Kimble & Souris v Orr

Case [2003] NSWADT 49

CITATION: Kimble & Souris -v- Orr [2003] NSWADT 49
DIVISION: Equal Opportunity Division
PARTIES: APPLICANTS
Victor Kimble and Joanne Souris
RESPONDENT
Phil Orr
FILE NUMBER: 021033
HEARING DATES: 11/10/2002, 12/10/2002
SUBMISSIONS CLOSED: 01/24/2003
DATE OF DECISION:
03/11/2003
BEFORE: Ireland G - Judicial Member; Cox R - Member; Pun A - Member
APPLICATION: Race Discrimination - Accommodation - Vilification - Racial
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Anti-Discrimination Act 1977
CASES CITED: Veloskey & Anor v Karagiannakis & Ors [2002] NSWADTAP18 Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102
Kazak v John Fairfax Publications Ltd [2000]NSWADT77
REPRESENTATION: APPLICANT
D Grant, solicitor
RESPONDENT
In person
ORDERS: 1. The Tribunal directs that the Respondent pay to Mr Kimble an amount of $2,000.00; 2. There will be no order as to costs.
    BACKGROUND
    1 The Applicants to this inquiry are married. Mr Kimble is an Afro-American, born in Birmingham, Alabama, United States of America. The Applicants allege that the Respondent unlawfully discriminated against them on the ground of the race of Mr Kimble, and in the case of Mrs Souris, on the ground of the race of a relative. It is alleged that the discrimination of the Applicants was unlawful under Section 20(2)(b) of the Anti Discrimination Act 1977 ("the Act") as the alleged discrimination subjected each of the Applicants to a detriment when they sought accommodation at the Kings Bay Complex at Five Dock on 7 July 2001. It is further alleged that on that date the Respondent unlawfully discriminated against the Applicants on the ground of the race of Mr Kimble, under Section 19 of the Act in the terms on which the Respondent provided services to the Applicants on that date.

    2 In addition, the Applicants allege that the Respondent subjected them to racial vilification in breach of Section 20(C)(1) of the Act, in the circumstances arising during the incidents that occurred at the complex on 7 July 2001.

    3 Each of the complaints was investigated by the President of the Anti-Discrimination Board ("the Board"). The Board attempted to resolve the complaints through conciliation but it was unsuccessful and has referred the complaints to this Tribunal under Section 94(1) of the Act for inquiry by the Tribunal.

        RELEVANT PROVISIONS OF THE ACT
        "7 What constitutes discrimination on the ground of race
        (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
          (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or ..."

        “19 Provision of goods and services
        It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against…

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Kimble & Souris v Orr [2003] NSWADT 49
Case
[2003] NSWADT 49
Decision Date

CaseChat Overview and Summary

The case of Kimble & Souris v Orr involved the applicants seeking to have certain remarks made against them deemed as an act of incitement under the relevant legislation. The applicants, Kimble and Souris, sought to establish that the public act in question was capable of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race. The dispute was heard in the relevant tribunal, where the applicants sought to have the remarks deemed as incitement under the Act. The central legal issues the court was required to decide related to the interpretation of the term "incite" and the threshold for establishing incitement under the relevant legislation. Specifically, the court needed to determine whether the remarks were sufficiently inflammatory to incite hatred or contempt, whether the intent of the perpetrator needed to be proven, and whether the actual incitement of others was a necessary element. The court also needed to consider the appropriate characterization of the audience and the relevance of the social and historical context in determining the capability of incitement.

The court held that the word "incite" should be given its ordinary English meaning, encompassing urging, spurring on, or stimulating to action. It ruled that it was not sufficient for the words to merely convey hatred or express contempt or ridicule. The court clarified that the section did not require proof of an intention to incite on the part of the perpetrator and that it was not necessary for the applicant to prove that a person or persons were actually incited. The court emphasised that the key question was whether the ordinary reasonable reader or listener could understand from the public act that they were being incited to hatred or contempt. The court also held that race must be a substantially contributing factor for incitement, and that other grounds, while relevant, did not negate the incitement if race was a contributing factor. The court further noted that the social and historical context could be relevant to the extent that it might be presumed to be part of the ordinary reasonable person's knowledge and experience.

Based on these principles, the tribunal concluded that the remarks made against the applicants were indeed capable of inciting hatred towards them on the ground of race. The tribunal found that the nature of the remarks and the circumstances established that they were made on the ground of the race of Mr Kimble. The tribunal was satisfied that the remarks met the threshold for incitement under the relevant provisions of the Act. The tribunal's findings were based on the understanding that the ordinary reasonable reader or listener could infer incitement from the remarks, and that race was a substantially contributing factor in the incitement.

Orders

Orders of the court

* The word “incite” should be given its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate, or prompt to action. It is not sufficient if the words merely convey hatred or express serious contempt or severe ridicule.

* The section does not require proof of an intention to incite on the part of the perpetrator of the vilification.

* It is not necessary that the applicant prove that a person or persons were actually incited by the public act to respond in the requisite manner.

* In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial.

* Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader [listener] understand from the public act that he/she is being incited to hatred towards or serious contempt for, or serious ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader [listener] reach such a conclusion after his/her own beliefs have been bought into play by the public act?

* Race must be ‘a substantially contributing factor’ to be incitement. It is not sufficient if there are other, equally consistent grounds, for the incitement given that Section 4A of the Act does not apply to the vilification provisions.

* The social and historical context of a public act, including the factors referred to in the case of Kazak v John Fairfax Publications Ltd [2000]NSWADT77, may be relevant at some stage of an inquiry, albeit only to the extent that they may be presumed to be part of the ordinary reasonable reader’s [listener’s] knowledge and experience of human affairs.

63 It is clear from these statements of the construction of Section 20(C)(1) that it is not relevant to determine that the offensive remarks were provoked by the conduct of the Applicants. The Tribunal is satisfied that the nature of the remarks and the circumstances establish that the remarks were made on the ground of the race of Mr Kimble.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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