Sidhu v Raptis
[2012] FMCA 338
•9 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIDHU v RAPTIS | [2012] FMCA 338 |
| HUMAN RIGHTS – Racial discrimination – offensive behaviour in public – applicant called ‘coconut’ and ‘nigger’ in public places – whether words conveyed racial insults for person of Indian origin – whether reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people – unlawful behaviour found in relation to one incident - $2,000 compensation awarded. |
| Australian Human Rights Commission Act 1986 (Cth), s.46PO Racial Discrimination Act 1975 (Cth), ss.18B, 18C, 18D |
| Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 Grulke v KC Canvas Pty Ltd [2000] FCA 1415 Eatock v Bolt (2011) 197 FCR 261 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Jones v Toben (2002) 71 ALD 629 McLeod v Power [2003] FMCA 2 McMahon v Bowman [2000] FMCA 3 Rankilor v Jerome Pty Ltd t/as Barkers Discount Furniture Store [2006] FMCA 922 Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931 |
| Applicant: | SANDEEP SIDHU |
| Respondent: | JIM RAPTIS |
| File number: | SYG 1976 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 23 March 2012 |
| Delivered at: | SYDNEY |
| Delivered on: | 9 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Klooster |
| Solicitors for the Applicant: | Schofield King Lawyers |
| Counsel for the Respondent: | Mr B Badarne |
| Solicitors for the Respondent: | Good Legal Lawyers |
THE COURT DECLARES THAT:
The respondent’s behaviour on 8 May 2011 was unlawful under s.18C of the Racial Discrimination Act 1975 (Cth), when he repeatedly called the applicant ‘nigger’.
THE COURT ORDERS THAT:
The respondent must pay the applicant $2000 compensation under s.46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1976 of 2011
| SANDEEP SIDHU |
Applicant
And
| JIM RAPTIS |
Respondent
REASONS FOR JUDGMENT
Mr Sandeep Sidhu alleges that his girlfriend’s brother, Mr Jim Raptis, called him ‘coconut’ and ‘nigger’ in public places, and that these were offensive references to his race, colour or national or ethnic origin which were unlawful under s.18C of the Racial Discrimination Act 1975 (Cth). He seeks remedies under s.46PO(4) of the Australian Human Rights Commission Act 1986 (Cth). For the reasons which follow, I am satisfied that these incidents occurred, and that the second, but not the first incident, involved unlawful behaviour. I have decided that Mr Raptis should pay Mr Sidhu $2,000 by way of compensation for his emotional upset and injured feelings resulting from the incident.
Section 18C appears in a self-contained Part IIA of the Racial Discrimination Act entitled ‘prohibition of offensive behaviour based on racial hatred’. It provides:
18C OFFENSIVE BEHAVIOUR BECAUSE OF RACE, COLOUR OR NATIONAL OR ETHNIC ORIGIN
(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.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(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.
This needs to be read with s.18B:
18B REASON FOR DOING AN ACT
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.
Behaviour which is unlawful under s.18C, may be excused by showing that it occurred in one of the exempting circumstances described in s.18D, which cover artistic activities, genuine purposes in the public interest, and publications of public interest. No such defences are claimed by Mr Raptis.
The legislative history and interpretation of s.18C have been thoroughly considered in a number of Federal Court judgments, most recently by Bromberg J in Eatock v Bolt (2011) 197 FCR 261, and by Barker J in Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307 (‘Clark’s Case’). I have endeavoured to apply this jurisprudence to the present matter.
As will appear, a significant issue in my mind concerns whether the language used by Mr Raptis had the character described in the words of s.18C(1)(a), i.e. “reasonably likely, in all the circumstances, to offend, insult humiliate or intimidate another person or a group of people”. As is apparent from these words, an objective test is required, even where the words were addressed only to a specific individual. However, the test is to be applied with the perspective of a reasonable person living in Australian society in the complainant’s position, that is a hypothetical person with a relevant race, colour or national or ethnic origin or with some other reason for possibly being offended by an act of the type complained of (see Clarke’s Case (supra)) at [50]-[59]).
Manifestly, the two incidents which I shall describe, are at the lowest end of the range of conduct which might attract the language of s.18C(1)(a), and it is important for me to consider authorities suggesting that, taking into account the legislative history, the words ‘offend, insult, humiliate or intimidate’ are intended to refer to “profound and serious effects, not to be likened to mere slights” (see Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [16], considered by Barker J in Clarke’s Case (supra) at [65]-[76]). However, as Bromberg J explained, the mischief which the section is directed at “is broader than conduct inciting racial hatred and extends to conduct at a lower level of transgression to the objective of promoting racial tolerance” (see Eatock v Bolt (supra) at [207]).
Bromberg J concluded from his examination of authorities and the legislative history:
267. In my view, “offend, insult, humiliate or intimidate” were not intended to extend to personal hurt unaccompanied by some public consequence of the kind Part IIA is directed to avoid. That public consequence need not be significant. It may be slight. Conformably with what I regard as the intent of Part IIA, a consequence which threatens the protection of the public interest sought to be protected by Part IIA, is a necessary element of the conduct s 18C is directed against. For the reasons that I have sought to explain, conduct which invades or harms the dignity of an individual or group, involves a public mischief in the context of an Act which seeks to promote social cohesion.
268. It is for those reasons that I would respectfully agree with the conclusion reached by other judges of this Court, that the conduct caught by s 18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights”: Creek at [16] (Kiefel J); Bropho at [70] (French J); Scully at [102] (Hely J); or, as Branson J put it in Jones at [92] “real, offence”.
The background
Mr Sidhu is an Australian citizen of Indian origin and dark complexion. His family live in the Punjab. In 2003, he suffered an episode of major depression with anxiety symptoms, in the context of stress relating to his migration to Australia. While studying and working in Melbourne he was exposed to racial insults and feelings of isolation. At the time of the present events in 2011 and subsequently, he was suffering symptoms of a diagnosed connective tissue disease, with depression arising from the disease and its medication (Prenisolone). A psychiatrist earlier characterised his personality as “mildly obsessional with a need for control and some mild perfectionist traits. He is a very driven young man with regards to pursing his goals”. I have formed a similar impression from Mr Sidhu’s evidence and conduct in the present matter. He also impressed me as being generally honest and truthful as a witness.
In July 2009, he met Dianne Raptis, and was welcomed into her family, which is an Australian family of Greek background. He lived in her parents’ house in Bass Hill, Sydney, and they currently live together in Tahmoor, in the vicinity of Dianne’s sister and her family. He was introduced to Dianne’s brother, Jim Raptis, in September or October 2009, and met him and his daughters regularly, particularly while Dianne worked in her brother’s shop in Young during 2011. There was talk of Mr Sidu joining or taking over Mr Raptis’ business, but this did not eventuate.
The evidence before me suggests that Mr Raptis is someone who is insensitive or careless of other people’s feelings, and prone to using insulting greetings and comments in a teasing manner. He started calling Mr Sidhu a ‘bloody Indian’ without considering how this could cause offence, and Mr Sidhu dealt with this by calling him a ‘bloody Greek’ in response, and by complaining to members of Mr Raptis’ family in private.
Mr Sidhu’s complaint to the Australian Human Rights Commission suggested that Mr Raptis had made references in his presence to an Indian cricketer as a ‘monkey’, and there is evidence that at Christmas in 2010 Mr Raptis and his daughters gave Mr Sidhu a present of exotic fruit including “a smiley face drawn on a coconut”. It is clear that by May 2011, Mr Sidhu felt a mounting sensitivity to Mr Raptis’ language, of which Mr Raptis was either unaware or ignored.
As a witness, Mr Raptis showed intelligence and was generally honest, and I accept that he believes himself, and is accepted within his family, to be a person with no racial or ethnic prejudices. I would generally accept his evidence, except, as I shall explain, where it departs significantly from Mr Sidhu’s account of the two incidents. He showed in the witness box that he felt resentment and bewilderment at Mr Sidhu’s reaction to a joking reference to him as a ‘nigger’, and he still regards Mr Sidhu’s complaint as “like preschool stuff”.
Evidence was filed by the parties suggesting that there were some other tensions which developed in the relationship between Mr Sidhu and Mr Raptis and his daughters at around this time, and that soon after the second incident they surfaced in retaliatory ‘AVO’ proceedings. However, the parties’ legal representatives very sensibly sought to confine the hearing before me into the present matter, and I took a strict approach to the admissibility of evidence of peripheral matters. I would note, however, that the broader Raptis family appears to have been attempting to cope very sensibly with these events and this litigation, which must have been disruptive to the tranquillity of their family. I can only hope that my judgment might close this unfortunate chapter, and assist to restore the unity of an Australian family which now includes Mr Sidhu, rather than the converse.
The first incident
The ‘coconut’ incident occurred in the late morning on a day in April 2011. Mr Sidhu went to Mr Raptis’ shop in Young where Dianne Raptis was working. She described it as ‘a takeaway come coffee shop come corner store’. Mr Raptis said it had tables inside and seating for about fifteen people. He said “there was the seating area and another area where there was newspapers and magazines, and the service counter went all across”. A separate kitchen area was at the back. On this occasion, Mr Sidhu noticed that there was a lot of smoke in the kitchen area and “reached across and turned the range hood fan up to full”, making a comment to an employee, Pennie. Shortly after this, he noticed Mr Raptis entering the kitchen and adjusting the range hood. Then:
4.About ten minutes later I walked into the service area behind the counter from the kitchen. The Respondent and my girlfriend were both standing in the service area behind the counter. To the best of my recollection Penny was standing in the service area behind the counter, or in the doorway leading from the service area into the kitchen. I recall having a conversation using words to the following effect:
Respondent: “Coconut, we have the exhaust on the low setting since it is noisy. We cannot hear if the exhaust is full blast”
I cannot recall whether or not I responded to the comment, I may have. I do recall that I felt insulted and left the shop shortly after.
Mr Sidhu was unshaken in his account of this incident in cross-examination, and it was corroborated by Dianne Raptis. She said:
2.I refer to paragraph 6 of my Previous Affidavit and say that to the best of my recollection the conversation deposed of therein took place in or around April 2011 at the Respondent’s café/corner store at (address omitted), Young around lunchtime. At the time the conversation took place the Respondent was behind the counter in the front section of the shop. I recall a conversation took place using words to the following effect:
Respondent: “Who turned up the fan?”
Me:“It was Sonny”
At this point in time I saw Sonny enter the front section of the shop from the service area through the swinging doors. Penny, who was employed by the Respondent, was standing in the front section of the shop near the swinging doors leading from the service area to the front section of the shop and was about a metre away from me. A further conversation then took place using words to the following effect:
Respondent: “Coconut, we don’t turn it up that much because we can’t hear out in the shop”
I noticed that Penny smirked after this was said. To the best of my recollection Sonny then said words to the following effect:
Sonny:“Sorry I didn’t know”
Sonny then left the front section of the shop.
Under cross-examination, both Mr Sidhu and Dianne Raptis had uncertain memories of whether Pennie was in the immediate vicinity of Mr Raptis’ comment, and whether there were any customers in the shop at the time. Pennie has sworn an affidavit denying a recollection of the incident, but her evidence does not cause me to disbelieve Mr Sidhu and Dianne Raptis.
Nor do Mr Raptis’ denials that he called Mr Sidhu ‘coconut’ cause me to reject their evidence. Considering his affidavit evidence and his responses under cross-examination, I consider it likely that he has no actual recollection of the incident, which was probably unmemorable from his perspective. I do not accept his claims that he is a person who would not have called Mr Sidhu ‘coconut’ in the circumstances described, and on my assessment of him I consider it likely that he unthinkingly did so.
I accept that Mr Raptis’ words were spoken ‘otherwise than in private’ for the purposes of s.18C(1), within the extended meaning of that term given by s.18C(2) and (3). The shop area in which Mr Raptis addressed Mr Sidhu was, in my opinion, clearly a ‘public place’ because it was a ‘place to which the public have access … by invitation’. I do not accept the submission of Mr Raptis’ solicitor that that fact that the words were uttered for a private purpose or in the course of a particular personal relationship prevents the operation of the extended definition. I consider that the opinion of Brown FM in McLeod v Power [2003] FMCA 2 at [50] that “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.” was clearly wrong. It is inconsistent with the terms of s.18C, and I would not follow it.
This is not to say that the characterisation of an insulting statement as a ‘private statement’, although uttered in a public place, might not in some circumstances have a bearing on whether the objective test of offensive behaviour under s.18C(1) is satisfied. However, in my opinion, s.18C is capable, and intended, to apply to offensive language uttered in a public place, whether or not it was intended to be a ‘private statement’ by its maker, or was made in the context of a ‘private’ communication made in a public place, if in the circumstances such a statement was likely to cause offense of the relevant type to any person who might have heard it – whether by intention of the maker or not.
Neither party presented evidence as to the Australian usage of the word ‘coconut’ as a greeting or descriptor of a person, and I was invited to apply my own understanding of the word. Mr Sidhu did not explain the connotations which he perceived in Mr Raptis’ use of the word, but clearly he thought that the word was derogatory. His belief that it was a personal insult is not determinative, although it may provide some evidence of this quality. However, notwithstanding Mr Sidhu’s sensitivity, it is by no means clear to me that ‘coconut’ objectively carries a significant racial insult when addressed in an Australian country town shop to a person of ethnic Indian appearance or background.
When applied to a person, the word might be invoking a number of the attributes of the seed of the coconut palm, whether husked or unhusked. It is conceivable that in Australian vernacular it might be used as an affectionate or mildly insulting comment on personal attributes, but this might not necessarily have any racial overtones: e.g. the notorious use by one Australian politician of ‘little desiccated coconut’ for another politician.
An internet search of racial insults (if I am entitled to take note of it) suggests that usage of ‘coconut’ as a racial insult may vary in different parts of the English speaking world. It identifies a controversy at Bristol City Council in 2010 when a black counsellor called an Asian colleague a coconut, and was understood to be making “a jibe used to accuse someone of betraying their heritage by pandering to ‘white’ opinion”. I am not sure that this context would occur in Australia, at least in relation to a person of Indian origin.
According to the Macquarie Dictionary, the word is capable of carrying a racial insult for some groups, but they do not include Indian Australians. Its definitions include:
2. Aboriginal English (derogatory) an Aboriginal person who is behaving in a non-Aboriginal manner.
3. NZ Colloquial (derogatory) a Pacific Islander.
In the present circumstances, the best I could imagine is that a person in Mr Sidhu’s situation might have thought that the term carried an extended insulting reference to Indians as monkeys, by allusion to the half of a coconut shell which (as is described in the Complete Oxford English Dictionary) provides the derivation of the word from Portuguese: “coco ‘grinning face, grin, grimace’, … the name being said to refer to the face-like appearance of the base of the shell, with its three holes.” However, the evidence before me does not cause me to conclude on the balance of probabilities that it was reasonably likely that Mr Sidhu, or a hypothetical reasonable person in his situation, would have drawn this allusion, and been seriously offended, insulted, humiliated, or intimidated by it as a racial slur.
My short conclusions from my consideration of the word ‘coconut’ in the circumstances in which it was addressed by Mr Raptis to Mr Sidhu, are that I am neither persuaded that it was a word reasonably likely to carry ‘real offence’ with the degree of seriousness required under the above authorities on s.18C(1)(a), nor that ‘it was done because of’ Mr Sidhu’s ‘race, colour or national or ethnic origin’ or because of these attributes of a group to which he belongs, within s.18C(1)(b).
Moreover, although Mr Raptis obviously felt that he was being addressed in a demeaning way, I am not satisfied that he regarded it as necessarily a racial slur, nor that he found the use of the word significantly upsetting in itself. Clearly, Mr Raptis’ language became a matter of substantial grievance, only when he subsequently encountered Mr Raptis taunting him with a manifest racial insult.
I am therefore not satisfied that the coconut incident provides evidence of behaviour made unlawful by s.18C.
The second incident
The second incident affected Mr Sidhu more significantly, and triggered the complaint to the Australian Human Rights Commission which has led to these proceedings.
It also has an innocent background.
In May 2011 Dianne Raptis went on holiday to Thailand, and Mr Sidhu remained in their house in Young. Mr Sidhu’s account of the incident as described in an on-line complaint submitted by him to the Commission on 11 May 2011, was:
… on 8th May 2011, i was at my girlfriend’s house at Young minding my own business. he attended the front gates of the house and tooted his horn. i attended to talk to him. he was playful and i passed a smile back to him and his eldest daughter in their Blue Subaru Liberty. he told me that i looked like a NIGGER. i paused while he went about his rant. i told him that was offensive, he said something to the affect “what you are offended Nigger? Nigger, Nigger, Nigger, Nigger, Nigger. with your beard and your hoodie, you look like a Nigger.” while he said that, he alighted from his car and slammed his door loudly. i felt his body language was aggressive and he was venting anger at me objecting to his language. i have seen similar behavior from him towards other members of the family when he does not have it his way. i looked at him in disbelief, told him to fuck off and started to walk away from him and towards the front door of the house, he said words to the affect of “I was joking MALAKA (means wanker in Greek). you fuck off”. the last words were said very assertively and aggressively. then he said a few choice words, which i cannot recall exactly. he stayed there some more time, i would say two to three minutes. while i was inside, i then heard his car rev off.
Mr Sidhu’s account of the incident in his affidavits gave a largely consistent account of the words spoken, although it does not suggest that Mr Raptis became physically threatening. Thus, in his affidavit of 12 January 2012, he said:
6.I refer to paragraphs 17 and 18 of my Previous Affidavit and say that to the best of my recollection I heard a car horn whilst at my girlfriend’s house at (address omitted), Young. I looked out of the front window and saw the Respondent in a motor vehicle parked outside the front of the house. I went outside to meet him. I recall that I was wearing a hoodie and had not shaved in a few days. To the best of my recollection as I approached the Respondent, the Respondent was sitting in the front driver’s side seat and we had a conversation using words to the following effect:
Respondent: “You look like a nigger”
I noticed that the Respondent and his daughter who was sitting in the front passenger seat laughed. I did not know how to react. After a brief pause we had a further conversation using words to the following effect:
Sonny:“Don’t you think that is offensive?
Respondent: “Nigger, nigger, nigger, nigger, nigger. What are you going to do nigger? Are you offended yet? Are you so offended?”
I was shocked and stared at the Respondent. About 15 seconds later a further conversation took place using words to the following effect:
Respondent: “Are you really that offended? I’m sorry mate. With your beard and your hoodie you do look like a nigger.”
After a brief pause the Respondent got out of the car and slammed the door. This intimidated me and I turned around and started to walk back to the house. I said “fuck off” under my breath as I was walking away. A further conversation then took place using words to the following effect:
Respondent: “Hey malaka I was only joking. I’m sorry.”
His daughter then said: “He was only joking Sonny”
By this point in time I had reached the front door when I heard the Respondent say:
Respondent: “You fuck off”
I entered the front door and closed it. Before I entered the house I turned around and noticed that the Respondent was still standing on the street outside the premises. After about two to three minutes I heard the car drive off. I recall the conversation took place around dusk.
Mr Raptis’ account given in his affidavit sworn on 31 January 2012, was:
7.I refer to paragraph 6 of the affidavit of Sonny sworn on 12/01/2012 and say that what is deposed to therein does not represent the accurate account of what was said on or about 08/05/2011. The incident referred to occurred on Sunday 08/05/2011 and not 09/05/2011 as Sonny says.
On that day I saw Sonny wearing a hoodie and we had a conversation the relevant part of which is to the following effect:
Raptis:“You look like one of those niggers out of MTV”.
Sonny then laughed about what I had just said.
I then said to him “how are you going”?
Sonny then suddenly became serious and said: “I find that what you said offensive, why don’t you fuck off’?
Raptis:“I am sorry. I was only joking Sonny”.
Sonny:“Fuck you”.
My daughter Katarina who was with me then said to Sonny “dad is only joking Sonny”.
Sonny:“Fuck off, don’t come out here again, I’d watch my back if I were you! This isn’t over yet! I’m going to fuck you up”.
Raptis:“Are you alright? What’s the matter with you”?
Sonny entered the house and my daughter and I drove away.
Mr Raptis’ daughter, who is now aged 17, also gave evidence. According to her affidavit:
4.Sonny was wearing a hoodie and looked a bit unshaven, dad remarked “you look like one of them niggers out of MTV” as he walked up to the front gate. Sonny laughed at it, and dad asked him how he was going, when Sonny randomly turned serious and said “I find that really offensive, why don’t you just fuck off”. I was a bit taken aback, it was really unexpected. I looked at dad who was also stunned and he said “Sorry Sonny, I was only joking.” Sonny replied: “Fuck off’, and I then said to Sonny “dad is only joking Sonny.” Sonny was approaching the house, still saying things like “you watch your back. I’m going to fuck you up” and other words of a similar nature. Dad called out to him saying “Are you alright, Sonny? What’s the matter with you?” Dad turned to me and asked “what’s the matter with him?” I replied, “let’s just go home, dad.” We just simply drove off, and put it down to him probably being tired and/or was having a bad day.
The geography of the incident was not the subject of any material dispute between the witnesses. Mr Raptis’ car was stopped in a public street at the verge adjacent to the fence and gate to Mr Sidhu’s home. There was a space of about one metre between the car and the gate. The engine of the car was running, and Mr Raptis made his reference or references to ‘nigger’ while seated in the driver’s seat. Katarina was sitting in the front passenger seat, next to the verge, with her window down. The words were heard by Mr Sidhu when he was on the other side of the gate. No witness said that the words were shouted, but they must have been spoken in a loud voice so as to carry over engine noise, through an open car window, and for three or more metres from Mr Raptis.
Under cross-examination, all witnesses maintained their versions of what was spoken in the exchanges before Mr Sidhu returned inside his house, and Mr Raptis drove away. Although the scenario appears to me to carry the possibility that the words spoken by Mr Raptis were heard imperfectly by Mr Sidhu, or became distorted in the memories of the witnesses, these possibilities were not explored in cross-examination. In effect, I was invited to prefer the account of one side over the other.
I would generally prefer Mr Sidhu’s evidence. His claim that there was a repeated and deliberately taunting insult is consistent with his complaint made within days of the incident. It is also consistent with the undoubted feelings of offence which he immediately communicated to Mr Raptis and his daughter. They agree that he showed these feelings, and have no explanation why, on their version of only one apparently harmless reference to ‘nigger’, Mr Sidhu would have reacted in the way they described.
I also found their evidence that Mr Raptis said only the words “you look like one of those niggers out of MTV” to be unconvincing, and am not satisfied that they have independent recollections of only these words being said. It is quite possible that the combined elements in Mr Sidhu’s appearance on that day – including his dark complexion, his unshaven beard, and his ‘hoodie’, brought to the mind of one or both of them the appearance of a member of a negro ‘rap group’. However, whether or not this association did come to the mind of Mr Raptis or his daughter, I consider it more likely that he greeted Mr Sidhu only with the words: “you look like a nigger”, thereby producing Mr Sidhu’s understandable reaction, and Mr Raptis’ inappropriate taunting by repeated insults.
Moreover, Mr Raptis could not point to any extrinsic reason why Mr Sidhu might have made a false complaint to the Human Rights Commission about the words spoken. He told me that any difficulties in their relations at the time were only “little family things”, and agreed with me:
So something changed in the relationship on that day as a result of whatever was said? --- Well, I obviously – he obviously got upset with me, yes.
There is evidence suggesting that Mr Raptis admitted having used insulting language to Mr Sidhu, in a conversation with Dianne Raptis after Mr Sidhu had complained to her. There is no evidence that Mr Raptis explained the incident at the time only by reference to the relatively inoffensive allusion he now presents to the Court.
On my assessment of all of the evidence, I am comfortably satisfied on the balance of probabilities that Mr Raptis made references to Mr Sidhu as a ‘nigger’ in the language and circumstances recounted in Mr Sidhu’s affidavit. I do not consider that I need to attempt to resolve some differences in the evidence as to the subsequent words spoken between the parties on that day, nor whether or not Mr Raptis got out of his car, except to note that Mr Sidhu accepts that their subsequent exchange included a statement of apology by Mr Raptis and excuse that “I was only joking”.
In the circumstances described, I am satisfied that Mr Raptis’ words were uttered ‘otherwise than in private’ because they were either uttered ‘in a public place’ or were ‘done in the … hearing of people who are in a public place’. The definition in s.18C(2)(b) would apply because, in my opinion, words spoken from within a car on a public street through an opened window for the purpose of communicating outside the car, are ‘done’ in the public place which is occupied by the car. The alternative definition s.18C(2)(c) would also apply, in my opinion, because Mr Raptis’ words were necessarily audible to persons on the public street or verge within at least the same range as Mr Sidhu. I do not consider that it is necessary to prove that, in fact, there was such a person who heard the words other than Mr Sidhu and Mr Raptis and his daughter (cf. McMahon v Bowman [2000] FMCA 3 at [26]).
The potentially unlawful behaviour under s.18C constituted by calling an Australian of dark complexion a ‘nigger’, was explained by Drummond J in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615:
7 The word "nigger", though perhaps more closely associated with the United States of America, has long been used in Australia to refer, in a derogatory way, to indigenous people, as reference to The Australian National Dictionary demonstrates. There can be no doubt that use of the word "nigger" is, in modern Australia, well capable of being an extremely offensive racist act. If someone were, for example, to call a person of indigenous descent a "nigger", that would almost certainly involve unlawful racially-based conduct prohibited by the Racial Discrimination Act. I say "almost certainly" because it will, I think, always be necessary to take into account the context in which the word is used, even when it is used to refer to an indigenous person. This is shown by the fact that the applicant volunteers that he is aware of suggestions that some aborigines refer to each other as "nigger" "in a joking way", (though he himself has never heard the word so used). It would, I think, be very unlikely for there to be any breach of the Racial Discrimination Act if an Aborigine were to refer to a fellow Aborigine in such a way as a "nigger". Though neither The Macquarie Dictionary, 3rd ed, nor The Australian National Dictionary make any reference to this use of the term within indigenous communities in Australia, such a use is well documented in the USA and the United Kingdom. Clarence Major points out in his Dictionary of Afro-American Slang (International Publishers, New York, 1970) that when the word "nigger" is used by a white person in addressing a black person, it is usually offensive and disparaging, but "used by black people among themselves, it is a racial term with undertones of warmth and goodwill - reflecting, aside from the irony, a tragicomic sensibility that is aware of black history". The Oxford English Dictionary, 2nd ed, (Clarendon Press, Oxford, 1989) also recognises this ironic usage in some black communities. It gives the following as the primary meaning of the word:
"A Negro. (colloq. and usu. contemptuous) Except in Black English vernacular, where it remains common, now virtually restricted to contexts of deliberate and contemptuous ethnic abuse." (emphasis added)
8 This all serves, in my opinion, to show how essential it is to have regard to the context in which even a word that usually has such a strong racially offensive connotation as "nigger" is used, in assessing whether it is in fact used on a particular occasion in a derogatory way. I do not think any absolute rule can be stated: it will, I think, all depend upon the circumstances in which the particular use of the word occurs, a truism reflected in s 18C(1)(a) of the Act. I do not therefore accept the applicant's contention that its use whatever the context must invariably be racially offensive and a breach of the Racial Discrimination Act.
As his Honour noted, there are abundant references in authoritative dictionaries, encyclopaedias, and other literature showing the deeply offensive nature of the word in English usage in the USA for persons of negro ethnicity (except, perhaps, when used humorously by themselves). In relation to Australian usage, the Macquarie Dictionary defines the word as always being ‘derogatory’, in respect of ‘a Negro’, ‘an Aborigine’ and ‘a member of any dark-skinned race’.
The insulting implications of the word for a person of Indian ethnicity in the English speaking world which was part of the British Empire is well documented and understood, not only in cricketing circles. I found this aspect of Australian usage of the word to be concisely explained and illustrated in a section on ‘British usages’ in an extensive article on the word ‘nigger’ in ‘Wikipedia’ which cites authoritative sources:
In the United Kingdom and the Anglophone world, nigger denoted the dark-skinned (non-white) African and Asian (i.e., from India or nearby) peoples colonized into the British Empire, and "dark-skinned foreigners" — in general.
In A Dictionary of Modern English Usage (1926), H. W. Fowler states that applying the word nigger to "others than full or partial negroes" is "felt as an insult by the person described, & betrays in the speaker, if not deliberate insolence, at least a very arrogant inhumanity"; but the second edition (1965) states: "N. has been described as 'the term that carries with it all the obloquy and contempt and rejection which whites have inflicted on blacks.' ".
Victorian writer Rudyard Kipling used it in 'How the Leopard Got His Spots' and 'A Counting-Out Song' to illustrate the usage of the day. Likewise, P. G. Wodehouse used the phrase “Nigger minstrels” in Thank You, Jeeves (1934), the first Jeeves–Bertie novel, in admiration of their artistry and musical tradition.
As recently as the 1950s, it may have been acceptable British usage to say niggers when referring to black people, notable in mainstream usages such as Nigger Boy–brand candy cigarettes, and the color nigger brown or simply nigger (dark brown); however, by the 1970s the term was generally recognized as racist, offensive and potentially illegal along with the variants "nig-nog" and "golliwog". As recently as 2007, the term nigger brown reappeared in the model label of a Chinese-made sofa, presumably regional Chinese usage of an out-dated form of English. Agatha Christie's book Ten Little Niggers was first published in London in 1939 and continued to appear under that title until the early 1980s, when it became And Then There Were None.
In the circumstances which I am considering in this case, in my opinion the deeply insulting nature of Mr Raptis’ greeting, followed by his taunting of Mr Sidhu after he objected, would be reasonably likely to offend all reasonable persons in his situation and with an Indian background such as his. Notwithstanding the family context, and Mr Raptis’ subsequent half apology and excuse of ‘joking’, I consider that it crossed the line of seriousness so as to come within the behaviour intended to be proscribed by s.18C.
I also consider that the nature of the offending language itself demonstrates that at least one of the reasons for its use by Mr Raptis was Mr Sidhu’s race, colour or ethnic origin, as exhibited in his appearance and obvious ethnic background.
I am therefore satisfied that Mr Sidhu has established conduct which is unlawful under Part IIA of the Racial Discrimination Act, and for which he is entitled to seek relief under s.46PO of the Australian Human Rights Commission Act.
Remedies
Section 46PO(4) sets out the remedies available to the Court:
(4) 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 thinks 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 employ or 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.
Mr Sidhu’s points of claim seek the following relief:
1.An order pursuant to s46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) that the time for filing the Application in these proceedings be extended to 5 September 2011
2.A declaration pursuant to s46PO(4)(a) of the Australian Human Rights Commission Act 1986 (Cth) that the Respondent has engaged in unlawful discrimination
3.An order pursuant to s46PO(4)(a) of the Australian Human Rights Commission Act 1986 (Cth) directing the Respondent not to repeat or continue such unlawful discrimination
4.An order pursuant to s46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth) that the Respondent provide a written apology to the Applicant for such unlawful discrimination
5.An order pursuant that the Respondent pay the Applicant damages pursuant to s46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth)
6.Costs
7.Such further or other order as the Court deems fit
I note that it is now not disputed that the present application was brought within the time provided by s.46PO(2), and I am satisfied that Mr Sidhu does not need an extension of time.
I accept that my above reasons make it appropriate that I should record my finding of unlawful behaviour in a declaration.
I do not accept that there is any need for injunctive relief. No evidence of any continuing threat or possibility of a recurrence of similar behaviour by Mr Raptis towards Mr Sidhu was presented. The likelihood of this appears to me now to be remote – particularly since they now live in different localities.
In similar cases of personal insult or offence, I have usually come to the opinion that no purpose is served by ordering a respondent to make a private apology, where he or she has vigorously defended the proceedings and shows no sign that he or she will sincerely accept the judge’s findings. Judicial minds might differ as to this assessment, but I consider in the present case that an order for an apology to be given by Mr Raptis to Mr Sidhu, whether privately or for publication to their families, would serve little purpose, and should not be ordered (cf. Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [34], Grulke v K C Canvas Pty Ltd [2000] FCA 1415 at [4], Jones v Toben (2002) 71 ALD 629 at [106], and Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931 at [101]).
My conclusion in this respect is also based upon Mr Sidhu’s preference in his final submissions for a remedy by way of an award of compensation.
Such an award is not made as a punishment or penalty for unlawful behaviour, particularly since no civil or criminal offence is committed by behaviour falling within s.18C. It is therefore irrelevant to assess the degree of culpability shown in Mr Raptis’ behaviour. The remedy of compensation must serve purely the purpose of meeting proven losses or consequences suffered by Mr Sidhu from the unlawful conduct, in so far as they are susceptible of monetary assessment. However, these can encompass all actual consequences of Mr Raptis’ conduct on Mr Sidhu, even if they were augmented in an unexpected or special way by reason of some personal idiosyncrasy or special vulnerability of Mr Sidhu.
As to the effects of the ‘nigger’ incident on Mr Sidhu, in his affidavit of 21 November 2011 he said:
The state of affairs was confronting. This upset me and I had trouble sleeping that night. I had an anxiety attack during the night and I continue to suffer from anxiety attacks today. I am bruised by the events and my mental and physical health is affected.
Mr Sidhu said that he complained to Mr Raptis’ sisters, and that one of them apologised on behalf of their family. However, Mr Sidhu thought that Dianne Raptis was unsympathetic, and he sent her an email on 11 May 2011 telling her that their relationship “is over”. However, they appear to have overcome this difficulty.
Medical records tendered by Mr Sidhu confirm that he was suffering from a physical illness with depressive and anxiety symptoms at around the time of the incident, and has subsequently obtained some assistance from a psychologist. However, he does not claim to have medical evidence establishing a particular mental injury or aggravation to his illness by reason of the incident, and it is difficult for me to attribute any serious symptoms of mental illness to Mr Raptis’ behaviour. I conclude that it is not possible to make any award of compensation for actual mental damage or its effects. However, I accept that his medical condition probably left him susceptible to a significant degree of emotional upset and distress at the time.
It is well established in discrimination cases that the legislation permits an award of compensation for intangible injury to feelings, personal hurt and distress occasioned by conduct which Parliament has declared unlawful. In relation to such compensation, I summarised the effect of the authorities in Rankilor v Jerome Pty Ltd t/as Barkers Discount Furniture Store [2006] FMCA 922 at [41]:
The exact determination of the appropriate amount of compensation for the applicant’s personal distress is never easy in these cases. Account must be taken of my assessment of the likely personal effects on this particular applicant of the discriminatory conduct, and an award should be arrived at which is “restrained” but not “minimal”, taking into account the intangibility of an injury by way of hurt feelings and mental distress without an established medical injury (c.f. Hall & Ors v A&A Sheiban Pty Ltd & Ors (1989) 20 FCR 217 at 238, 256, 281. See also QBE Travel Insurance v Bassanelli (2004) 137 FCR 88 at [89]).
I am satisfied that Mr Raptis’ taunting of Mr Sidhu with ‘nigger’ caused immediate hurt and distress, and that these feelings were not fully salved by Mr Raptis’ apology, in part because it was accompanied by overt incomprehension and denial as to fault. I accept that an emotionally upsetting grievance continued, and has continued throughout Mr Sidhu’s pursuit of his complaint and this litigation, causing distress and tensions in his private life. My findings have now vindicated his complaint, and I consider that a modest award of monetary compensation is appropriate. I would award him the sum of $2,000.
I shall hear the parties’ submissions as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 9 May 2012
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