McLeod v Power
[2003] FMCA 2
•14 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McLEOD v POWER | [2003] FMCA 2 |
| HUMAN RIGHTS – Racial discrimination – offensive act done because of colour of complainant – whether reasonable person would have been offended by act – whether act done otherwise than in private. Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.6PO Gibbs v Wanganeen [2001]FMC 14 |
| Applicant: | NEIL McLEOD |
| Respondent: | SAMANTHA POWER |
| File No: | AZ 73 of 2002 |
| Delivered on: | 14 January 2003 |
| Delivered at: | Darwin |
| Hearing date: | 11 December 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T White |
| Solicitors for the Applicant: | Tindall Gask Bentley |
| Counsel for the Respondent: | Mr G Britton |
| Solicitors for the Respondent: | Aboriginal Legal Rights Movement |
ORDERS
That the application filed on 28 March 2002 is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 73 of 2002
| NEIL McLEOD |
Applicant
And
| SAMANTHA POWER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Neale Maurice McLeod brought pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth) (the HREOC Act), claiming that he was the victim of offensive behaviour contrary to section 18C of the Racial Discrimination Act (the RDA).
Mr McLeod is employed as a correctional officer at the Yatala Labour Prison, Northfield by the South Australian Department of Correctional Services. On 8 April 2001, he was working at the gatehouse at the prison. One of the functions of prison staff at the gatehouse is to process and admit persons who wish to visit prisoners within the confines of the prison. One such person is the respondent to the application, Samantha Power. On the day in question she had come to the prison to visit her then de facto partner, Adam Wilson, who was a sentenced prisoner in the prison. Ms Power was not granted admission to enter the prison and as a result there was a verbal altercation between her and the applicant. The precise nature of the verbal exchange between the parties is in dispute. However the applicant alleges that he was referred to by Ms Power as “you white piece of shit”, “you fucking piece of white shit” and “fuck you whites, you’re all fucking shit”.
The applicant is Caucasian by ethnic extraction. The respondent is Aboriginal. It is these comments that the applicant claims to be unlawful pursuant to section 18C of the RDA. As a result he lodged a complaint against Ms Power with the Human Rights and Equal Opportunity Commission. This complaint was terminated by the Commission on 28 February 2002. Thereafter Mr McLeod instituted proceedings in this Court. In his application Mr McLeod seeks an order that the behaviour of which he complains amounts to an “act of racial discrimination” against him. He also seeks an apology and monetary compensation from Ms Power.
As Ms Power denies making the comments of which Mr McLeod complains, it will be necessary for findings of fact to be made in respect of what occurred at the gatehouse of the Yatala Prison during the afternoon of 8 April 2001. If it is found that the comments were in fact made, it will then be necessary to determine whether they amount to an unlawful act for the purposes of section 18C of the RDA. Finally it will be necessary for me to consider whether the case is such that it is appropriate to grant all or any of the relief which the applicant seeks pursuant to section 46PO(4) of the HREOC Act.
Background
The applicant is fifty years of age. He has been employed with the Department of Correctional Services for over twenty years. He has worked at the Yatala Labour Prison since February of 1988. As one would expect, given the nature of his employment, the applicant has been the subject of both verbal abuse and physical violence from prisoners during the course of his career with the Department of Correctional Services. The applicant is a member of a professional association for correctional services officers within South Australia. It seems that verbal abuse suffered by its members during the course of their duties is an issue of concern to this association. Following the decision of Federal Magistrate Driver in the case of Gibbs v Wanganeen [2001]FMC 14, a pamphlet was released to members of the association which read in part as follows:
“The Legal Fund is pleased to announce that it has prosecuted a claim for racial vilification by a prisoner of an officer pursuant to the Racial Hatred Act. The matter was heard by the Federal Magistrates Court whose finding was that because the offensive remarks were made in a correctional facility, it could not be regarded as a public place within the meaning of the Act. Although that aspect of the decision was disappointing, it is clear that if an officer is racially vilified in a “public area” of the prison (such as the visits area) then the matter would be actionable. The Legal Fund invites its members therefore to report any further racial vilification that may occur in “public” areas within correctional facilities, in consequence of which the Legal Fund will take further action for and on your behalf.”
On 8 April 2001 the applicant was on duty as the officer in charge of the gatehouse of the Yatala Labour Prison. Two other officers, Kenneth Rex O’Leary and a Mr F Farquharson were on duty with him. On the day in question O’Leary and Farquharson were subordinate to the applicant. The gatehouse is the place where all visitors to the prison are required to present themselves prior to any visit. For obvious reasons, the prison authorities are empowered to refuse entry or to search any person who is seeking admission to the prison.
The Department of Correctional Services has issued a procedure manual for use by those of its staff who have responsibility for overseeing prisoner visits. Prisoners are permitted to nominate friends and family members whom they wish to have visit them whilst incarcerated. They do this by completing a “Visitor Nomination Form” which contains the name and address of the proposed visitor and the nature of their relationship with the prisoner. These persons’ names are entered into a computerised system known as the Justice Information System. As a result both prisoners and their visitors are given a computer identification number and a record is kept of the persons visiting each prisoner. The system will also reveal the address of each visitor to the prison.
All adult non-professional visitors to the prison are required to produce either one item of photographic identification or two items of non-photographic identification to correctional services staff prior to being permitted to visit a prisoner within a correctional facility. For reasons of security, visitors are encouraged to provide the same identification on each visit. The type of identification that is provided by each visitor is also recorded in the Justice Information System. Visitors are entered and checked off on the Justice Information System. The system is designed to be flexible in order to ensure that prisoners receive the maximum number of visits commensurate with security. I was told that it is sometimes the case that visitors are admitted to the prison without providing identification provided that the persons concerned are known to the correctional services staff on duty at the relevant time.
The rationale of the system is to encourage prisoners to maintain community and familial relationships during their incarceration as an aid to rehabilitation, whilst at the same time recognising security concerns, particularly the possibility of the entry of contraband into the prison environment. Pursuant to section 34(3)(b) of the Correctional Services Act 1982 (South Australia), the General Manager of a correctional facility may ban a person from visiting for up to twelve months.
All visitors to the Yatala Labour Prison are required to report to staff at the gatehouse. The gatehouse is reached by a concrete walkway, which runs off a roadway. At the intersection of this roadway with the public highway is a boomgate. Visitors to the prison walk past the boomgate along the roadway before entering the gatehouse through a doorway. On entering the gatehouse, they present themselves to correctional services staff, who are located behind a counter which divides the gatehouse. Above the counter is a transparent screen, which reaches to the ceiling. Through this screen a slot has been prepared through which documents may be handed to staff. Visitors talk to staff through this screen. Behind the counter, correctional services staff have access to computer terminals and so to the Justice Information System. Visitor may also be handed a key to one of a number of lockers that are located on the visitors’ side of the counter and where they are required to leave any large items of their property, prior to entry to the prison proper.
Visits to the prison are scheduled at specific times. On the day in question, visits were to commence at 2.45pm. As a result, visitors may be required to wait on their side of the counter until the scheduled time of the visit or whilst correctional services staff undertake inquiries. Once visitors have produced the necessary identification to correctional services staff and satisfactory inquiries have been made on the Justice Information System, visitors pass through a metal detector and then another doorway and so into the prison proper.
The respondent is thirty-one years of age. She is a single parent of Aboriginal descent, who is in receipt of a supporting parent benefit as her sole source of income. She is the mother of seven children. The father of her three oldest children is currently serving a sentence of imprisonment in Western Australia. Mr Adam Wilson, the father of her four youngest children was, at the time relevant to these proceedings, in custody at the Yatala Labour Prison. Ms Power has had limited access to education and in the past has had problems related to the use of heroin. On 8 April 2001, she was taking part in a methadone program in order to break her addiction to heroin. As a result of Ms Power’s various difficulties, the South Australian Department of Human Services, Family and Youth Services had made an application that her children be taken into care. The four children of whom Mr Wilson is the father are Kaneishia born 17 November 1995; Cindy born 11 July 1997; Adam born 18 September 1998 and Samantha born 27 January 2000.
On 8 April 2001, Ms Power came to the Yatala Labour Prison to visit Mr Wilson. She wished to discuss with him the application that had been brought by the Department in respect of the children. She was angry with Mr Wilson because it was in part as a result of information received from him that the Department had made its application in respect of the children. The eighth of April 2001 was a Sunday. Ms Power did not have ready access to a motor car. In order to get to the prison from her home in Ingle Farm to make the 2.45 pm visiting time, it was necessary for Ms Power to catch two buses. This took in excess of two hours. She was accompanied by her four youngest children. At the time Cindy, Adam and Samantha were accustomed to travelling in a pusher.
In her evidence, Ms Power indicated that she had visited the Yatala Labour Prison on approximately twenty occasions prior to 8 April 2001, in the main to visit Mr Wilson. I accept that she had had no previous difficulties in gaining entry to the prison. It was her practice to use her Medicare card and pension card for identification purposes.
In her affidavit sworn on 14 November 2002, Ms Power indicates that on 8 April 2001 she was on a daily dose of 50-60 mg of methadone. This dosage made her feel “out of it” and “difficult” for her “to think clearly”.
In my view, by all relevant community standards, Ms Power belongs to a significantly disadvantaged section of the Australian Community.
Evidence
The applicant relied on the following affidavits:
i)
Four affidavits sworn by himself on 27 March, 11 July,
9 October and 2 December 2002 respectively;
ii)Two affidavits of Kenneth Rex O’Leary sworn on 30 September and 24 October 2002 respectively;
iii)An affidavit of Mr F Farquharson sworn on 18 October 2002;
iv)An affidavit of a psychiatrist, Christopher Ward Griffin sworn on 8 October 2002.
Of these witnesses, only the applicant himself and Dr Griffin were cross-examined, it having been agreed between the parties that the other two correctional services officers, who were present on 8 April 2001, were not required to give evidence in addition to that contained in their affidavits.
The respondent relied on an affidavit sworn by herself on 14 November 2002 and gave some additional viva voce evidence and was cross-examined by counsel for Mr McLeod.
As would be expected, the applicant and Messrs. O’Leary and Farquharson each prepared reports for their superiors in respect of what happened on 8 April 2001, either on the day in question or shortly thereafter. Copies of these statements were tendered as part of the evidence. The three witnesses each indicated in their statements that the respondent had used verbal abuse within the gatehouse and other abuse, which included the words “white” and “whites”, whilst she was outside the prison gatehouse. The respondent admits that she was upset at the gatehouse but denies that she used the particular abuse attributed to her by the applicant and in particular the use of the epithet “white” in conjunction with it. There can however be no doubt that there was an unpleasant incident at the gatehouse on 8 April 2001 and that the genesis of this incident was the refusal of the staff to admit Ms Power to the prison so that she could visit Mr Wilson. A further area of dispute between the parties is whether or not Ms Power provided some form of documentary identification to the correctional services staff in support of her application to visit Mr Wilson.
Mr O’Leary was the Visits Booking Officer on the day in question and as a result was the correctional services officer whom Ms Power initially approached at the counter within the gatehouse. It is Ms Power’s evidence that, due to her running late for her visit, she had forgotten her normal form of identification for entry to the prison. She said that she proffered the court documents relating to the application that had been made in respect of her children and which she wished to discuss with Mr Wilson during her visit with him, as proof of her identity. These documents bore both her name and that of Mr Wilson. Both Mr O’Leary and Mr McLeod indicate in their evidence that Ms Power had no form of documentary identification with her. However Mr Farquharson in his statement indicated that Ms Power “spoke to OPS 2 K O’Leary and showed him some papers which she tried to use as identification. Officer N M McLeod OPS3 intervened and after looking at the papers advised Ms Power that he would not allow her in with this as identification.”
In this regard, I prefer the evidence of the respondent, as corroborated by Mr Farquharson’s statement. It seems to me to be more likely than not that Ms Power would have brought what was the subject matter of her visit to the prison with her so that she could discuss it with Mr Wilson. It also seems likely that she would then have attempted to use it as proof of her identity, bearing as it did both her name and Mr Wilson’s. After all it was Ms Power’s wish to discuss the particular document with Mr Wilson and she had spend some effort to get to the prison with her four young children to do it. It also seems highly incredible that Mr Farquharson would have referred to “papers” if none existed.
In those circumstances, I can well understand that Ms Power would have become angry when she was refused admission to the prison, particularly when she had been admitted to it without incident in the past. I accept that she was frustrated and upset at the refusal by figures in authority in the form of the applicant and Mr O’Leary to allow her entry into the prison. I have no doubt that she reacted badly to this refusal. It was hot. She had come a long way. The purpose of her visit was frustrated. There was no other person to whom she could turn to seek a review of the decision. She reacted with vulgarity, rudeness and insult in the face of what she perceived to be heartless and inflexible bureaucracy. Her children were deprived of the opportunity to see their father.
It was initially Mr O’Leary’s decision to refuse Ms Power entry to the prison because of her inadequate identification. As a result of her reaction to this decision, Mr McLeod, as the supervising officer on the day, intervened because in his word “the conversation was going no where”. It is clear that Mr McLeod backed up Mr O’Leary’s decision.
Ms Power has said that she did not use any of the terms of abuse and insult that have been attributed to her by Mr McLeod and the other two correctional services officers and particularly that she attached to those words the epithet “white” or “whites”. In this regard I do not believe her. The three officers concerned are consistent in their recollection of the words used and said as such in their reports of the incident to their superiors. On the other hand Ms Power deposed that, due to the methadone, she was “spaced out and did not know if she was coming or going”. She acknowledged that she was “wild” and was yelling after she was refused entry into the prison. In these circumstances I prefer the evidence of Mr McLeod himself.
As a result I have no doubt that Ms Power was abusive within the gatehouse itself. At this time Mr McLeod was on the secure side of the counter. It seems that within the gatehouse itself, Ms Power was abusive towards Mr McLeod and Mr O’Leary referring to them as “fuckwits” but not attaching the specific words “white” or “whites” to her terms of abuse. She was foul mouthed and no doubt wished to cause offence to the officers concerned. In my view, in her anger and frustration, she was speaking the patois of the streets. Language which a correctional services officer of some twenty years experience would have heard before and indeed according to Mr McLeod was of a type that had been directed at him on past occasions. It is also clear that Ms Power had decided to leave the gatehouse of her own accord and in that sense was not staying “to argue the toss” with either Mr O’Leary or Mr McLeod. She left the gatehouse of her own accord and did not have to be forcibly removed. In Ms Power’s words she was “cursin’ around” as she left. It is also clear that at this time there were at least two other persons in the gatehouse waiting to be admitted to the prison. They heard and saw the altercation between Ms Power and Mr McLeod and Mr O’Leary. However, up to this stage, although Ms Power’s behaviour was offensive and uncivil and perhaps may have laid her open to summary police charge, it was not behaviour actionable under the RDA.
Although Ms Power left the gatehouse of her own volition, Mr McLeod and Mr Farquharson elected to leave the secure area within the gatehouse and follow her to ensure that she walked down the walkway and on to the driveway and so past the boomgate and off correctional services property. It was at this stage, outside the gatehouse, whilst the three were walking down the concrete walkway and then along the driveway and whilst Ms Power was leaving the prison that she used the phrases of which Mr McLeod specifically complains, namely “you white piece of shit”, “you fucking piece of white shit” and “fuck you whites you’re all fucking shit”. Mr McLeod was certain in his evidence that in his words “the racial vilification was said outside” the gatehouse. Each of the correctional services officers concerned is adamant that these phrases were used and specifically that the word “white” or “whites” was inserted into the terms of abuse.
I am satisfied that the language complained of was used by Ms Power. She was obviously upset at being turned away from the prison and acknowledges that she was “cursin”. Her specific memory of events is also likely to have been affected by the methadone that she had taken on the day.
Mr McLeod was an accomplished witness. At the time he made his original statement he was clearly aware of the contents of the pamphlet that had been prepared by his professional association’s legal fund. In particular he was aware of the view that it expressed that if an officer was “racially vilified” in the visits area of the prison it was potentially actionable. I also have no doubt that he was shocked and offended by the language that was used against him within the gatehouse itself and again out on the walkway and driveway leading away from the prison. In my view he was shocked and offended by the strength and vehemence of the swearing that was directed against him. I do not believe that his shock and offence were necessarily transformed or intensified by the addition of the anodyne words “white” or “whites” into the melange of invective that had been directed against him, once he, Mr Farquharson and Ms Power left the gatehouse.
Mr McLeod was concerned when he made his report that some action be taken against Ms Power because of how she had behaved at the gatehouse and outside it. He was concerned that his employers would not view the matter as seriously as he did. He was concerned that Ms Power should in his words “not get away with it”. In my view, this application was inspired more by his feelings of indignation at having being abused, as he saw it unjustly, by Ms Power, for carrying out his difficult and demanding job, as properly directed by his superiors, rather than by feelings of having been specifically racially vilified by her. I believe that his indignation gelled with his recollection of the contents of the pamphlet and in particular the reference in it to racial vilification in the public area of the prison, such as the visits area. Accordingly, this application provided a means of preventing Ms Power “getting away with it”.
At any rate, as matters transpired, following receipt of the various reports concerning the incident, the general manager of the Yatala Labour Prison, decided that Ms Power should be banned from visiting there for three months. However the matter was not referred to the Police for further investigation and apparently Mr McLeod himself elected not to make a complaint to the Police.
As I have already indicated, it is somewhat ironic that the use of the words “white” or “whites” by Ms Power is the only factor that brings this matter into the purlieu of this Court. As I have said, it is my view that Mr McLeod took his greatest insult from the tone and the use of the swearwords directed against him and his sense that he was being abused unjustly because he was carrying out his job properly.
Obviously the impact of any word must be understood from the context in which it is used. In his evidence, Mr McLeod indicated that he was concerned that in matters of this kind “there was one rule for some and one rule for others”. Or in other words some kind of double standard was liable to be imposed by the Correctional Services Authorities in respect of the report he made to them arising from the incident. By this I take it that Mr McLeod believes that if he himself, in his job as a correctional services officer, personally referred to someone such as Ms Power as “black” whilst violently swearing at them and the matter was reported, the authorities would take a very dim view of it. In this regard he is undoubtedly correct.
However, the context is central in determining the impact of any word. In this case, the relevant scenario was of a person in a position of comparative authority being abused by the person over whom that authority had been exercised. It was a situation in which there was a power imbalance between the person being abused and his abuser. Ms Power was largely impotent in respect of the decision that had been made to refuse her entry to the prison. She committed the acts complained of whilst she was, in effect, being escorted away from the prison by persons who were exercising their authority over her. In my view, the balance of power clearly favoured Mr McLeod and Mr Farquharson. This is an important matter when applying the objective test that is created by s.18C of the RDA to the facts of the case and is a matter to which I will return when discussing the applicable law.
During the course of the case there was much discussion about whether or not the gatehouse and the areas outside were or were not public places. Clearly they were each public areas. Members of the public were free to enter the gatehouse to make inquiries regarding visiting the prison. Permission does not have to be obtained from anyone to enter the gatehouse or to approach it along the walkway and driveway leading to it. It is also clear that there were at least two members of the public present in the gatehouse when Ms Power approached the counter to request admission to the prison and whilst her request was being dealt with. I did not hear any evidence from these two people, whose identity was revealed from the Justice Information System as being a Mr and Mrs Maddeford. However, on balance it would appear that they were witnesses to at least the portion of the incident that occurred within the gatehouse, this being a portion of the exchange that did not include the use of the word “white”. It is unclear whether they heard any of the invective that was used outside the gatehouse and in particular the words of which Mr McLeod complains in particular.
However, in some ways the interaction between Ms Power on the one hand and Mr McLeod and the other correctional services officers on the other was a private exchange. Private in the sense that Ms Power’s invective was directed to the correctional services officers alone and was designed to express her rage and frustration at that moment in respect of the decision to refuse her entry to the prison.
Mr McLeod did not have any time off work following the incident and did not seek any formal counselling or psychological treatment either through his employment or independently. His solicitors arranged for him to be examined for medico-legal purposes by Dr Griffin, a psychiatrist in early June of 2002, over a year after the incident. Dr Griffin diagnosed Mr McLeod as suffering form an “adjustment disorder unspecified (i.e. with angry mood)”. The symptoms of this condition were said by Dr Griffin to “predominantly involve a sense of outrage and indignation”.
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 (the ICERD) to which Australia is a signatory.
Article 4 of the ICERD 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.
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.[1]”
[1] 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.[2]”
[2] 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.
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 matters of public interest. 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.[3]”
[3] Hansard Tuesday 15 November, 1994 p. 3337
Section 18C was considered by the Human Rights and Equal Opportunity Commission in Korczac v Commonwealth of Australia (Department of Defence) (2000) EOC 93-056 where it was said as follows:
“It is evident that the RDA does not require the relevant acts to have occurred “in public” or “in a public place” what is required that the acts occur “otherwise than in private”. Section 18C(2) indicates circumstances where certain conduct may be taken to occur “otherwise than in private”. However the section is not exhaustive, it simply indicates some examples of cases which may fall within the definition and it does not exclude other circumstances which a person may argue fall within the meaning of “otherwise than in private”.
It is in this context that section 18C of the RDA must be interpreted. In my view, the applicant needs to satisfy each of the following criteria before the act of which he complains can be found to be unlawful pursuant to section 18C of the RDA.
Firstly there must be a causal connection or nexus between the act of which he complains and his race, colour or national or ethnic origins.
Secondly, he must establish, on an objective basis, that the act complained of was reasonably likely to offend a person with his racial or ethnic origins. It is not sufficient for the applicant himself to establish that he personally was offended, insulted, humiliated or intimidated. The objective test is to be based on ordinary community perceptions and the context in which the word or words or the action complained of occurred. In this regard see Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) EOC 93-141. This case concerned the use of the word “nigger” in the naming of a stand at a sporting ground. There can be no doubt that the word “nigger” is one that is likely to be deeply offensive to many people but particularly to persons of Afro-American descent. This is so given the history of slavery, segregation and denial of civil rights to such persons in the United States of America during the years before and after the American Civil War and the deep layers of meaning that surround the word “nigger” in this context. However, in the context of the naming of a sports stand in Australia, where the person after whom the stand was named had as his nickname the epithet “nigger”, and the stand was named accordingly and members of the community generally were not offended by the naming of the stand in this way, it could not be said that section 18C had been enlivened. Although it was clearly the case that one particular person had been sincerely offended by the naming of the stand in this way.
Thirdly, the applicant must establish that the act complained of was done “otherwise than in private”. In my view it is not sufficient that the applicant establish that the act complained of occurred in a public place. He needs to establish that it did not occur in private. I accept the interpretation of section 18C(2) provided by Korczac (supra) and that the various matters set out in sub section (2) are examples that may fall within the definition but are not in themselves definitive.
A private conversation does not become a public one merely because it takes place in a public street or in a place to which members of the public have a right to admission or access. Again, whether or not an act occurs “otherwise than in private” depends on the context of the situation and must be interpreted from the overall intention of the legislature in enacting Part IIA of the RDA. That purpose was to prohibit and provide a civil remedy for behaviour based on racial hatred and to prevent persons being threatened because of their particular racial, colour, national or ethnic origins.
Finally, it is clear that the provision of the relief sought by the applicant is discretionary, even if it is found that an unlawful act of discrimination has occurred pursuant to section 18C of the RDA. Section 46 PO (4) of the HROC Act reads as follows:
If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it think fit, including any of the following orders or any order to a similar effect:
(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 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.
Application of the law to the facts of the case
a) Was the act done because of Mr McLeod’s race or ethnic origins
The act complained of by Mr McLeod is the use of the word “white” and “whites” in conjunction with the common terms of abuse “fucking”, “fuck” and “shit”. There must be a purposive, causative connection between the swearing and the use of the words “white” or “whites”. The swearing and the use of the word “white” and “whites” must have been done because of the race (etc) of Mr McLeod. It is not sufficient that the use of the word “white” was incidental to the swearing. There must be sufficient connection between the act complained of and Mr McLeod’s race and origin.
The purpose of the RDA and the Racial Hatred Act in particular is to prevent racial discrimination and to implement Australia’s obligations pursuant to the ICERD. One of the central elements of racism is a belief in the superiority of one race, religious or ethnic group over another. In states or countries where racist beliefs or policies hold sway, minority groups are at particular risk from the implementation of policies based on such principles and may be damaged by the prejudices that flow from such attitudes. It was to protect such minorities that the RDA was implemented.
Section 18C of the RDA speaks of “race, colour, or national or ethnic origins”. In my view the term “white” does not itself encompass a specific race or national or ethnic group. It is too wide a term for that. “White” is of course a colour. The Australian Oxford Dictionary (1999) gives as one of the meanings of “white” the following: “of the human group having light-coloured skin”. Using this definition the majority of the Australian population can be described as being “white” and certainly people with “light-coloured skin” constitute the dominant group in Australian public life.
The meaning of the word “colour” in section 18C is to be derived from its statutory context: Project Blue Sky v ABA (1998) 194 CLR 355 at 368 and 381. In my view it is to be interpreted in the context of the words that surround it in section 18C and the whole of the RDA itself.
In King-Anstell v Police [1979] 2 NZLR 531 the Court of Appeal in New Zealand considered the meaning of the phrase “ethnic origins” in the New Zealand Race Relations Act 1971. It was a case that was referred to in the Explanatory Memorandum to the Racial Hatred Act[4]. In the case Richardson J said at p 542:
“The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or racial, national or ethnic origins. That must be based on a belief shared by members of the group.”
And at p 543 the same judge said:
“a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”
[4] Memorandum to the Racial Hatred Act p. 2
King-Ansell (supra) was approved by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548 where at 562 Lord Fraser of Tullybelton spoke of one characteristic of an ethnic group as it “being a minority or an oppressed group or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups”.
Using these definitions in the Australian context, being “white” per se is not in my view descriptive of any particular ethnic, national or racial group. Nor is it of itself a term of abuse. White people are the dominant people historically and culturally within Australia. They are not in any sense an oppressed group, whose political and civil rights are under threat. Nor can they be said to constitute an homogeneous group in terms of the definition put forward by Richardson J in King-Ansell (supra). White people in Australia may have different languages, religious beliefs, countries of origin and cultural practices. The situation may be different in other countries and in this regard countries such as Zimbabwe come to mind.
I have no doubt that Ms Power wished to cause offence to Mr McLeod. She wished to protest at what she saw as the arbitrary and unreasonable nature of the decision to refuse her entry to the prison. That is the reason she swore at him. But did she swear at Mr McLeod because of his “race, colour or national or ethnic origins” or because he was a correctional services officer who had made a decision of which she was resentful? I am satisfied that the dominant reason that Ms Power swore at Mr McLeod was because she was dissatisfied with the decision that had been taken at the gatehouse to refuse her entry.
However section 18B of the RDA provides that where an act is done for two or more reasons and only one of the reasons is the race (etc) of the complainant and although that reason is not necessarily the dominant or substantial reason for the doing of the act, the act is still to be taken to have been done because of the person’s race.
There seems no other satisfactory explanation for the use of the words “white” or “whites” by Ms Power in the context of this case other than that she wished to express her frustration at what she perceived as being a power imbalance between herself and Mr McLeod. He being a person of light coloured skin and a correctional services officer who was refusing her entry to the prison and she being a person of dark coloured skin, who was being foiled in her desire to enter it. She wanted to do this in as stark and confrontational manner as she could. This perhaps is analogous to the situation described by Lord Fraser of Tullybelton when he described the Normans and Anglo Saxons following the Battle of Hastings in terms of being distinct ethnic groups. In this sense only were the words “white” and “whites” used by Ms Power because of Mr McLeod’s “race, colour or national or ethnic origins”. As a consequence of section 18B of the RDA this brings the matter within the purlieu of Part IIA of the Act. However in my view it is drawing a long bow to use the RDA in this way and was certainly not the primary purpose of the legislature in enacting legislation of this kind.
b) Was the act reasonably likely to have the effects alleged?
It is Mr McLeod’s evidence that he was offended, insulted and humiliated by Ms Power’s actions on 8 April 2001. Dr Griffin indicated that Mr McLeod was suffering angry mood and a sense of outrage and indignation.
The RDA specifies an objective test in respect of whether or not the act complained of by Mr McLeod was reasonably likely to have the effects that he alleges. In Corunna & Ors v West Australian Newspapers Ltd (2001) EOC 93-146, Inquiry Commissioner Innes said as follows a p 75,465:
“The RDA clearly specifies an objective test and the case law supports this construction. (See the comments of Sir Ronald Wilson, the then President of the Commission, in Bryant v Queensland Newspapers Pty Ltd, HREOC, 15 May 1997, unreported). The President formed this view because of the words “reasonably likely” and indicated that a complaint would not be successful merely because a complainant was offended by a particular action.
Commissioner Wilson appeared to assume that the question of whether a person would be reasonably likely to be offended by a particular action should be asked in terms of whether the complainant or persons of the race, colour, or national or ethnic origins of the complainant would be reasonably offended. The Commissioner stated:
“But are the words reasonably likely to offend, insult, humiliate or intimidate the complainant or some people of English origin? (p 3)
This suggests that the “reasonable person” may be a reasonable person of a particular race, ethnic origin etc. However, it is not clear what characteristics would be considered relevant for the purposes of the objective test. Commissioner Wilson indicated that assessment of whether a particular action would be reasonably likely to offend would be a “question of fact in every case, depending on the context in which the allegedly offensive word or words is used.”
However the yardstick to reasonableness should not be a particularly susceptible person to being roused or incited, but rather a reasonable and ordinary person and in addition should be a reasonable person with the racial, ethnic or other relevant attributes of the complainant in the matter. This was described by Inquiry Commissioner Innes in Corunna (supra) as being the “reasonable victim test”. It is the test that I propose to adopt in this matter.
Accordingly the question to be addressed is whether or not a reasonable, light skinned prisoner officer would have been offended, insulted, humiliated or intimidated by being referred to as a “white piece of shit” and being the object of the other invective used. This question has to be placed into the context of Mr McLeod, who was in a position of authority over Ms Power, enforcing his decision that she would not be admitted to the prison. It was a difficult and emotion charged situation. Ms Power clearly reacted badly to the decision and lost her temper. She was angry and frustrated. The words “shit” “fuck and “fucking” were clearly used to insult and offend Mr McLeod.
I doubt that he would have felt intimidated or humiliated by these words alone. They are common terms of abuse that are frequently used in daily life and particularly in the environment of a prison and would be frequently heard by a correctional services officer. The question is whether these words are transformed to any significant degree by the addition of the words “white” or “whites” to them. The only transformative consequence that I can see in the use by Ms Power of the words “white” and “whites” is that by their use, she intended to draw attention to what she saw as the power imbalance between herself and Mr McLeod and, in particular, that she thought that the way in which he had exercised his authority over her was unfair. By implication she wished to suggest that Mr McLeod was exercising his authority on a racist basis, she being an Aboriginal person and Mr McLeod obviously being pale skinned. I think that it is the effect of Mr McLeod’s evidence, when coupled with that of Dr Griffin, that he felt a sense of indignation that it would be suggested that he would not perform his duties fairly and without reference to any factors other than those specified by Office of Correctional Services procedures. To Dr Griffin, Mr McLeod reported that he felt upset and annoyed by the incident. At its highest, it seems to me that Mr McLeod took exception to the use of the words “white” and “whites” in the context of the dispute between him and Ms Power in this way. Essentially he took it that Ms Power was suggesting that she was not being admitted to the prison because she was Aboriginal and he took exception to this suggestion and to the other swear words that were used against him.
In regards to the incident itself, it is clear that it took place over a fairly short period of time. There had been no previous relationship between Mr McLeod and Ms Power. Up to that time they were strangers to one another. Ms Power was clearly upset and had lost her temper. She reacted in the heat of the moment and without thought. Certainly she gave no premeditation as to the best means to cause the maximum insult and hurt to a person such as Mr McLeod. Other than the meaning Mr McLeod took from the abuse, that is that he was acting on a racialist basis in refusing Ms Power entry to the prison, I do not think that the evidence reveals that Ms Power was acting out of hatred or contempt for pale-skinned people generally. Her spleen was being vented against Mr McLeod and Mr Farquharson specifically and the decision they had taken in respect of her. They both happen to be pale skinned. I do not believe that it can be said to have been surprising to Mr McLeod that Ms Power did lose her temper, given the circumstances of the matter. Ms Power was clearly leaving the area of the prison when the act complained of happened. Although she was abusive, she was not staying to argue the issue with him. With the greatest respect to Ms Power, she struck me as being a person of little formal education. She was not an articulate or sophisticated witness. She is a person who is likely to “curse” when frustrated or angry. Certainly she is a person who belongs to one of the most disadvantaged sections of the Australian Community, one which is a minority within Australian society.
I have no doubt that correctional services officers have to enforce many decisions that are unpopular both with prisoners within the system and with other members of the public who wish to visit the prison from time to time and that it is relatively common for such decisions to provoke a flurry of bad language from those affected by those decisions. Mr McLeod conceded that it was not unusual for bad language to be used by prisoners against officers in the prison. That is not to excuse such behaviour.
In the context of this matter, I do not believe that a reasonable correctional services officer with a pale skin would have been offended, insulted, humiliated or intimidated by the addition of the words “white” or “whites” to the abuse used by Ms Power outside the gatehouse of the Yatala Labour Prison on 8 April, 2001. The abuse, although unpleasant and offensive was not significantly transformed by the addition of the words “white” or “whites”. These words are not of themselves offensive words or terms of racial vilification. This is particularly so because white or pale skinned people form the majority of the population in Australia. The fact that Mr McLeod was upset because he felt that he was being portrayed unfairly as a stereotypical white, racist prison officer by Ms Power is not, to my mind sufficient to bring the incident complained of within the ambit of section 18C of the RDA. I believe that a reasonable prison officer would have found the words offensive but not specifically offensive because of the racial implication that Mr McLeod says he found in them. The incident was unpleasant and perhaps unnecessary but it was not an incident that was essentially infused by considerations of race and colour other than because of the particular racial origins of the players who were involved in it and the power imbalance between them at the time. It was also an off the cuff event that was over quickly.
c) Was the act done otherwise than in private?
The specific act of which Mr McLeod complains occurred outside the gatehouse at the prison. This was an area that was open to members of the public. However the evidence indicates that the only persons who were present at the time were Mr McLeod, Mr Farquharson and Ms Power, although Mr O’Leary apparently heard the words complained of. In particular, I heard no evidence from Mr and Mrs Maddesford, or from any other visitors, as to whether they heard or witnessed of what was said outside the gatehouse. There is no evidence that Ms Power was, to use a colloquial phrase, “playing to the grandstand” in respect of displaying her umbrage at being refused admission to the prison and in particular attempting to portray Mr McLeod in as bad a light as possible to the world at large.
It is clear that the legislation intends to protect private conversations from the reach of the RDA. In my view the evidence is clear that Ms Power intended her conversation with Mr McLeod and Mr Farquharson to be a private one. She was abusing them alone as she walked away from the prison. She was expressing herself off the cuff and was voicing the matter that was of immediate concern to her – that she was angry that she had been refused admission to the prison. However there can be no doubt that what she said did take place within a public place as defined by section 18C (2) & (3).
As I said earlier, I do not believe that the quality of a private conversation or discussion is necessarily transformed merely because it happens in a public place. In my view this case falls within a borderline situation and must be determined according to the circumstances surrounding the conversation. In Gibbs v Wanganeen (supra) Federal Magistrate Driver had to deal with acts that allegedly offended section 18C of the RDA and which occurred within the section of the Yatala Labour Prison that housed sentenced prisoners. In the circumstances of the case with which he was dealing, Federal Magistrate Driver concluded that the Yatala Labour Prison was not a “public place” and the act done in that case was not done “otherwise than in private”. However Federal Magistrate Driver concluded:
“A prison is not in general a public place, but some parts within a prison may be a public place depending on the circumstances. Also, it is possible that an act done within a prison may be done otherwise than in private, depending on the circumstances, even if done in a place that is not a public place.”
I agree with Federal Magistrate Driver that the circumstances and the quality of the act concerned must dictate whether or not an act is done “otherwise than in private”. In a case where a conversation forms the act which is complained of under the RDA there will also be the issue of the quality of the conversation itself, that is whether it was intended to be a private conversation or heard by a more general audience or was one likely to be heard by a larger audience. I also agree with what was said in Korczac (supra) that section 18C (2) is not exhaustive of all the circumstances of acts which are to be regarded as not done in private but contains examples of acts which may regarded as not being done in private. In all the circumstances of this case, I have concluded that the act done by Ms Power was not done otherwise than in private.
Conclusions
Accordingly, for these reasons I have formed the conclusion that the act complained of by Mr McLeod does not transgress the RDA and so his application must fail. However, if I am wrong in the view that I have taken in respect of this matter and the application to it of section 18C of the RDA and in the event that I had been persuaded to take a different view of it, I would nonetheless have had difficulty in considering this an appropriate case for the provision of relief of the kind sought by the applicant pursuant to section 46 PO (4) of the HREOC Act.
The act complained of by Mr McLeod was a spontaneous one that occurred in a stressful situation for Ms Power. She was clearly overwrought and upset when it occurred. Mr McLeod was, to a large extent in control of the situation, which happened over a brief period of time. Mr McLeod himself did not seek to have any specific counselling in respect of the incident and has been able to maintain his employment. The matter was reported to the prison authorities and action was taken against Ms Power. She was banned from visiting the prison for three months. In my view this was an appropriate penalty for an unpleasant and unnecessary incident that does her no great credit.
Pursuant to section 79 of the Federal Magistrates Act, I have a discretion to award costs in this matter. The general rule is that costs follow the event. Mr McLeod has been wholly unsuccessful in the matter. However that is not to say that Ms Power is without blame, although I have found her conduct not to be unlawful pursuant to the RDA.
In my view, the matter that was litigated in this case was a matter of some public interest, particularly to correctional services officers, following the decision of Federal Magistrate Driver in Gibbs v Wanganeen (supra) and as is evident from the pamphlet that was distributed amongst them by their professional association. In these circumstances, I do not believe that any order for costs should be made.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Brown FM
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