Williams v Tandanya Cultural Centre
[2001] FMCA 46
•23 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLIAMS v TANDANYA CULTURAL CENTRE & ORS | [2001] FMCA 46 |
| HUMAN RIGHTS – Racial discrimination – alleged discrimination of an Aboriginal by other Aboriginals and non-Aboriginals – whether discrimination based on membership of a particular Aboriginal group is unlawful. |
| Human Rights and Equal Opportunity Act 1986 (Cth), ss.46PO, 46PH(1)(c),(g) Racial Discrimination Act 1975 (Cth), ss 9, 13, 18B, 18C 18E |
| Gibbs v Wanganeen [2001] FMCA 14 Low v Commonwealth [2000] FMCA 6 |
| Applicant: | JOSEPH WILLIAMS |
| First Respondent: Second Respondent: | TANDANYA CULTURAL CENTRE ADELAIDE CITY COUNCIL |
| File No: | AZ65 of 2000 |
| Delivered on: | 23 July 2001 |
| Delivered at: | Sydney (heard in Adelaide and Sydney) |
| Hearing Dates: | 27-28 Jun 2001 and 23 Jul 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant in person |
| Counsel for the First, Third, Fourth and Fifth Respondents | Mr M Ahern |
| Solicitors for the First, Third, Fourth and Fifth Respondents Counsel for the Second Respondent: | Crown Solicitor Mr L Smith |
| Solicitors for the Second Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first and second respondents, to be taxed in accordance with the Federal Court Rules if not agreed.
Note:Settlement and entry of orders is dealt with under section 36 of the Federal Court Rules.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE
SZ65 of 2001
JOSEPH WILLIAMS
Applicant
And
TANDANYA CULTURAL CENTRE
First Respondent
ADELAIDE CITY COUNCIL
Second Respondent
SA MUSEUM
Third Respondent
SOUTH AUSTRALIAN POLICE
Fourth Respondent
GARNETT WILSON
Fifth Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application by Mr Joseph Williams pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (HREOC Act) claiming that he was the victim of discrimination contrary to the Racial Discrimination Act 1975 (the RDA). In his application filed on 4 October 2000 the applicant states that he was relying on all sections of the RDA. I ordered the applicant at a directions hearing to provide particulars of his claims and he did so in narrative form in an affidavit filed on 25 June 2001. The applicant had previously filed a short affidavit in support of his claim on 4 October 2000. It appears from those affidavits and from other material filed on behalf of the applicant that the applicant relies in particular upon sections 9 and 13 of the RDA. It appears that the applicant also relies upon sections 18C, 18B and 18E of the RDA.
Annexed to the application was a notice of termination issued by the Human Rights and Equal Opportunity Commission on 8 September 2000. The application to this Court was accordingly filed in time. In a letter to the applicant, also dated 8 September 2000, HREOC explained to the applicant its reasons for terminating the complaint made to it. The notice of termination discloses that the complaint was terminated pursuant to s.46PH(1)(c) and (g) of the HREOC Act on the ground that HREOC considered the complaint was lacking in substance or misconceived or on the ground that the subject matter could be more effectively or conveniently dealt with by another statutory authority.
There were originally six respondents to the application, respectively the Tandanya Cultural Centre (first respondent), the Adelaide City Council (second respondent), the South Australian Museum (third respondent), the South Australian Police (fourth respondent), Mr Garnett Wilson (fifth respondent) and Taylor and Cullity Pty Ltd (sixth respondent). The application against the sixth respondent was dismissed with costs pursuant to orders made by Federal Magistrate Raphael on 30 April 2001.
All respondents other than the first respondent have filed defences in the proceedings. Each of those respondents deny that they have racially discriminated against the applicant. The first respondent was not represented until shortly before the trial of this matter and the first respondent joined generally in the defence of the other respondents.
In his affidavit filed on 4 October 2000 the applicant set out briefly the grounds of his application. These are:
a)that the applicant was not properly consulted by the first, second and third respondents in relation to certain works carried out relating to Aboriginal cultural issues.
b)That the fifth respondent has given incorrect and misleading information to State Government departments which have had the effect of allegedly denying the applicant the enjoyment of benefits that he would have otherwise enjoyed.
c)That the applicant was wrongfully arrested by officers of the fourth respondent.
d)That the third respondent has not consulted with the applicant over the public display of traditional Aboriginal items of a specific cultural nature.
e)That the second respondent has not allowed indigenous communities to self determine the production of cultural corroboree grounds and bush tucker walking trails for the City of Adelaide.
These matters were developed somewhat by the applicant in his affidavit filed on 25 June 2001.
The fourth respondent admits a series of arrests by its officers of the applicant but denies that any of those arrests was a violation of the provisions of the RDA. The fifth respondent admits that the applicant has a grievance arising out of the removal of an organisation known as KACHA Incorporated from the South Australian State Aboriginal Heritage Committee. The fifth respondent asserts that as chairperson of the State Aboriginal Heritage Committee, he has a duty and responsibility to give funding only to local Aboriginal Heritage Associations who are represented on that committee. The fifth respondent asserts that the removal of KACHA Incorporated from the State Aboriginal Heritage Committee was a ministerial decision which was arrived at fairly and in accordance with the requirements of procedural fairness.
The second respondent asserts that the applicant’s complaints to the HREOC against the second respondent arise out of two projects undertaken by the respondent, namely:
a)conducting a feasibility study of the potential development of a Kaurna cultural trail and walk in the City of Adelaide; and
b)the development of concept plans for a proposed redevelopment of part of Rymill Park adjacent to the Tandanya (National Aboriginal Cultural Institute Inc) building on Grenfell Street in Adelaide.
The second respondent asserts that:
a)The first project, which commenced in April 1999, was to be undertaken in three stages, namely:
i)determine the feasibility of the Kaurna Cultural Trail in the city, and if feasible;
ii)establish concept plans, trail and site interpretive designs, trail management strategies and exact sites for the trail; and
iii)implement the trail.
b)The second respondent engaged Taylor & Cullity to implement stage 1. This stage was completed on 25 February 2000.
c)The first stage involved a 10 month implementation time for the feasibility study to ensure that comprehensive consultation was undertaken with the Kaurna community.
d)The second respondent denies that it failed to consult the applicant or that it discriminated against the applicant on grounds of race in the consultation process.
e)The following consultation took place:
i)members of KACHA, Taylor & Cullity and the second respondent formed a reference group which met on 29 April 1999, 14 May 1999 and 7 February 2000. Telephone and individual contact between members also occurred throughout the project.
ii)Members of the reference group and KACHA membership at large were consulted on 11 May 1999, 1 June 1999 and 19 October 1999.
iii)Members of the Kaurna Elders Committee were consulted at meetings held on 25 November 1999, 3 December 1999 and 8 February 2000.
iv)The wider Kaurna Community were consulted during workshops conducted on 13 July 1999, 24 July 1999, 27 July 1999 and 31 July 1999. The applicant was invited to attend these workshops but did not attend.
v)The applicant advised an employee of the respondent that he did not attend the community workshops as it “was not worth it”.
f)The second respondent afforded the applicant and other members of Kaurna community ample opportunity to provide their views on the proposals.
g)On numerous occasions, the applicant verbally abused the threatened staff members of the second respondent and Taylor & Cullity. In November 1999, security personnel were called in to escort the applicant from the respondent’s premises.
h)If the second respondent did fail to consult the applicant (which the second respondent denies) the second respondent says the lack of consultation resulted from the applicant’s threatening and abusive behaviour towards employees of the respondent and in no way was based on the applicant’s race, nor did the respondent make any distinction, exclusion or preference based on race, colour, descent, nationality or ethnic origin.
i)In 1999 the second respondent allocated funding to develop concept plans for the development in Rymill Park. Extensive consultation ensued and concept designs have been finalised.
j)KACHA, other Kaurna community members and Tandanya staff were consulted throughout the process by correspondence and through a series of meetings held throughout 1999.
k)The second respondent’s consultants, Taylor & Cullity, engaged in at least five telephone conversations with the applicant.
l)The applicant raised concerns about the relevance of the project to Aboriginal men’s interests. The applicant was invited to two meetings to discuss his views and review the site design for Rymill Park.
m)During the first meeting, the applicant expressed concerns that the site was not an important Kaurna Cultural site and was therefore inappropriate for cultural dances. The applicant advised that the design did not reflect Kaurna Culture but the other Kaurna men present did not support this view. The applicant did not provide any specific design criticisms to elaborate on his views.
n)The applicant was twice invited to attend the second meeting but failed to attend. During the second meeting, the overall response to the revised plans and artwork presented was positive.
Material relied upon by the applicant
In addition to the two affidavits referred to above the applicant relied upon two very similar books of documents which were filed on 12 April 2001. The second respondent objected to the use of these documents on a number of grounds, essentially relevance and hearsay. I admitted the documents as evidence provisionally and the documents were marked for identification on the basis that the objections could be resolved at the conclusion of the proceedings. Mr Smith pressed his objections. Mr Ahern submitted that the issue was really one of weight. I accept Mr Ahern’s submission on this point. I took these documents into account although the relevance of many of them is not apparent and I gave the documents minimal or no weight, with the exception of correspondence from the fifth respondent. The applicant also relied upon an affidavit by Mr Lance G (Karno) Walker, filed on 25 June 2001, and a statutory declaration by Mr Glen Millar, filed on 24 April 2001.
Material relied upon by the respondents
The respondents relied upon the following affidavits:
a)the affidavit and annexures of Lincoln Smith, filed on 18 May 2001;
b)the affidavit of Jill Andrews, filed on 18 May 2001;
c)the affidavit of Sabine Jung, filed on 18 May 2001;
d)the affidavit of Brenda O’Connor, filed on 18 May 2001;
e)the affidavit of Kevin Taylor, filed on 18 May 2001;
f)the affidavit of Anne Marie Pisani, filed on 18 May 2001;
g)the affidavit of Steven Mark Thalborne, filed on 18 May 2001;
h)the affidavit of Michael James Quinton, filed on 25 May 2001;
i)the affidavit of Paul Duncan Waye, filed on 28 May 2001; and
j)the affidavit of Kirstie Parker, filed in court on 27 June 2001.
All of these deponents other than Mr Smith were cross-examined on their affidavits.
What is the dispute about?
The applicant gave evidence that he is a traditional Kaurna artistic person who teaches traditional Kaurna culture through dance, storytelling and music and that he has previously performed publicly a number of times. He also gave evidence that he was a public officer in the Peramangk and Ramindjeri Heritage Associations. The applicant considers that he is being discriminated against by Aboriginal and non Aboriginal persons for seeking to follow and enforce indigenous traditions. He also asserts the right to self determine indigenous cultural needs and traditions for the region.
It seems that the genesis of the present proceedings was a dispute within KACHA (which was an organisation representing the Kaurna people in the Adelaide region) about control of that organisation. Members of the applicant’s family were prominent in KACHA. It seems that in consequence of that dispute KACHA became defunct and, on the advice of the fifth respondent, KACHA was removed from the South Australian State Aboriginal Heritage Committee and a different organisation was nominated to represent the Kaurna community on that committee. This had the effect that the applicant, who is not a member of the new Kaurna representative body, ceased to be involved in matters of cultural significance affecting the Kaurna community. There followed a series of confrontations between the applicant and the fifth respondent, as well as officers of the first respondent and the fourth respondent. As a result of several of those confrontations, the applicant was arrested by the police. In substance, the applicant asserts that he was discriminated against by the police in the course of those arrests and that he was also at one of those times racially abused. The applicant also alleges that the first, second, third and fifth respondents treated him less favourably because of his race than he would have been treated otherwise.
The legislation
Section 9(1) of the RDA makes it unlawful
“to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom…”.
Section 13 of the RDA makes it unlawful for a person who supplies goods or services
“to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions… by reason of the race, colour or national or ethnic original of that other person…”.
Section 18C of the RDA provides that it is unlawful for
“a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people and 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”.
Section 18B provides that if an act is done for two or more reasons and 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 the legislation, the act is taken to be done because of the person’s race, colour or national or ethnic origin. Section 18E deals with vicarious liability.
Consideration of the issues
The applicant’s case against the police is relatively straightforward. He says that he was discriminated against on account of his Aboriginal race by the police in a series of incidents which resulted in his arrest. The assertion, simply put, is that the applicant was treated less favourably than he would have been if he were not Aboriginal. The applicant also asserts racist language used by one of the police officers concerned. The applicant’s case against the other respondents is more subtle. He does not allege discrimination as an Aboriginal. He alleges discrimination (in the form of exclusion and/or lack of effective consultation) on account of his membership of a particular Aboriginal group within the Aboriginal community. The applicant asserts that he is a member of the Kaurna community and that assertion was supported by the evidence of Mr Karno Walker and also by the statutory declaration made by Mr Glen Millar. That assertion is disputed by the fifth respondent, by reference to the applicant’s genealogy. The fifth respondent has, in effect, dealt with the applicant on the basis that he is a member of a different Aboriginal ethnic group than the Kaurna community. The applicant also claims links with the Peramangk and Ramindjeri Aboriginal communities and also asserts a more personal Aboriginal tradition which he describes as Parna Dreaming which, in the applicant’s view, provides him with links to a number of Aboriginal communities. These are somewhat difficult cultural concepts to grasp as was apparent from the explanation of Parna Dreaming by the applicant:
“Parna Dreaming is associated to Kaurna, Ramindjeri, Peramangk, right up to Wokka Wokka in Queensland, Doomadgee, and you know, it has global repercussions, as you might say, in terms of my role from that point of view is that traditional culture, as an evolving culture understands how the whole planet is evolving and so traditions are surpassed through evolution, and that these evolutionary phases of culture carry with it the weight of its history and also pick up the bits that are relevant to get through the next step.”
It is neither necessary nor appropriate for this Court to reach any conclusions about the applicant’s genealogy or to reach any conclusions about the meaning or effect of his cultural beliefs. I am satisfied that his beliefs are sincerely, indeed passionately, held. What is relevant is that the applicant’s dealings with the first, second and fifth respondents have been significantly influenced by the dispute within the Kaurna community over the applicant’s place within it and the removal of KACHA from the State Aboriginal Heritage Committee. The applicant’s case against those respondents essentially is that he has been treated less favourably because of his ethnic links within the Aboriginal community, not simply that he is an Aboriginal. This raises for consideration the meaning of the term “race” in the RDA.
The word “race” is a broad term. Also, in addition to race, the RDA proscribes discrimination based upon national or ethnic origins or descent. It will be apparent to anyone with even a rudimentary understanding of Aboriginal culture and history that the Australian Aborigines are not a single people but a great number of peoples who are collectively referred to as Aborigines. This is clear from language and other cultural distinctions between Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not simply against discrimination against “Aboriginals” but also discrimination against particular Aboriginal peoples. There is no dispute that the applicant is an Aboriginal person. There was some dispute within the Kaurna community as to the applicant’s links to that community. The alleged acts of discrimination by the first, second, fifth (and, possibly third) respondents are all related in one way or another to that dispute and the alleged exclusion and lack of consultation are all linked by the applicant to his particular cultural associations within the Aboriginal community. In principle, I am satisfied that these acts, if found to be discriminatory, could constitute discrimination against either s.9 or s.13 of the RDA.
I am satisfied, however, that the application, insofar as it relates to the third respondent, must fail. The applicant, while he makes a simple assertion of lack of consultation by the South Australian Museum, has advanced no evidence in support of the assertion. There is nothing before me on which I could safely conclude even that the event complained of took place, let alone that there was any discriminatory conduct involved.
I am also satisfied that the application against the first respondent must fail. The complaint of the applicant is that he was not consulted, or not consulted effectively in relation to two projects being conducted under the auspices of the second respondent. The first respondent is a commercial organisation which was a prospective user of developments undertaken by the council relating to Aboriginal cutlural heritage but it has no role in the planning or consultation process, other than as an organisation which might itself be expected to be consulted from time to time. The applicant gave evidence that he sought an interview with the director of Tandanya on 29 September 1999 and that a performance that he planned to conduct at Tandanya on 1 October 1999 was cancelled. It is, however, clear from the evidence of Kirstie Parker (which I accept as accurate and truthful) that the applicant’s inability to obtain an interview and the cancellation of his performance were not related to his race or ethnicity. The first respondent is an Aboriginal cultural organisation which takes great pains to deal appropriately with persons of Aboriginal descent. It is clear that staff at Tandanya felt threatened by the applicant because of what they perceived to be his aggressive attitude. Their actions were in no way conditioned by any discrimination based upon his race, descent or ethnic origin.
Likewise, the application against the fifth respondent must fail. There is evidence that the fifth respondent doubted the applicant’s links to the Kaurna community and, hence, his right to represent that community. I was told by Mr Ahern that the fifth respondent now accepts that the applicant is a Kaurna person of mixed heritage, in common with most other Kaurna people. The fifth respondent is himself a leader of the Kaurna community and in that capacity he is entitled to express his opinion on such an issue. Even if he were not so entitled, he did not in so doing discriminate against the applicant either because he was an Aboriginal or because he was a Kaurna person or because he was not. It was a simple expression of opinion. The fifth respondent did provide advice to the South Australian Government which had the result that KACHA ceased to be a member of the State Aboriginal Heritage Committee and, in consequence, the applicant lost a base from which he enjoyed opportunities for consultation on behalf of the Kaurna community. However, the fifth respondent took that action because KACHA was defunct and there was no discrimination against the applicant. In any event, I accept Mr Ahern’s submission that the fifth respondent acted in an official capacity under the State Aboriginal Heritage Act, which is a special measure within the meaning of s.8 of the RDA.
There is evidence that the fifth respondent has declined to deal with the Tjilbruke Dreaming Forum on which the applicant is a leading member but I am satisfied that the fifth respondent’s attitude is governed not by any discriminatory conduct based on race, descent or ethnic origin but simply upon his view that the applicant is not someone with whom he wishes to deal, because of the fifth respondent’s view of the applicant’s personality and actions. The fifth respondent considers that he has been insulted and abused by the applicant and his attitude is based upon that belief.
The application against the second respondent also fails. There is ample evidence of consultation by the City Council with Aboriginal groups concerning the external performance space near Tandanya and the Kaurna Walking Trail. The organisations consulted included KACHA prior to its removal from the Heritage Committee. The applicant was included in the consultation process. The applicant is dissatisfied with that consultation and he has not personally received the consultation to which he believes he is entitled. However, the City Council is entitled to rely upon advice from organisations representing relevant Aboriginal communities as to who should be consulted and in what manner. It is clear that the second respondent has sought that advice and that it has relied upon the advice received. The second respondent has not treated the applicant less favourably than anyone else by reason of his race, descent or ethnic origin.
That then leaves the applicant’s case against the fourth respondent. It is common ground that officers of the fourth respondent arrested the applicant on several occasions. The applicant was arrested by a serving officer on 16 November 1998 following an alleged sexual assault by the applicant upon one Ms Jodie Martin, the mother of two of the applicant’s children. The applicant was also arrested on 26 May 1997 in the North Adelaide Parklands. On that occasion police apparently became involved in a violent argument between the argument and another person. The applicant was arresting following checks made by police which allegedly revealed that there were two interstate warrants against him outstanding. The applicant has not raised any issue in these proceedings concerning those two arrests.
It is common ground that the applicant was arrested on 29 September 1999 at the Tandanya Indigenous Cultural Centre where he had allegedly refused to leave the premises when asked to do so by staff of the centre. The applicant, Ms Kirstie Parker and Jonathon Lee Jackson all gave evidence relating to that incident. It is the applicant’s case that he sought and was denied an interview at that time with Ms Parker. Ms Parker gave evidence that the applicant had verbally abused staff members and that she had requested the applicant to leave the premises and he refused. The applicant concedes that he was escorted from the premises, warned not to re-enter the premises and that he did re-enter the premises. The applicant was thereupon arrested. There is nothing in the evidence before me to indicate that any racial discrimination was involved in that arrest or, indeed, in the preceding events on that day.
The applicant was arrested by a serving officer of the police force on 29 April 1998 at the Aldinga Beach Medical Centre, following an alleged assault by the applicant on his de facto partner, Ms Terase Kelly. The applicant and Paul Duncan Waye gave evidence relating to that arrest. It is common ground that the applicant was escorted from the Aldinga Beach Medical Centre on that day following a request for assistance to the police. It is also common ground that the applicant was arrested outside the medical centre and conveyed to the Christies Beach Police Station where he was charged with assault occasioning actual bodily harm and damage to property. What is in dispute is what occurred when the applicant was being escorted from the medical centre. The applicant was carrying a young child at the time and police officer Waye had his hands upon the applicant in the course of escorting him from the premises. The applicant alleges that he was thrown into the external glass doors of the premises. Officer Waye gave evidence that the applicant attempted to open the glass door by kicking it (his arms being held) causing the glass to shatter. I found Officer Waye to be a credible and reliable witness. I accept the evidence of Officer Waye as more reliable than that of the applicant. I am satisfied that in this incident there was no racially discriminatory conduct by officers of the fourth respondent to the applicant.
The applicant was also arrested by a serving officer of the fourth respondent on 8 May 2000 following an incident at the Office of State Aboriginal Affairs. At that time the applicant was arrested on a charge of disorderly behaviour. The applicant, Ms Kirstie Parker and police officer Michael James Quinton each gave evidence relevant to this issue. It is common ground that on 8 May 2000 staff at Tandanya requested police assistance following a visit to Tandanya by the applicant and Officer Quinton attended in response to that request. The applicant had allegedly abused staff at Tandanya and Kirstie Parker (who is Aboriginal) was allegedly called a “white fucking cunt”, “fat cunt” and “coconut”. By the time Officer Quinton arrived the applicant had left Tandanya and Officer Quinton was informed that he had gone to the State Office of Aboriginal Affairs. Officer Quinton then attended the State Office of Aboriginal Affairs and gave evidence that he witnessed the applicant verbally abusing staff members. Officer Quinton then arrested the applicant for disorderly behaviour, handcuffed him and took him from the building. He was read his rights, conveyed to the city watch house and was charged and placed in a cell.
The applicant denied using offensive or abusive language and gave evidence that he was being prevented by staff at Tandanya and the State Office of Aboriginal Affairs from going about his lawful business. It is not disputed that the applicant was entitled to visit these premises. What is in issue is what the applicant did when he got there and whether it warranted the police action that was taken. I find the evidence of the applicant to be unreliable on this point. I was impressed with the evidence of Officer Quinton, who I found to be a frank, honest and open witness. I accept his evidence and that of Kirstie Parker. There were ample grounds for Officer Quinton to take the action that he did and no act of discrimination was involved.
The final incident in issue occurred on 11 April 2000 when the applicant was arrested by police officer Steven Thalborne. Officer Thalborne arrested the applicant for using offensive language and for escaping from custody in Hindley Street, Adelaide on that date. Officer Thalborne had approached the applicant following a complaint regarding his behaviour made by a member of the public. The applicant and Steven Mark Thalborne gave evidence relating to this incident. The applicant gave evidence that when walking in the Rundle Mall he saw a female Japanese tourist busking by pretending to play a didgeridoo to the sound of taped music. The tourist had apparently been issued with a busking permit by the City Council. The applicant took exception to this performance for cultural reasons (he gave evidence that females were not permitted to play the didgeridoo) and because he thought that the performer was inappropriately dressed in a revealing outfit and that the performance was generally degrading to Aboriginal culture. The applicant approached the busker and, finding that she did not speak English, he by signs instructed her to stop performing. No evidence is available from the busker as to what she recalls occurred but it seems that an onlooker became concerned by the incident and requested police assistance.
It is common ground that the applicant was intercepted at the intersection of Hindley Street and King William Street by Officer Thalborne and that a conversation ensued between them. The applicant gave evidence that Officer Thalborne used aggressive language to him and made a derogatory comment about the “stolen generation”. Officer Thalborne gave evidence that it was the applicant who was belligerent and threatening. There was a struggle and the applicant fled. Officer Thalborne gave chase and a short time later the applicant was located and detained.
It may have been inappropriate for the City Council to issue a busking permit to the Japanese tourist. I also accept the applicant’s evidence that the performance by the busker was at least culturally inappropriate. Nevertheless the applicant took the law into his own hands by stopping the busker’s performance. The appropriate course would have been for him to complain to the City Council about the issue of the busking permit in these circumstances. Whatever the applicant said or did to the female busker caused a member of the public sufficient concern to call for police assistance. Officer Thalborne, being summoned, simply did his duty. He did not seek out the applicant for discriminatory treatment. I find that when Officer Thalborne spoke to the applicant an argument ensued. I find that it was the applicant who instigated that argument. I find that Officer Thalborne, in the pressure of the moment, did raise his voice. It was the applicant, not Officer Thalborne, who made a comment that related to the “stolen generation” and that occurred later, at the city watch house. Officer Thalborne did concede that he made a statement, or statements indicating that he was not interested in the applicant’s cultural views. His evidence was that the applicant’s race and cultural views were irrelevant. I accept that evidence. Whether or not Officer Thalborne lost his temper in responding to what was said to him by the applicant, he did not do an act contrary to s.18C. Neither did Officer Thalborne breach the RDA in arresting the applicant, and in subsequently pursuing him and in apprehending him. He had been called to investigate and incident and was doing his duty. He had good cause to stop and speak to the applicant and the applicant aggravated matters by his conduct. I find that it was the applicant’s conduct which led to his arrest.
I conclude, therefore, that the applicant fails in his application against all of the respondents. Accordingly, I must dismiss his application.
As to the issue of costs the general principle is that costs follow the event and there is no reason to depart from that principle in the case of the proceedings against the first and second respondents. Ordinarily, I would have said also that there is no reason to depart from that principle in relation to the third and fifth respondents. This is not a case for the application of the exception to the general principle which I stated in Low v Commonwealth [2000] FMCA 6 and that I applied in Gibbs v Wanganeen [2001] FMCA 14.
The applicant has had ample opportunity to consider his position and to assess the merits of his case. The fact is that the proceedings against the third respondent should never have been brought. The proceedings against the first respondent were doomed to failure and that result should have been clear to the applicant. The proceedings against the second, fourth and fifth respondents were properly brought, although unsuccessful. I note that costs are not sought by Mr Ahern on behalf of those respondents. Therefore, the orders that I will make are as follows:
(1)The application is dismissed.
(2)The applicant is to pay the costs of the first and second respondents, to be taxed in accordance with the Federal Court Rules if not agreed.
NOTE:Settlement and entry of orders is dealt with under section 36 of the Federal Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 July 2001
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