Kelly-Country v Beers

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
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO; 46PH; 46PV
Acts Interpretation Act 1901 (Cth), s.13 (1); 15AA; 15AB
International Convention on the Elimination of All Forms of Racial Discrimination
International Covenant on Civil and Political Rights for Freedom of Expression and Association

Bropho v Human Rights and Equal Opportunities Commission [2004] FCAFC
Bryl v Nowra, Unreported, HREOC, Commissioner Johnston, 21 June 1999
Jones v Scully [2002] FCA 1080
McGlade v Lightfoot [2002] FCA 1457
Creek v Cairns Post Pty Ltd [2001] FCA 1007
Jones v Toben [2002] FCA 1150
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Western Aboriginal Legal Service Ltd v Jones [2000] MSWADT 102

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

1. That the application filed on the 15^th 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

1. 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. 

2. 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. 

3. 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…