people in remote communities. This in turn led to his appearances on the radio and then on stage in the character of King Billy Cokebottle. Clearly, the content of Mr Beers’ act and tapes is largely Aboriginal because of the purported identity of King Billy Cokebottle, which inevitably colours the subject matter of the entire act. However, for the purposes of section 18C(1)(b) of the RDA, does Mr Beers perform his act because of the racial attributes of Aboriginal people?
Section 18B of the RDA provides that if an act is done for two or more reasons, it is taken to be done because of the person’s race, if race is one of the reasons for the act, regardless of whether or not race was the dominant reason or even a substantial reason for the act.
In this case, I accept that Mr Beers performed his act to amuse his audience; to derive a financial advantage for himself from it; and because he had ascertained he had an ability to mimic Aboriginal people, which he wanted to put to use as a stand-up comedian. In this sense, the racial identity of King Billy Cokebottle although a necessary vehicle for these purposes was largely incidental to them. As I have already indicated, many of King Billy Cokebottle’s jokes work regardless of the ethnicity of either King Billy Cokebottle himself or the other characters which he describes. Take away King Billy Cokebottle’s ethnicity and he remains a risque stand-up comedian.
Accordingly, in all these circumstances, I have some difficulty in reaching the conclusion that Mr Beers’ performs his act because of Aboriginal people any more than I could conclude that Barry Humphries assumes the character of Edna Everage because of women in Moonee Ponds. Both perform their acts to make money; to amuse their audiences; and perhaps to make some social commentary within the comedic conventions of their respective mode of performance. Subsection (c) must be read in connection with subsection (b) namely that the offensive action is done because of the ethnicity of the intended target of the action. Mr Humphries may offend middle aged matrons from the Australian suburbs but it is drawing a large bow to assert that he adopts the persona of Dame Edna Everidge for this purpose. In my view, the situation is analogous for Mr Beers. King Billy Cokebottle is a vehicle for his particular style of comedic invention.
I accept that Mr Beers’ act and tapes are vulgar and in poor taste. I also accept that Aboriginal people are a distinct minority within Australian society and so objectively more susceptible to be offended, insulted, humiliated and intimidated because of their disadvantaged status within Australian society. However, Mr Beers’ act is designed to be humorous. It has no overt political context and the nature of the jokes or stories within it are intended to be divorced from reality. The act is not to be taken literally or seriously and no reasonable Aboriginal person, who was not a political activist, would take it as such.
King Billy Cokebottle himself does not directly demean Aboriginal people, rather he pokes fun at all manner of people, including Aboriginal people and indeed in many of his stories, Aboriginal people have the last laugh. I do not think that an Aboriginal person, who had paid expecting to hear a ribald comedic performance, would believe that the subject of either the act itself or the recorded tapes was to demean Aboriginal people generally.
The words “offend, insult, humiliate or intimidate” are open textured. In other words, their meaning covers a multiplicity of circumstances. A ribald joke may offend someone. A minister of religion may find a joke about a Catholic priest abusing a child deeply insulting or even humiliating. However, in the context of discrimination legislation, in determining the meaning of these elastic expressions, regard must be had to the objectives of that legislation and its social context.
The Racial Hatred Act was 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 origins. I do not believe that objectively an Aboriginal person would believe that either Mr Beers’ live performances or tapes would have this effect or were performed or designed to bring about such a consequence, even in a remote or subliminal manner. The performance and the tapes are comedic in intention.
Do any of the statutory exemptions provided by section 18D of the RDA apply
It is clearly Mr Beers’ position that his tapes and performances constitute an artistic work, which he has done reasonably and in good faith. As I remarked earlier, this case raises the balance between the prohibition of racial vilification on the one hand, and the protection of freedom of expression on the other, within Australian society. Two essential prerequisites to the existence of an open and democratic society but which may, from time to time have a tension between them. In protecting a person’s entitlement to freedom of expression, section 18D recognises that this freedom must be exercised reasonably and in good faith by those who hold it.
Anti-discrimination legislation is beneficial. As such, it provides remedies for disadvantaged sections of the Australian community, who previously had no ready avenues through which to seek redress for behaviour, which undermined their entitlement to racial tolerance. Such remedial legislation is to be given a liberal construction, in accordance with its purposes and objects, and, as a corollary to such liberal construction, exemptions to it should be narrowly construed. Essentially, those who would incite racial hatred or intolerance within Australia should not be given protection to express their abhorrent views through a wide or liberal interpretation of the exceptions contained within section 18D. A broad reading of the exemptions contained in section 18D could potentially undermine the protection afforded by the vilification provisions contained in section 18C of the RDA.
As has already been indicated, one of the primary purposes of part II A of the RDA is to enable Australia to comply with its obligations pursuant to the International Convention on the Elimination of All Forms of Racial Discrimination. Article 4 of this Convention condemns racial vilification; ideologies based on racial superiority; and institutionalised racial discrimination; in any form.
Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights allows for legal restrictions on freedom of speech necessary to respect the rights or reputations of others, and requires that any advocacy of racial hatred that constitutes incitement to discrimination, hostility or violence be prohibited by law. Accordingly, this Covenant, which deals with freedom of speech, recognises that it is lawful for there to be restrictions placed on this right to enable the achievement of the abolition of government policies based on racial discrimination or theories of racial superiority. It is in this context that the exceptions provided by section 18D must be considered. Accordingly, although the exceptions provided by section 18D must be construed narrowly, the conduct envisaged by CERD is extreme.
When the Racial Hatred Bill was introduced into Parliament, there was considerable debate as to whether or not its provisions would unduly restrict freedom of speech. It is also clear that the Act itself is not concerned with the acts or conversations that take place in private. Clearly Parliament wished to protect private conversations from the reach of section 18C. I have already made reference to the comments of Mr Lavarch in the Second Reading Speech in respect of the RDA.[24]
[24] See paragraph 80 (supra)
In addition to the second reading speech, reference may be had to the explanatory memorandum, which was produced when the Racial Hatred Bill was introduced. The explanatory memorandum read as follows:
“Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.
However, the operations of proposed section 18 D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so as long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.
First, there is the exemption that deals with an act that is done reasonably and in good faith in relation to artistic work. This exemption would cover both serious drama and comedy acts. Whilst some of these performances may cause offence to some people, they are presented as entertainment and are not within the scope of the prohibitions.”[25]
[25] See Racial Hatred Bill 1994 explanatory memorandum at pages 10-11
The expression “artistic work” is not specifically defined in the RDA. The Shorter Oxford Dictionary defines “artistic” as “made or done with art.” “Art” is defined as “human creative skill or its application.” Some may regard Mr Beers’ performance as being unsophisticated or crude. However, in my view, it is clearly the case that King Billy Cokebottle has come about as the result of the application of Mr Beers’ imagination. The performances captured on the audio and videotape are the result of a creative process on Mr Beers’ part. Accordingly, I have no doubt that they are to be included within the term “artistic work” as contained within section 18D of the RDA. This is also clear from the explanatory memorandum, which specifically refers to “comedy acts”.
I accept Mr Beers’ evidence that his primary purposes, in creating the tapes and performing his act, are to entertain his audience and provide him with a living as a comedian. He concedes that his work is not likely to be to everyone’s taste. For that reason, he selects the venues where he will perform and places warnings on his audio and videotapes regarding their “explicit content”.
A person performing an artistic work does not have open slather to be racially offensive. The Act specifically provides the riders that artistic works, which would otherwise transgress the provisions of section 18C, in order to secure the protections provided by section 18D, must be done both reasonably and in good faith.
In Bropho[26] His Honour Justice French said as follows:
“There are elements of rationality and proportionality in the relevant definitions of “reasonably”. A thing is done “reasonably” in one of the protected activities in par (a), (b) and (c) of section 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable.”
[26] See Bropho v Human Rights and Equal Opportunities Commission (supra) at paragraph 79
Accordingly, whether an act is done “reasonably” for the purposes of section 18D must be judged by reference to the objective circumstances of the act complained of. In Toben v Jones a case which dealt with the publication of information designed to deny the existence and extent of the Holocaust, the respondent was found to have been “deliberately provocative” and was “intending to offend” and was thus unable to satisfy the onus on him under section 18D. This led His Honour Justice Carr to state as follows:
“In the context of knowing that Australian Jewish people would be offended by the challenge which appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.”[27]
Accordingly, in construing whether an act is done reasonably, it is necessary to demonstrate proportionality between the conduct engaged in, when having regard to the degree of harm potentially, which may be inflicted by it.[28] In this context, it will not be reasonable for a “Holocaust denier” to stridently assert that the Nazi concentration camps did not exist in political pamphlets disseminated to the general public. However, in a play about Nazi sympathisers, it may be appropriate to allow a character to espouse such views for dramatic effect. The former is likely to cause great insult to members of the groups, which were the victims of the Nazi atrocities, whilst the latter is less likely to incite such strong feelings. Clearly, there is a qualitative difference between the two acts.
[27] See Toben v Jones (supra) at paragraph 44
[28] In this regard see Bropho v Human Rights and Equal Opportunities Commission per Lee J at paragraph 139
Commissioner Johnston, in the case of Bryl v Nowra[29] considered the issue of reasonableness in the context of the performance of a play containing material to which offence was taken. He considered that a judge “should exercise a margin of tolerance [in respect of such a dramatic work] and not find the threshold of what is unreasonable conduct too readily crossed.” Further the Commissioner considered that in respect of such a dramatic work:
“a fairly tolerant view [should be taken] in determining what is reasonable or not. Topics like the Holocaust can be the subject of comedy, as in the film “Life is Beautiful”, even if offensive to some Jewish survivors of concentration camps who see it as trivialising the horror of that situation. In many instances marked differences of opinion may be engendered…”[30]
[29] Bryl v Nowra, Unreported, HREOC, Commissioner Johnston, 21 June 1999. Extract at (1999) eoc 93-022
[30] Quoted in Federal Discrimination Law published by Human Rights and Equal Opportunity Commission 2004 at page 43
In the particular context of this case, I bear in mind that Mr Beers was appearing as the character of King Billy Cokebottle, who in many ways is a grotesque caricature. As such, the character has more licence than a politician or social commentator to express views. In the context of a stand-up comedy performance, the offence implicit in much of Mr Beers’ material does not appear to me to be out of proportion. I do not believe that there is a high degree of gratuitous insult, given that the comedic convention of stand-up is to give offence or make jokes at the expense of some member or members of the community. In this regard, the character does not use slang terms, which are likely to give particular offence to any particular ethnic or racial group. In my view, Mr Beers keeps his performance within the constraints and conventions of stand-up comedy and when viewed objectively, it is reasonable.
In reaching this view, I am fortified by the fact that Mr Kelly-Country himself found Mr Beers’ act amusing when he heard it on the radio and believed that it was being performed by an Aboriginal person. He became offended when he realised that Mr Beers was a Caucasian person, who was pretending to be Aboriginal. I do not consider in this context that Mr Beers’ act has the potential to do a high degree of harm to members of the Aboriginal community.
As His Honour Justice Lee pointed out in Bropho[31] :
“Humiliation or intimidation involve more than destruction of self perception or self esteem of a person. It effects others in the community by lowering their regard for, and demeaning the worthiness of, the person, or persons, subjected to that conduct. It stimulates contempt or hostility between groups of people within the community and it is the intent of the Act that such socially corrosive conduct be controlled.”
[31] See Bropho v Human Rights and Equal Opportunities Commission (supra) at paragraph 138
Mr Kelly-Country conceded that a performer such as Ernie Dingo, who has an indigenous background, has a greater licence to make jokes which have an Aboriginal content than a non-Indigenous person. Mr Kelly-Country also conceded that he initially found Mr Beers’ performances amusing. This is the difference between a performer “laughing with” as opposed to “laughing at” a particular ethnic group. Mr Beers would categorise his performances as being in the former rather than the latter category.
There is some overlap between the concept of “reasonableness” and “good faith”. The former has an overall objective flavour, whereas the latter is more subjective. It is Mr Beers’ evidence, which I accept, that he has a long association with Aboriginal people and regards them affectionately. I accept that he personally does not intend to hold Aboriginal people up as objects of mockery or contempt. This is most clearly apparent from the punch lines of many of the jokes, which sees King Billy Cokebottle having the last laugh. It is also apparent in the reference to Australia’s immigration policies of the last 200 years, one of the character’s jokes, which has a mild political flavour. In Western Aboriginal Legal Service v Jones[32], “good faith” was defined as implying “the absence of spite, ill will or other improper motive.” On a subjective basis, I accept Mr Beers’ evidence that he means no particular spite towards Aboriginal people and, indeed, many people of indigenous background have enjoyed his performances.
[32] Western Aboriginal Legal Service Ltd v Jones [2000] MSWADT 102 at paragraph 122
In Bropho[33], His Honour Justice French said as follows:
“A person acting in the exercise of a protected freedom of speech or expression under section 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that it designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of section 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its affect on people who will be hurt by it or in such a way as to enhance that hurt maybe found not to have been acting in good faith.”
[33] See Bropho v Human Rights and Equal Opportunities Commission (supra) at paragraph 102
In this case, I accept that Mr Beers has not set out in his act to gratuitously and unnecessarily offend people, beyond the conventions of the comedic milieu in which he sets himself. In particular, he chooses to perform at venues where entry is restricted and he places warnings on his various items of recorded material. In this way, he minimises potential consequences of people being insulted or demeaned by his act. A reasonable person would apprehend the likely content of both his act and his tapes before purchasing the right to view either. I also accept that subjectively, Mr Beers has an affection for Aboriginal people generally,
Accordingly, I find that Mr Beers is entitled to the protection of the exemption provided by section 18D of the RDA. It follows from these reasons for judgment that Mr Kelly-Country’s application must be dismissed.
Both the applicant and the respondent in these proceedings was self-represented. Neither of them is legally qualified. The question raised by Mr Kelly-Country raised complicated issues of law, although he himself was not fully able to argue them effectively himself. Mr Beers found himself in a similar position. The Aboriginal and Torres Strait Islander Social Justice Commissioner elected to intervene in the proceedings. In all these circumstances, it is appropriate that each party should bear his own costs. For all these reasons, the Orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C. White
Date: 21 May 2004
4
5
0