McGlade v Lightfoot

Case [2002] FCA 752

FEDERAL COURT OF AUSTRALIA

McGlade v Lightfoot [2002] FCA 752

PRACTICE AND PROCEDURE – RACIAL DISCRIMINATION – motion for summary dismissal of application on ground that no reasonable cause of action was disclosed –statements made by respondent to journalist during an interview in a parliamentary office – statements published in newspaper article under that journalist’s byline – statements re-published in another newspaper attributing the source as being the first article – whether reasonably arguable that respondent made those statements “otherwise than in private” – whether reasonably arguable that act was to be “taken not to be done in private” by reason that it caused words to be communicated to the public – whether it was sufficiently clear that there was no real question to be tried – strike-out motion dismissed.

Racial Discrimination Act 1975 (Cth), s 18C

Burton v Shire of Bairnsdale (1908) 7 CLR 76 followed

O’Sullivan v Truth & Sportsman Limited (1957) 96 CLR 220 referred to

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed
Webster v Lampard (1993) 177 CLR 598 followed

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 referred to
Alphacell Ltd v Woodward [1972] AC 824 referred to

HANNAH McGLADE v SENATOR ROSS LIGHTFOOT
W568 of 2001

CARR J
13 JUNE 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:

13 JUNE 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The respondent’s motion dated 14 May 2002 be dismissed.

2.        The respondent pay the applicant’s costs of that motion.

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:

13 JUNE 2002

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. The Court has before it a motion on notice whereby the respondent seeks an order pursuant to Order 10 rule 4 when read with Order 20 rule 2 of the Federal Court Rules, that the application be dismissed on the basis that no reasonable cause of action is disclosed. 

    FACTUAL AND PROCEDURAL BACKGROUND

  2. This matter has a long history, part of which I set out in my reasons for judgment in McGlade v Human Rights and Equal Opportunity Commission and Senator Ross Lightfoot [2000] FCA 1477. There have been further developments in the matter since then, but it is not necessary for me to refer to them at this stage.

  3. For the purposes of this motion the following facts have been assumed.  The applicant is an Aboriginal person.  The respondent is a member of the Federal Parliament.  On an unknown date, prior to 9 May 1997, in the respondent’s parliamentary office, the respondent made a statement to Mr Damon Kitney, a journalist with the Australian Financial Review.  As part of the making of…

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AGLC
McGlade v Lightfoot [2002] FCA 752
Case
[2002] FCA 752
Decision Date

CaseChat Overview and Summary

In McGlade v Lightfoot, the applicant, an Aboriginal person, sought relief from the respondent, a member of the Federal Parliament, due to comments made by the latter in an interview published in the Australian Financial Review and later in The West Australian. The applicant argued that the respondent's comments were offensive and discriminatory, contravening section 18C of the Racial Discrimination Act 1975 (Cth). The respondent moved to dismiss the application, contending that no reasonable cause of action was disclosed. The court had to determine whether the respondent's comments were protected by the exemptions in section 18D of the Act, specifically whether they were made in good faith and for a genuine purpose in the public interest.

The court found that the respondent's decision to give an interview to a journalist, and his choice not to make it "off the record", meant that the likelihood of his words being communicated to the public was significant. The court considered it reasonably arguable that the act was not done in private within the meaning of the Act. The court noted that the respondent's comments, if proven to be discriminatory, were likely to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour, or national or ethnic origin. Consequently, the court concluded that the motion to dismiss was not well-founded and dismissed the motion.

ORDERS:
1. The respondent’s motion dated 14 May 2002 be dismissed.
2. The respondent pay the applicant’s costs of that motion.

Orders

Orders of the court

1. The respondent’s motion dated 14 May 2002 be dismissed.

2. The respondent pay the applicant’s costs of that motion.

Background

Background to the litigation

The Court has before it a motion on notice whereby the respondent seeks an order pursuant to Order 10 rule 4 when read with Order 20 rule 2 of the Federal Court Rules, that the application be dismissed on the basis that no reasonable cause of action is disclosed. FACTUAL AND PROCEDURAL BACKGROUND This matter has a long history, part of which I set out in my reasons for judgment in McGlade v Human Rights and Equal Opportunity Commission and Senator Ross Lightfoot [2000] FCA 1477. There have been further developments in the matter since then, but it is not necessary for me to refer to them at this stage. For the purposes of this motion the following facts have been assumed. The applicant is an Aboriginal person. The respondent is a member of the Federal Parliament. On an unknown date, prior to 9 May 1997, in the respondent’s parliamentary office, the respondent made a statement to Mr Damon Kitney, a journalist with the Australian Financial Review. As part of the making of that statement the respondent said the following words, or words to the following effect:“Aboriginal people in their native state were the most primitive on Earth.” The respondent also went on to say the following words or words to the following effect:“If you want to pick up some aspects of Aboriginal culture which are valid in the 21st century, that aren’t abhorrent, that don’t have some of those terrible sexual and killing practices in them, I’d be happy to listen to those.” On 9 May 1997 the respondent’s above remarks were published in an article in the Australian Financial Review under Mr Damon Kitney’s byline. On 13 May 1997 an article appeared in “The West Australian” newspaper which referred to the abovementioned article in the Australian Financial Review and, in the course of doing so, reported that the respondent had said that he was opposed to the teaching of Aboriginal culture in schools on the basis that “Aboriginal people in their native state were the most primitive on Earth”. The respondent was also reported in the article in The West Australian as having said that “Many aspects of their culture, including sexual practices, were abhorrent”. In the principal proceedings the applicant seeks relief (including an apology and compensation) from the respondent on the basis that by making the abovementioned comments the respondent had contravened s 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”) and that the exemptions contained in s 18D did not apply. THE STATUTORY FRAMEWORK Sections 18C and 18D of the Act are in the following terms:“Offensive behaviour because of race, colour or national or ethnic origin18C. (1) 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 a group of people; and (b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.(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 the 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.Exemptions18D. 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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CARR J
I think that she has done so. The facts assumed show that the respondent chose to give an interview to a journalist. He chose not to give the interview “off the record”. In those circumstances the likelihood that what the respondent said would appear in the public domain, in the forms in which it did, was such that I consider it to be reasonably arguable that that act caused his words to be communicated to the public. That is, that it was reasonably arguable that the act was not done in private, within the meaning of the Act. CONCLUSION For the foregoing reasons the motion will be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

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