FEDERAL COURT OF AUSTRALIA

Creek v Cairns Post Pty Ltd [2001] FCA 1007

DISCRIMINATION LAW - racial discrimination - racial hatred - publication of photographs - whether objective test to be applied in determining if the act is reasonably likely to offend or humiliate - perspective to be considered - meaning of “because of” - relevance of motive, intention or purpose - whether causal connexion required - whether the defence of a “fair and accurate report” would apply - considerations relevant to an award of damages.

STATUTES - whether to have consideration of Explanatory Memorandum, section title or heading in interpretation of statutory provisions - when to have regard to the plain words of a provision

WORDS AND PHRASES - “because of”

Statutes

Acts Interpretation Act 1901 (Cth) s 13(1)

Anti-Discrimination Act 1977 (NSW) S 24(1), (3)

Crimes Act 1914 (Cth)

Equal Opportunity Act 1984 (Vict)s 17(1)

Racial Discrimination Act 1975 (Cth)ss 9(1), 9(1A), 18B, 18C

Racial Hatred Act 1995

Racial Hatred Bill 1994

Cases

Aboriginal Legal Rights Movement v State of South Australia (1995) 64 SASR 551 Cited

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Discussed

Australian Medical Council v Wilson & Ors (1996) 68 FCR 46 Referred to

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Referred to

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Applied

Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 Cited

James v Eastleigh Borough Council [1990] 2 AC 751 Referred to

Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 Referred to

R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 Referred to

Waters v Public Transport Corporation (1991) 173 CLR 349 Discussed

Explanatory Memorandum to the Racial Hatred Bill 1994

Report of the National Inquiry into Racist Violence in Australia

The Royal Commission into Aboriginal Deaths in Custody

PATRICIA DONNA CREEK v CAIRNS POST PTY LTD

Q 4 OF 2001

KIEFEL J

BRISBANE (Heard in Townsville)

31 JULY 2001

THE COURT ORDERS THAT:

1.         The application will be dismissed.

2.         The parties have liberty to apply in relation to the question of costs.

THE COURT DIRECTS:

3.         Any application for costs be made by way of written submissions forwarded to my Associate by 12 noon on Friday 3 August 2001.

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

REASONS FOR JUDGMENT

1                     On 31 July 1997 The Cairns Post published an article concerning the custody of a two year old Aboriginal girl, Melita Kepple.  The report concerned the decision of the Queensland Department of Family Services, Youth and Community Care, to take the child from foster care with a white family and place her into the care of the applicant, Ms Creek.  Ms Creek also had the care of the child’s two brothers.  Their mother, a relative of Ms Creek, had been killed in a car accident in 1995.

2                     The principal issue which the article explored was whether the Department’s decision was a reaction to the “Stolen Generation” report, which had been published earlier that year and had spoken of Aboriginal people having in the past suffered because of their removal from their families.  The foster parents themselves wondered whether this could be so, as they said they were otherwise at a loss to understand why the child was taken from them.  The child had been in their care since early 1996.  They had the support of some Aboriginal elders who considered the child had been given to them according to Aboriginal adoption laws.  The Department explained its stand - that the child should be raised in her own community with her brothers;  and the view that she was “home” was echoed by the applicant.  The case was said to have divided the Aboriginal community.

3                     The report was written by a journalist with the Australian Associated Press service.  The Cairns Post, the respondent,  is a client of that service and obtained the report from it.  No journalist directly employed by the respondent was involved in the preparation of the report.  It was not suggested in final addresses that the report was not balanced in its discussion of the various views, although the applicant was herself concerned and upset to be described as a “distant relative”.  This was the only report shown to have been published by The Cairns Post.  The newspaper is circulated in Coen, where the applicant resides, and in other places in and around Cairns and in North Queensland.  Other reports were published by The Courier-Mail both prior to and following The Cairns Post publication.  Although the applicant said that The Courier-Mail is not widely circulated in the Coen area, it would seem that she became aware of the content of some of those reports.  They contained comments to the effect that she had had alcohol-related problems in the past and had assaulted someone.  These reports are not however the subject of complaint in these proceedings.  Their relevance to the applicant’s claim for damages is a matter I shall turn to again later.

4                     What concerned the applicant was not the written report, but the photograph of her which accompanied it.  Three photographs were placed around the heading “Torn between families”.  In addition to a photo of the child Melita, there was a photo of the couple, Mr and Mrs MacDonald, and one showing the applicant.  The difference between the photographs, and the matter which caused the applicant to be upset and humiliated, was that the couple were presented in their living room with a comfortable chair, photographs and books behind them;  the photograph of her showed her in a bush camp with an open fire and a shed or lean-to in which young children could be seen.

5                     The photographs which accompanied the report were chosen and placed by the respondent after resort to the photographic library of News Limited in Sydney.  Its editor, Mr Iedema, says that the photograph of the applicant there shown was the only photograph available.  It appears to be the case that the photograph was taken with the applicant’s consent but on an earlier occasion, when the applicant had assisted in locating some New Zealand backpackers who had become lost in a remote area.  The bush camp is some four hours drive from Coen and is utilised by the applicant and her family principally for recreational purposes.  The applicant says that the photograph portrayed her as a primitive bush Aboriginal and implied that this was her usual lifestyle, one in which Melita would have to live.  In reality the applicant at all relevant times lived in a comfortable, four-bedroom brick home in Coen with the usual amenities. The newspaper’s case is that the photographs were inserted only to introduce the people involved in the debate to readers and this is how a reasonable reader would have viewed the photographs.

6                     The fact that the photographs may have wrongly, which is to say inaccurately, portrayed the applicant’s usual living circumstances does not itself establish the complaint.  Section 18C(1) Racial Discrimination Act 1975 (Cth) (“RDA”), upon which the applicant’s complaint is founded, provides:

“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.”

7                     Section 18B provides:

“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”.

8                     These sections, which were introduced by the Racial Hatred Act 1995, appear in Part IIA which is entitled:

“PART IIA - PROHIBITION OF OFFENSIVE BEHAVIOUR BASED ON RACIAL HATRED”

9                     Part II is entitled “PROHIBITION OF RACIAL DISCRIMINATION”.

10                  Section 9(1) 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 purpose or 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.”

11                  It may here be observed that s 18C(1)(b) refers to the act complained of being “done because of the race … of the other person” and s 9(1) refers to the act constituting discriminatory conduct as being “based on race …”.   Section 9(1A) deals with indirect discrimination, where compliance with certain requirements or conditions would itself effect discrimination, it deems the act requiring compliance as involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin. 

12                  The first enquiry of s 18C is whether the act in question, here the publication of the photograph of the applicant, can in the circumstances be regarded as reasonably likely to offend or humiliate a person in the applicant’s position.  The test is, as Drummond J observed in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 [15], necessarily objective.  For this enquiry what brought about the action constituting the “behaviour” in question and what the applicant felt are not relevant. 

13                  It is necessary first to consider the perspective under consideration, which is to say the hypothetical person in the applicant’s position or the group of which the applicant is one.  A reference to the person’s race may be too wide a description in some cases.  That would be so here, where Aboriginal peoples’ views, about being portrayed as having a more traditional lifestyle, will differ depending upon where and in what circumstances they live.  In that respect I consider the perspective suggested by the applicant’s counsel in submissions to be apposite, namely that of an Aboriginal mother, or one cares for children, and who resides in the township of Coen.  Such a person would, in my view, feel offended, insulted or humiliated if they were portrayed as living in rough bush conditions in the context of a report which is about a child’s welfare.  In that context it is implied that that person would be taking the child into less desirable conditions. The offence comes not just from the fact that it is wrong, but from the comparison which is invited by the photographs.  That is, I consider, how a reasonable reader would have viewed the photographs.  So far as concerns the respondent’s submission that a reader would simply look at the people involved in the drama, it is not just the faces of the parties which are shown in the photographs.  A background is also provided to them and in each case it conveys what might be taken as the parties’ lifestyle. A comparison is in my view invited.

14                  The respondent submitted that only very serious and offensive behaviour was intended as the subject of s 18C.  This can be seen from the heading to the Part, which requires the behaviour to be based on racial hatred, the Second Reading Speech and the Explanatory Memorandum to the Racial Hatred Bill 1994.  The Memorandum said that the Bill addressed concerns highlighted by the findings of the “Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody” and in doing so, the Bill intended to close a gap in the legal protection available to the victims of extreme racist behaviour.

15                  It needs to be borne in mind, when reviewing speeches or writings about the Bill, that in addition to providing for the civil prohibition which became s 18C, it was then intended to create three criminal offences relating to inciting racial hatred or threatening racial violence.  Those proposed offences did not however survive the federal legislative process and do not appear as sections in the Crimes Act 1914 (Cth) as was intended.  The Memorandum went on:

“The Bill is intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large.  The Bill is based on the principle that no person in Australia need live in fear because of his or her race, colour, or national or ethnic origin.”…

“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.”

The s 18C provision was described as “…the proposed prohibition on offensive behaviour based on racial hatred …”.

16                  Pursuant to the section the nature or quality of the act in question is tested by the effect which it is reasonably likely to have on another person of the racial or other group referred to in par (b) of the subsection.  To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights.  Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective.  If par (a) of the subsection is established, as it is here, it is necessary then to consider the additional requirement relating to the reason for the act.

17                  The title says that the prohibition is against behaviour which is based on racial hatred, but the heading to the section simply refers to the reason for it being “race, colour or national or ethnic origin.”  This is reiterated in s 18B, which deals with acts being done for more than one reason.  So long as one of those reasons is one of the four listed in the subsection, the act in question is taken to be for that reason. 

18                  Headings are to be taken as part of the statute (s 13(1) Acts Interpretation Act 1901 (Cth)).  Drummond J in Hagan [34] considered that the heading to Part IIA should be taken into account as part of the statutory context, referring to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, where it was said that the modern approach to statutory interpretation was to consider context at the outset and this included the mischief which, it could be discerned, the statute intended to remedy.  Whilst one may accept that hatred of other races is an evil spoken of in the statute, I do not consider that the heading creates a separate test - one which requires the behaviour to be shown as having its basis in actual hatred of race.  Sections 18B and 18C make it plain that the prohibition will be breached if the basis for the act was the race, colour, national or ethnic origin of the other person or group.  Whilst the reason for the behaviour in question may be a matter for enquiry, and this is a topic I will shortly turn to, the intensity of feeling of the person whose act it is, is not necessary to be considered, although in some cases it might shed light on what is otherwise inexplicable behaviour.

19                  There have been differences of view expressed about the meaning of phrases such as “on the ground of” and “by reason of” in the context of discrimination legislation, and as to whether they require a causal connexion between the act complained of and the characteristic or attribute of the person identified in the legislation, which is to say the reason for the conduct.  In some judgments it has been held that it does not matter if intention or motive are absent.  This was the view expressed by Deane and Gaudron J in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 176.  Their Honours were dealing with provisions of the Anti-Discrimination Act 1977 (NSW)(s 24(1) and s 24(3)) which are similar to s 9 and s 9(1A) RDA.  Section 24(1) provided that a person discriminated against another if, “on the ground of his sex”, or “a characteristic that appertains generally to” or “is generally imputed to persons of his sex, he treats him less favourably than in the same circumstance, or circumstances which are not materially different, he treats or would treat a person of the opposite sex”.  Section 24(3) provided for indirect discrimination.  And in Waters v Public Transport Corporation (1991) 173 CLR 349, 359, Mason CJ and Gaudron J considered that s 17(1) of the Equal Opportunity Act 1984 (Vict), which refers to discrimination “on the ground of the status or by reason of the private life of the other person”, required only that the material difference in treatment be based on the status or private life of that person, notwithstanding an absence of an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated.  Such views are in line with R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 (HL) referred to in Waters (and see also James v Eastleigh Borough Council [1990] 2 AC 751 (HL)).

20                  Their Honours’ reasoning was also that the first of the discrimination provisions, similar in effect to s 9 RDA set out above, extend to acts of indirect discrimination.  In cases of indirect discrimination motive or intention play no part.  The judgments of Dawson and Brennan JJ in Banovic (184, 171) and Dawson, Toohey and McHugh JJ in Waters (392-3, 401-2) however hold that provisions like ss 9 and 9(1A) RDA are mutually exclusive of each other.  Such a conclusion is not directly relevant to any issue here concerning s 18C RDA, but it may well explain the construction placed on phrases such as “on the ground of” and “by reason of” by Mason CJ, Deane & Gaudron JJ.  McHugh J in Waters (400-1) considered that the examples given by Deane and Gaudron JJ in Banovic, where intention or motive could not be said to be a necessary condition of liability, were cases falling within the concept of indirect discrimination dealt with under the separate subsection.  His Honour expressed the following, contrary view of the meaning to be given to the words of the requirement:

“The words “on the ground of the status or by reason of the private life of the other person” in s. 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against.

…

The words “on the ground of” and “by reason of” require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (“the victim”).  The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.”

21                  His Honour went on to say that, whilst those determining whether discrimination has occurred are not bound by “the verbal formula” which the alleged discriminator has used, if they would in any event, have acted in the way they did or if they acted genuinely on a non-discriminatory ground, they cannot be said to have acted “on the ground of the status or by reason of the private life” of the victim.

22                  In my view this accords with the reasoning of Dawson J in Banovic, which described the enquiry as one as to the “true basis” or “true ground” of the action in question.  His Honour also held that the subsection was not to be supplied subjectively, which I take to mean not by reference only to what the person whose conduct in question provides as a ground or basis for the action.  The enquiry considers what was in truth likely to have given rise to it, when regard is had to all the circumstances,  and this would include the nature of the conduct and the words and expressions used.

23                  Such an approach would also seem to me to address the concerns expressed by Deane and Gaudron JJ (Banovic, 176) that discrimination legislation operates with respect to unconscious acts and that it is not necessary that there be a conscious appreciation, on the part of the discriminator, of their actions.  Accepting this, it is not apparent that a search for the true reason would limit the application of the legislation.  A statement by their Honours appears to accept that this is the proper enquiry (at 176-177):

“And there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision.  Thus, in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision.  In certain situations that common factor may well be seen to be the true basis of the act or decision.  And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.

24                  In my respectful view the approach taken by McHugh J gives meaning to words such as “on the ground of” and “because of”.  The need to have regard to the plain words of the sections was discussed in some detail by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301, 322.  Beyond that the matter is one of factual enquiry.

25                  In Australian Medical Council v Wilson & Ors (1996) 68 FCR 46, 58 (Full Court) Heerey J referred to the judgment of Doyle CJ in Aboriginal Legal Rights Movement v State of South Australia (1995) 64 SASR 551, 553 where his Honour held that the enquiry under s 9 RDA:

“…is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.”

26                  I do not understand this view to be contrary to that of McHugh J.  Whilst Doyle CJ had said that it did not mean that the inquiry is one as to motive, his Honour later refers to the question whether race is exposed “as the true basis of the decision”.

27                  I should add that Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines (321-2) equated the words “by reason of” with “because of”, “due to”, “based on”, “or words of similar import which bring something about or cause it to occur”; although it seems to me that “because of” perhaps marks out the causal requirement more clearly.  I am aware that Weinberg J in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, 30 has expressed the view that “based on” in s 9(1) RDA encompasses a broader, and perhaps a non-causative relationship, but it is not necessary for me to deal with that question further here (and see also Australian Medical Council v Wilson).

28                  In the present case the question is whether anything suggests race as a factor in the respondent’s decision to publish the photograph.  The context of the article is of course race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race can be taken to have actuated the publication.  It is something which commonly occurs in media reports.  Rather the enquiry is whether the publication of a photograph, showing the applicant’s apparent living circumstances, was motivated by considerations of race.

29                  There is nothing in the article itself which provides an insight on this question.  I have said before that a reader might reasonably draw a comparison between what is depicted in the two photographs.  The reader might assume the photograph to accurately portray the applicant’s living circumstances.  If there was anything to suggest that the respondent, in arriving at its decision to include the photograph, had acted upon an assumption that this was the case, or if it had chosen the photograph when others depicting the true circumstances were available, I consider that the requirement of race as a cause may well have been satisfied.  The evidence does not suggest this.  It is also possible that the respondent’s employees just did not turn their mind to what the photograph conveyed, in addition to the portraits of the parties.  That is to say the respondent may be guilty of thoughtlessness, but that does not qualify its conduct as unlawful under the section.  The second requirement is not established and the applicant’s complaint is not therefore made out.

30                  It is strictly unnecessary to consider the defence raised, but since the matter remained in this Court because such a defence was thought not previously to have been considered I should comment briefly upon its application.

31                  Section 18D contains exemptions which include the following:

“18D.  Section 18C does not render unlawful anything said or done reasonably and in good faith:

…

(c)        in making or publishing:

(i)         a fair and accurate report of any event or matter of public interest; or

(ii)        a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”

32                  The section, by the Explanatory Memoranda, is said to balance the right to free speech and the protection of individuals. The section has borrowed words found in defamation law.  I do not think the notion of whether something is in the public interest is to be regarded as in any way different and here it is made out.  For a comment to be “fair” in defamation law it would need to be based upon true facts and I take that to be the meaning subscribed to in the section.   What is saved from a requirement of accuracy is the comment, which is tested according to whether a fair-minded person could hold that view and that it is genuinely held.  Subpar (c)(i), upon which the respondent would rely, incorporates both the concepts of fairness and accuracy.  It is the latter requirement that the photographs cannot fulfil if they are taken as a “report” on the living conditions pertaining to the applicant.

33                  For completeness I am obliged to consider the orders I would have made, including, damages I would have awarded, had the applicant made out her case.

34                  It does not seem to me, after a lapse of almost four years, that an extensive apology would be particularly worthwhile with respect to the wider readership.  It may however have helped to vindicate the applicant in the eyes of her own community and for that reason I would have been minded to order a short apology.  The applicant’s claim for damages is now limited to those which might compensate her for the distress she had felt as a result of this report, since she no longer pursues a claim for economic loss.  A difficulty is presented by the other reports which were published before and after this one and which were likely to have caused the applicant much anxiety when she came to hear about them because of the references to her alleged past conduct.  The whole debate was upsetting to the applicant.  I accept however that this report was likely to have been circulated more widely amongst her community.  Whilst some would have known the truth about her living conditions, I take it from the applicant’s evidence that any publicity which portrayed her in a less than favourable light was likely to cause discussion amongst others.  She said that she felt this so strongly at her workplace that she was obliged to take some time off and although she returned, she ultimately left her position permanently.  The applicant had held high positions in her community and I accept the hurt to her would have been greater through perceived loss of the regard in which she was formerly held. 

35                  A finding of contravention would have meant that the respondent had acted for racist reasons.  Its failure or inability to acknowledge this and the withholding of an apology are matters to be taken into account in assessing the extent of the injury felt by the plaintiff and the compensation to be awarded to redress that.  It is not in my view necessary to consider separate and additional awards of aggravated damages.  I would have awarded $8,000 damages.

36                  The application will be dismissed.

Associate:

Dated:              31 July 2001