McGlade v Lightfoot

Case [2002] FCA 1457

FEDERAL COURT OF AUSTRALIA
McGlade v Lightfoot [2002] FCA 1457

HUMAN RIGHTS – RACIAL DISCRIMINATION – respondent made statements to journalist during an interview in a parliamentary office – statements published in newspaper article under that journalist’s byline – statements republished in another newspaper attributing the source as being the first article – whether respondent made those statements “otherwise than in private” – whether the making of those statements was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people – whether respondent’s act was done because of the race or ethnic origin of a person or people in the relevant group – onus of proof in relation to statutory exemption – whether in addition to the making of a declaration and an order for payment of costs, the Court should order (as sought by the applicant) the respondent to make a substantial donation to the Aboriginal Advancement Council.

Racial Discrimination Act 1975 (Cth), s 18B, 18C and 18D

Kowalski v Domestic Violence Crisis Service Inc (2001) 113 FCR 67 followed
Feghaly v Oldfield (2000) EOC 93-090 referred to
March v Stramare (1991) 171 CLR 506 applied
Alphacell Ltd v Woodward [1972] AC 824 referred to
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 applied
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 applied
Jones v Scully [2002] FCA 1080 applied
Jones v Toben [2002] FCA 1150 applied
Vines v Djordjevitch (1955) 91 CLR 512 followed

HANNAH McGLADE v SENATOR ROSS LIGHTFOOT
W568 of 2001

CARR J
26 NOVEMBER 2002
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W568 OF 2001

BETWEEN:

HANNAH McGLADE
Applicant

AND:

SENATOR ROSS LIGHTFOOT
Respondent

JUDGE:

CARR J

DATE OF ORDER:

26 NOVEMBER 2002

WHERE MADE:

PERTH

THE COURT DECLARES THAT:

The respondent has engaged in conduct rendered unlawful by Part IIA (s 18C) of the Racial Discrimination Act 1975 (Cth) by making the following statements to a journalist from the “Australian Financial Review” on or about 2 May 1997, namely:

“Aboriginal people in their native state are the most primitive people on earth”; and

“If you want to pick out some aspects of Aboriginal culture which are valid in the 21st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I’d be happy to listen to those.”

AND THE COURT ORDERS THAT:

The respondent pay the applicant’s costs other than the costs relating to written submissions faxed, without leave, to the Court yesterday seeking certain costs on an indemnity basis and the limited oral submissions to like effect made today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W568 OF 2001

BETWEEN:

HANNAH McGLADE
Applicant

AND:

SENATOR ROSS LIGHTFOOT
Respondent

JUDGE:

CARR J

DATE:

26 NOVEMBER 2002

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an application under…

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AGLC
McGlade v Lightfoot [2002] FCA 1457
Case
[2002] FCA 1457
Decision Date

CaseChat Overview and Summary

McGlade v Lightfoot involved a legal challenge brought by the applicant against the respondent under section 46PO of the Human Rights and Equal Opportunity Commission Act 1986, alleging that the respondent's conduct violated section 18C of the Racial Discrimination Act 1975. The applicant sought a declaration of unlawful conduct and an order for the respondent to make a donation to the Aboriginal Advancement Council. The alleged unlawful conduct included specific statements made by the respondent during an interview published in the Australian Financial Review and later in the West Australian newspaper. The court was tasked with determining whether the respondent's comments constituted racial discrimination and whether the Human Rights and Equal Opportunity Commission had jurisdiction to hear the complaint following amendments to the law.

The primary legal issue before the court was whether the respondent's statements, specifically those that referred to Aboriginal people as "the most primitive people on earth," constituted racial discrimination under section 18C of the Racial Discrimination Act. Additionally, the court needed to address the jurisdictional question of whether the Commission had the authority to hear the complaint after legislative amendments had shifted the hearing function from the Commission to the Court. The amendments in the Human Rights Legislation Amendment Act (No 1) 1999 were central to this issue, particularly the transitional provisions that dictated whether the complaint should proceed under the amended or unamended Act.

The court found that the respondent's comments were indeed discriminatory and constituted a breach of section 18C of the Racial Discrimination Act. It concluded that the comments were not only offensive but also disseminated harmful stereotypes about Aboriginal people, which aligns with the statutory definition of racial discrimination. Regarding jurisdiction, the court determined that the Commission retained jurisdiction over the complaint because the inquiry had begun under the Act before the amendments took effect. The court also held that the reassignment of the complaint to a different Commissioner did not alter the applicability of the transitional provisions, thus the complaint continued to be governed by the Act as it stood before the amendments.

In its final orders, the court required the respondent to pay the applicant's costs, excluding certain costs related to written and oral submissions made without leave. This decision underscored the seriousness of the discriminatory conduct and reinforced the importance of adhering to anti-discrimination laws in public discourse.

Orders

Orders of the court

The respondent pay the applicant’s costs other than the costs relating to written submissions faxed, without leave, to the Court yesterday seeking certain costs on an indemnity basis and the limited oral submissions to like effect made today.

Background

Background to the litigation

This is an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”), alleging that conduct engaged in by the respondent was unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”). The applicant seeks a declaration to that effect and an order that the respondent make a donation to the Aboriginal Advancement Council. The conduct includes certain statements attributed to the respondent and published in an article in the Australian Financial Review and republished in a further article in the West Australian newspaper. PROCEDURAL BACKGROUND On 16 May 1997, the applicant filed with the Human Rights and Equal Opportunity Commission (“the Commission”) a complaint substantially in the same terms as the complaint made in this application. On 21 January 1999, Commissioner Johnston, after hearing argument at a directions hearing as to whether the matter should be dismissed pursuant to what was then s 25X of the Act, summarily dismissed that application. The applicant applied to this Court for an order of review of Commissioner Johnston’s decision. On 18 October 2000, for reasons published on that date, I set aside the Commission’s decision of 21 January 1999 and remitted the applicant’s complaint to the Commission for decision according to law. In the meantime, on 13 April 2000, amendments contained in the Human Rights Legislation Amendment Act (No 1) (1999) (Cth) (“the HRLA Act”) came into effect. In the HRLA Act the date 13 April 2000 is referred to as “the starting day”. Section 13(1) of the HRLA Act relevantly provided that if before the starting day a holding of an inquiry into a complaint had started under the Act and the complaint had not been withdrawn, the amendments made by Schedule 1 to the HRLA Act did not apply in relation to that complaint. The relevant amendments made by Schedule 1 to the HRLA Act removed the Commission’s hearing function and conferred it on this Court. During the course of the hearing of the application for an order of review, I raised with counsel for the applicant the question of the Commission’s jurisdiction to hear her complaint if its decision were set aside, bearing in mind the amendments effected by the HRLA Act. By leave, the applicant’s solicitors faxed to my associate, after the hearing, an incomplete photocopy of portions of the transitional provisions of that Act. Neither party contended that the Commission would lack jurisdiction. I expressed the view – see McGlade v Human Rights and Equal Opportunity Commission [2000] FCA 1477 at [55] that the Commission retained jurisdiction because the inquiry had started under the Act and had not been withdrawn. I am somewhat comforted by the fact that Madgwick J independently (without having been referred to my decision in McGlade) came to the same conclusion in Kowalski v Domestic Violence Crisis Service Inc (2001) 113 FCR 67 at [17]. However, when the applicant’s complaint was remitted to the Commission, it did not go back to Commissioner Johnston (whose appointment was apparently about to come to an end), but was instead allocated to Commissioner Innes who heard the complaint on 9 July 2001 and reserved his decision. Those circumstances were relevantly identical to what had happened in Kowalski. Madgwick J handed down his judgment in Kowalski on 10 August 2001. In reasons published on that date, his Honour expressed the view that if the application in that matter, following judicial review, had been remitted to the same Commissioner then it would have proceeded under the Act as unamended by the HRLA Act. However, his Honour held that because the complaint had been referred to another Commissioner who, as at 13 April 2000, was in the process of preparing for a new inquiry, but had not commenced that inquiry, then s 13 of the HRLA Act did not apply. Accordingly, s 12(2) of the HRLA Act operated so that on the starting day the President of the Human Rights and Equal Opportunity Commission was taken to have terminated the complaint under s 46PH of the HREOC Act as amended. Section 14 of the HRLA Act, in those circumstances, required the President of the Commission to give a notice of termination of the complaint.

Evidence

Evidence Before The Court

On 4 November 2002, the respondent faxed a letter to the District Registrar of the Court advising that he wished to withdraw his “input on this matter”, that he would not be represented at “the forthcoming Directions Hearing” and that he was “currently in Iran on parliamentary business” (a commitment made several months ago) and would not return until 10 November and would depart again on 11 November to attend further sittings of the Senate in Canberra. On 5 November 2002 the District Registrar faxed a letter to the respondent’s electoral office confirming that the hearing listed for 7 November 2002 was not a directions hearing, but was the substantive hearing of the application. The respondent did not appear at the hearing. Counsel for the applicant stated that his client was content to have the respondent’s letter of 4 November 2002 treated as being a set of submissions. THE EVIDENCE At the hearing of this matter, in accordance with the abovementioned directions, I admitted into evidence the applicant’s affidavit sworn 5 March 2002, an earlier witness statement by her which was annexed to that affidavit, and those parts of the annexures to that affidavit which comprised photocopies of four witness statements, together with any annexures to those four witness statements. There were other annexures to the applicant’s affidavit. I have not dismembered that document, but only those parts of it which I have just mentioned were admitted into evidence. The applicant gave short oral evidence as did Mr Damon Kitney, the journalist who wrote the article which appeared in the Australian Financial Review. FACTUAL FINDINGS On the basis of the unchallenged evidence I make the following findings of fact. The first set of findings is based on the witness statement and oral evidence of Mr Kitney. His evidence was that on or about 2 May 1997, he requested and was granted an interview with the respondent at the respondent’s electoral office in Perth. Mr Kitney tape-recorded the interview, having first told the respondent that he proposed to do so. The respondent agreed to that. As a result of that interview Mr Kitney wrote an article entitled “PM’s Lightfoot-in-mouth poser” which appeared in the Australian Financial Review on 9 May 1997 (“the Financial Review article”). At that stage the respondent was a member of the Legislative Council of the Parliament of Western Australia, but had been elected to fill a vacancy in the Senate of the Commonwealth Parliament which had been created by the death of a senator from Western Australia. The Financial Review article is in evidence. It appears from the Financial Review article that during the interview the question arose of teaching Aboriginal culture in schools. The Financial Review article included the following: “Mr Lightfoot questioned interpretations of history which identified traditional Aboriginal people as being somewhere in the mid-point on the civilisation spectrum. “Aboriginal people in their native state are the most primitive people on earth.” Mr Lightfoot said. “I think history has been distorted by people not accepting what I’ve said at face value”. The former member of the Pastoralists and Graziers Association said as a result he remained vehemently opposed to the teaching of Aboriginal culture in schools. “If you want to pick out some aspects of Aboriginal culture which are valid in the 21st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I’d be happy to listen to those,” he said.“But otherwise I’m opposed to it”.”[The words which I have underlined are identified in the application as “the respondent’s comments”. The act of making those comments forms the basis of the complaint. I shall refer to them in the same manner in these reasons.]

Decision

Reasons for decision

CARR J

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Ratio Decidendi

Legal Principle Established

Established by: CARR J

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