FEDERAL COURT OF AUSTRALIA

McGlade v Lightfoot [2002] FCA 1457

HUMAN RIGHTS – RACIAL DISCRIMINATION – respondent made statements to journalist during an interview in a parliamentary office – statements published in newspaper article under that journalist’s byline – statements republished in another newspaper attributing the source as being the first article – whether respondent made those statements “otherwise than in private” – whether the making of those statements was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people – whether respondent’s act was done because of the race or ethnic origin of a person or people in the relevant group – onus of proof in relation to statutory exemption – whether in addition to the making of a declaration and an order for payment of costs, the Court should order (as sought by the applicant) the respondent to make a substantial donation to the Aboriginal Advancement Council.

Racial Discrimination Act 1975 (Cth), s 18B, 18C and 18D

Kowalski v Domestic Violence Crisis Service Inc (2001) 113 FCR 67 followed

Feghaly v Oldfield (2000) EOC 93-090 referred to

March v Stramare (1991) 171 CLR 506 applied

Alphacell Ltd v Woodward [1972] AC 824 referred to

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

Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 applied

Jones v Scully [2002] FCA 1080 applied

Jones v Toben [2002] FCA 1150 applied

Vines v Djordjevitch (1955) 91 CLR 512 followed

HANNAH McGLADE v SENATOR ROSS LIGHTFOOT

W568 of 2001

CARR J

26 NOVEMBER 2002

PERTH

THE COURT DECLARES THAT:

The respondent has engaged in conduct rendered unlawful by Part IIA (s 18C) of the Racial Discrimination Act 1975 (Cth) by making the following statements to a journalist from the “Australian Financial Review” on or about 2 May 1997, namely:

“Aboriginal people in their native state are the most primitive people on earth”; and

“If you want to pick out some aspects of Aboriginal culture which are valid in the 21^st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I’d be happy to listen to those.”

AND THE COURT ORDERS THAT:

The respondent pay the applicant’s costs other than the costs relating to written submissions faxed, without leave, to the Court yesterday seeking certain costs on an indemnity basis and the limited oral submissions to like effect made today.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”), alleging that conduct engaged in by the respondent was unlawful under s 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”).  The applicant seeks a declaration to that effect and an order that the respondent make a donation to the Aboriginal Advancement Council.  The conduct includes certain statements attributed to the respondent and published in an article in the Australian Financial Review and republished in a further article in the West Australian newspaper. 

procedural background

2                     On 16 May 1997, the applicant filed with the Human Rights and Equal Opportunity Commission (“the Commission”) a complaint substantially in the same terms as the complaint made in this application.  On 21 January 1999, Commissioner Johnston, after hearing argument at a directions hearing as to whether the matter should be dismissed pursuant to what was then s 25X of the Act, summarily dismissed that application.  The applicant applied to this Court for an order of review of Commissioner Johnston’s decision.  On 18 October 2000, for reasons published on that date, I set aside the Commission’s decision of 21 January 1999 and remitted the applicant’s complaint to the Commission for decision according to law. 

3                     In the meantime, on 13 April 2000, amendments contained in the Human Rights Legislation Amendment Act (No 1) (1999) (Cth) (“the HRLA Act”) came into effect.  In the HRLA Act the date 13 April 2000 is referred to as “the starting day”.  Section 13(1) of the HRLA Act relevantly provided that if before the starting day a holding of an inquiry into a complaint had started under the Act and the complaint had not been withdrawn, the amendments made by Schedule 1 to the HRLA Act did not apply in relation to that complaint.  The relevant amendments made by Schedule 1 to the HRLA Act removed the Commission’s hearing function and conferred it on this Court. 

4                     During the course of the hearing of the application for an order of review, I raised with counsel for the applicant the question of the Commission’s jurisdiction to hear her complaint if its decision were set aside, bearing in mind the amendments effected by the HRLA Act.  By leave, the applicant’s solicitors faxed to my associate, after the hearing, an incomplete photocopy of portions of the transitional provisions of that Act.  Neither party contended that the Commission would lack jurisdiction.  I expressed the view – see McGlade v Human Rights and Equal Opportunity Commission [2000] FCA 1477 at [55] that the Commission retained jurisdiction because the inquiry had started under the Act and had not been withdrawn.  I am somewhat comforted by the fact that Madgwick J independently (without having been referred to my decision in McGlade) came to the same conclusion in Kowalski v Domestic Violence Crisis Service Inc (2001) 113 FCR 67 at [17]. 

5                     However, when the applicant’s complaint was remitted to the Commission, it did not go back to Commissioner Johnston (whose appointment was apparently about to come to an end), but was instead allocated to Commissioner Innes who heard the complaint on 9 July 2001 and reserved his decision.  Those circumstances were relevantly identical to what had happened in Kowalski.  Madgwick J handed down his judgment in Kowalski on 10 August 2001.  In reasons published on that date, his Honour expressed the view that if the application in that matter, following judicial review, had been remitted to the same Commissioner then it would have proceeded under the Act as unamended by the HRLA Act.  However, his Honour held that because the complaint had been referred to another Commissioner who, as at 13 April 2000, was in the process of preparing for a new inquiry, but had not commenced that inquiry, then s 13 of the HRLA Act did not apply.  Accordingly, s 12(2) of the HRLA Act operated so that on the starting day the President of the Human Rights and Equal Opportunity Commission was taken to have terminated the complaint under s 46PH of the HREOC Act as amended.  Section 14 of the HRLA Act, in those circumstances, required the President of the Commission to give a notice of termination of the complaint. 

6                     In the present matter, after due notice to the parties (which included reference to the decision in Kowalski), the President of the Commission gave a notice of termination of the applicant’s complaint, with the result that under s 46PO(1) of the HREOC Act the applicant became entitled to make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination. 

7                     Although, with the greatest respect, I have some reservations about the reasoning on this point in Kowalski, I propose, in accordance with the usual principles, to follow that decision.  Accordingly, I accept the applicant’s submission that this Court has jurisdiction to hear the application. 

8                     Section 46PO(1) of the HREOC Act relevantly provides that if a complaint has been terminated by the President of the Commission under s 46PH and the President has given a notice to any person under s 46PH(2) in relation to the termination, any person who was “an affected person” in relation to the complaint may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.  Section 46PO(2) provides that such an application must be made within 28 days after issue of the notice by the President, or within such further time as the Court allows.  The President gave that notice on 14 November 2001 and the application was made to this Court on 12 December 2001, just within time.  The expression “an affected person” is defined in s 3 of the HREOC Act as meaning a person on whose behalf the complaint was lodged.  The complaint to the Commission was lodged on behalf of the applicant.  The term “unlawful discrimination” is relevantly defined as meaning any acts that are unlawful under Part II or IIA of the Act.  Section 18C is in Part IIA of the Act.  In my view, the applicant has standing and the application has been properly filed. 

9                     The respondent was, until fairly recently, legally represented.  In fact at one stage of these proceedings his solicitors filed, on his behalf, a notice of motion to strike out the application on the basis that it did not disclose any reasonable cause of action.  That motion was heard on 12 June 2002 with counsel appearing for both parties.  The motion was dismissed on 13 June 2002, for reasons which I then published. 

10                  I had previously made directions for the filing of affidavits by each party.  At that stage (13 June 2002) only the applicant had done so. 

11                  On 13 June 2002, I made directions orders along the following lines.  The applicant’s affidavit was to stand as her witness statement in the application.  Four witness statements and any annexures thereto annexed to the applicant’s affidavit were to stand as further witness statements of those witnesses upon whose evidence the applicant intended to rely at the hearing.  The respondent was given leave, within 28 days, to file and serve witness statements from those witnesses upon whose evidence he intended to rely at the hearing.  Each party was given leave, by notice in writing served on the other party within 21 days of being served with a witness statement, to object to the whole or any part of that witness statement being received into evidence at the hearing.  In the absence of such objection, and subject to the right of cross-examination and to any orders of the trial judge, those witness statements were to be admitted into evidence at the hearing.  Any party who wished to cross-examine the maker of any filed witness statement was to file and serve notice to that effect no later than 21 days before the hearing date. 

12                  The respondent did not file and serve any witness statements.  On 3 October 2002, the parties were notified that this matter was listed for hearing on 7 November 2002.  On 9 October 2002, I caused a letter to be sent to the respondent’s solicitors referring to the direction which gave leave to the respondent to file and serve witness statements and noting that he had not done so.  The letter sought confirmation from the respondent’s solicitors that the respondent did not propose to call any witnesses at the hearing of the application.  By letter dated 10 October 2002, the respondent’s solicitors confirmed that they had been instructed that the respondent did not propose to call any witnesses at the hearing.  The respondent did not file and serve any notice objecting to any part of the applicant’s witness statements being admitted into evidence. 

13                  On 31 October 2002, the respondent’s solicitors filed a notice (pursuant to Order 45 rule 7 of the Federal Court Rules), that they ceased to act for the respondent.  They also filed an affidavit in accordance with Order 45 rule 7(3). 

14                  On 4 November 2002, the respondent faxed a letter to the District Registrar of the Court advising that he wished to withdraw his “input on this matter”, that he would not be represented at “the forthcoming Directions Hearing” and that he was “currently in Iran on parliamentary business” (a commitment made several months ago) and would not return until 10 November and would depart again on 11 November to attend further sittings of the Senate in Canberra. On 5 November 2002 the District Registrar faxed a letter to the respondent’s electoral office confirming that the hearing listed for 7 November 2002 was not a directions hearing, but was the substantive hearing of the application.  The respondent did not appear at the hearing.  Counsel for the applicant stated that his client was content to have the respondent’s letter of 4 November 2002 treated as being a set of submissions. 

the evidence

15                  At the hearing of this matter, in accordance with the abovementioned directions, I admitted into evidence the applicant’s affidavit sworn 5 March 2002, an earlier witness statement by her which was annexed to that affidavit, and those parts of the annexures to that affidavit which comprised photocopies of four witness statements, together with any annexures to those four witness statements.  There were other annexures to the applicant’s affidavit.  I have not dismembered that document, but only those parts of it which I have just mentioned were admitted into evidence.  The applicant gave short oral evidence as did Mr Damon Kitney, the journalist who wrote the article which appeared in the Australian Financial Review.

factual findings

16                  On the basis of the unchallenged evidence I make the following findings of fact.  The first set of findings is based on the witness statement and oral evidence of Mr Kitney.  His evidence was that on or about 2 May 1997, he requested and was granted an interview with the respondent at the respondent’s electoral office in Perth.  Mr Kitney tape-recorded the interview, having first told the respondent that he proposed to do so.  The respondent agreed to that.  As a result of that interview Mr Kitney wrote an article entitled “PM’s Lightfoot-in-mouth poser” which appeared in the Australian Financial Review on 9 May 1997 (“the Financial Review article”).  At that stage the respondent was a member of the Legislative Council of the Parliament of Western Australia, but had been elected to fill a vacancy in the Senate of the Commonwealth Parliament which had been created by the death of a senator from Western Australia.  The Financial Review article is in evidence. 

17                  It appears from the Financial Review article that during the interview the question arose of teaching Aboriginal culture in schools.  The Financial Review article included the following:

“Mr Lightfoot questioned interpretations of history which identified traditional Aboriginal people as being somewhere in the mid-point on the civilisation spectrum. 

“Aboriginal people in their native state are the most primitive people on earth.”  Mr Lightfoot said. “I think history has been distorted by people not accepting what I’ve said at face value”.

The former member of the Pastoralists and Graziers Association said as a result he remained vehemently opposed to the teaching of Aboriginal culture in schools. 

“If you want to pick out some aspects of Aboriginal culture which are valid in the 21^st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I’d be happy to listen to those,” he said.

“But otherwise I’m opposed to it”.”

[The words which I have underlined are identified in the application as “the respondent’s comments”.  The act of making those comments forms the basis of the complaint.  I shall refer to them in the same manner in these reasons.]

18                  Mr Kitney’s evidence is that what he wrote in the Financial Review article accurately represented the comments made by the respondent in the interview and that the respondent had never questioned him about the accuracy of the representation of his comments in the article. 

19                  I accept all of Mr Kitney’s evidence. 

20                  On 13 May 1997, an article was published in the West Australian newspaper.  In that article the respondent was reported as opposing the teaching of Aboriginal culture in Western Australian schools on the basis that “Aboriginal people in their native state were the most primitive on earth” and that the respondent’s views were that “many aspects of their culture, including sexual practices, were abhorrent”. 

21                  The applicant asserts in the application that by making the respondent’s comments the respondent contravened s 18C of the Act. 

22                  The applicant, in her witness statement, says that she is an Aboriginal person and a member of the Nyungar People.  She says that she read the respondent’s comments first in the West Australian newspaper and was offended, insulted, humiliated and intimidated by them.  She explains why the respondent’s comments were offensive, insulting, humiliating and intimidating for her.  In summary those reasons are as follows: 

·          she was an Aboriginal person and the comments were made with specific reference to “Aboriginal people”; 

·          to describe Aboriginal peoples’ killing and sexual practices as abhorrent indicated to her that aspects of Aboriginal culture were distasteful, disgusting, repugnant or detestable.  Such connotations were offensive to her because she was an Aboriginal person and they were made in direct reference to her culture and social system which she knew “not to be such things”;

·          when she read the respondent’s comments she was so shocked, “… I think that I was taken back to my childhood and youth where I was harmed in this way”. [The reference to being “harmed in this way” was a reference to having learnt as a child “the shamefulness that the dominant white Australian culture placed on Aboriginality”, that it was bad and degrading to be an Aborigine and that “[T]he schoolyard of the 1970’s defined this for me – I was one of them, an ‘Abo, boong nigger’”.  The applicant could also remember being called racist names as a child and young adult;

·          the applicant felt offended because the respondent’s comments perpetuated and supported stereotypes and prejudices that she had experienced as a school child.  She felt that the respondent’s position of power and influence gave the respondent’s comments credibility and authority.  The stereotypes to which the applicant referred included a schoolbook containing a picture of a naked Aboriginal man, standing one-legged and holding a spear.  At school she claimed that Aboriginal people were presented as backward and primitive and a hindrance to the white “settlers and discoverers”. 

23                  In oral evidence, the applicant said that not long after reading the article in the West Australian newspaper someone sent her a copy of the Financial Review article.  Her reaction was “just the same” as when she read the article in the West Australian newspaper and she was “very upset and angry for a long time after that”. 

24                  I accept the applicant’s evidence as being truthful. 

25                  There were three witness statements from other Aboriginal people.  The first was from Ms Mingli Wanjurri-Nungala.  Ms Wanjurri-Nungala is an Aboriginal person and an elder of the Nyungar People.  She said that she read the respondent’s comments in the West Australian newspaper and was offended, insulted, humiliated and intimidated by them.  She said that she was worried and stressed for a long period of time and was thrown into a mental headspin and suffering from a state of depression.  The reasons why the respondent’s comments were offensive, insulting, humiliating and intimidating to her were that:

·          she was an Aboriginal person and the comments were made with specific reference to Aboriginal people;

·          as a Nyungar elder she had worked very hard for many years against racist practices and to combat racist beliefs in the community.  Even after the growing reconciliation movement, even after meeting after meeting to discuss these issues, racist comments continued to be made.  When the respondent made his comments she felt a perpetuation of the degradation of Aboriginal people that should have ended many years ago, but which continued to exist;

·          she is a qualified teacher having graduated from University in 1979.  In year 10 at school she was not allowed to study history because she was an Aboriginal person.  She said she was unable to teach in schools because she witnessed and was the recipient of racism;

·          those personal experiences were why she fought so hard against racism in the community and why she felt pain from “hearing” the respondent’s comments;

·          even “after all these years the pain has not been numbed and I won’t let it be numbed because I know what he said is so wrong and has hurt me”.

26                  I accept the truth of Ms Mingli Wanjurri-Nungala’s evidence. 

27                  Next there was a statement from Mr Ben Taylor, an Aboriginal person and an elder of the Nyungar People.  Mr Taylor read the respondent’s comments in the West Australian newspaper.  He says that he was offended, insulted, humiliated and intimidated by them.  He said further that his reaction to the respondent’s comments was “… very emotional and I had very strong feelings of humiliation, hurt and pain”.  The respondent’s comments were offensive, insulting, humiliating and intimidating for him because they reminded him of a whole range of racist and degrading comments made, and events that occurred to him, over the years because he was an Aboriginal person.  The respondent’s comments took him back to memories of growing up.  The racist laws and conditions he endured under government policies and the feelings of inferiority and humiliation “returned in a big way”.  Mr Taylor said that he was born in the 1930s and grew up on the Walebing Reserve, a government settlement, between Moora and New Norcia.  He said that he still bore the scars and had memories of growing up there.  He said that he lived in a shed made of tin and was forced by “the white people” to eat with the dogs at the wood heap.  The conditions on the settlement were degrading and dehumanising.  He said further that at that time “…Nyungar People were still living with the legacy of the 1905 Aborigines Act” and what he described as “the racist policies and practices of A O Neville”. 

28                  Mr Taylor’s witness statement concluded with the following paragraphs:

“8.       In addition, when the respondent made the comment that Aboriginal people are ‘the most primitive people on Earth’ he justified a range of atrocities and ill-treatments, including those outlined above, that my family and I have had to endure on the basis that Aboriginal people are ‘primitive’.  This again reminded me of many awful comments from my past.

  9.       During my childhood in the 1940’s we were forced to live with fear and hatred of white men.  The white farmers would hit us with sticks and say, “we’ll teach bloody those boongs to work”.  When the respondent made the comments the feelings of fear and hatred returned and I was back in a time when we were treated like slaves and were beaten if we ran away or were shot at by police.  Those old wounds were opened up by the words of the respondent.

10.       The comments were intimidating because they made me aware of how fragile the position of Aboriginal people is in the dominant white society and that we should never take that for granted.  With the one comment made by the respondent, I felt we were once again animals and savages who were unequal and inferior to the white person.  I felt we were, therefore, transported in time to the same degrading position as our relatives under the 1905 Aborigines Act.”   

29                  I accept the truth of Mr Taylor’s evidence.

30                  The final witness statement from an Aboriginal person was that of Mr Clarrie Isaacs, another elder of the Nyungar People.  Mr Isaacs said that he was offended, insulted, humiliated and intimidated by the respondent’s comments.  I set out in full below the remainder of Mr Isaacs’ witness statement: 

“4.       My first reaction to the respondent’s comments was wondering what was it that motivated him to say those comments?  What was in it for him to say such racist and hateful things?  I thought that the respondent was clinging to outdated racist ideas and beliefs in order to deflect his responsibility for the welfare of Aboriginal people and lay all blame with us.  I believed that he was continuing his campaign of racist and negative attacks on Aboriginal people.

  5.       It was the public aspect of the comments that I found most offensive and insulting because it was a public belittlement of Aboriginal people as a race as well as our culture and spirituality with no grounds to base them on. His comments went beyond the grounds of reasonable comment and I believe they were a deliberate attack on us as a race. 

  6.       The respondent’s comments were made from a position of authority as a Member of Parliament.  I felt intimidated and frustrated because he seemed to give the views legitimacy and weight to the belief that Aboriginal people are dishonest, have no values or morals and have a culture that is abhorrent. 

  7.       The respondent’s comments were humiliating for me as they provide a justification for racism to the people who feed off such misinformation.  I was worried about how people might see me because of his comments as they may fuel the tension between white and black Australia and encourage racism and prejudice.  I was insulted and angry because his comments were a direct contributor to the emotive and racist attacks and abuse I have to face everyday when I walk down the street when obscenities are shouted at me from car windows.

  8.       The exact content of his comments was also insulting and offensive to me as an Aboriginal person because to describe Aboriginal people as primitive suggests that we are backward people or are savages and are inferior to the white person.  He failed to take into account the rich and complex culture and spirituality possessed by Aboriginal people and our highly developed economic and social systems.  He instead focused on, and therefore perpetuated, stereotypes and misinformation.”

the legislative framework

31                  Sections 18C and 18D of the Act are in the following terms:

“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.

(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.

18D   Exemptions

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

         (a)     in the performance, exhibition or distribution of an artistic work; or

         (b)     in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

         (c)     in making or publishing:

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

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

32                  Section 18B is relevant to the interpretation of s 18C.  It provides as follows:

“18B   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.”

reasoning

33                  In these reasons I shall refer to the making by the respondent of the respondent’s statements to Mr Kitney as “the respondent’s act”. 

Whether the respondent’s act was done “otherwise than in public”

34                  There does not appear to be any authority directly in point.  The applicant did not submit that the respondent’s act (making the respondent’s statements) occurred otherwise than in private, independently of the operation of s 18C(2).  The applicant’s case was that because what the respondent did had caused words to be communicated to the public, his statements were to be taken not to be done in private. 

35                  I note that in Feghaly v Oldfield (2000) EOC 93-090, Commissioner Beech referred to a statement given by the respondent in that case during the course of an interview with a journalist from “The Sunday Times”.  At p 11 of his reasons the Commissioner said this:

“The elements of that section [s 18C of the Act] are, in my view, established.  The statement by Mr Oldfield was not done in private (see s 18C(2)(a) and (b)).”

36                  Commissioner Beech gave no other reason for that conclusion so far as the application of s 18C(2) was concerned.  However, it appears from the report of the matter that the interview was conducted at a table in a café.  While I agree, respectfully, with the Commissioner’s conclusion in that case, I propose to approach the matter as if there were no relevant authority. 

37                  In my view, the question whether the respondent’s act caused his words to be communicated to the public is one of fact which must be determined by applying common sense to the facts of the particular case: March v Stramare (1991) 171 CLR 506 at 515. 

38                  The relevant facts are that the respondent was a politician who, at the material time, was moving from a State Parliament to the Commonwealth Parliament.  When Mr Kitney from the Australian Financial Review requested an interview, the respondent must have realised (and I so infer) that the interview had the purpose of obtaining his views on such matters as might be raised at the interview and that there was a reasonable likelihood that what he said would be published in the Australian Financial Review.  Mr Kitney recorded the interview with the assent of the respondent.  There is no evidence to suggest that the respondent asked that his comments be “off the record”.  The evidence, including the evidence that the respondent never complained to Mr Kitney about publication of his remarks, points quite clearly to the interview being “on the record” i.e. for publication. 

39                  I acknowledge that, once the interview had been conducted, the respondent may have had little say in whether his remarks were actually published.  So, to some extent, whether the story was published or “spiked” was largely out of his control. 

40                  However, on the facts of this matter I find that by the respondent’s act he caused his words to be communicated to the public within the meaning of s 18C(2)(a).  The respondent deliberately and intentionally engaged in conduct, the natural consequence of which was the publication of his words.  I infer that he intended that consequence, although it is not necessary to make that inference in order to find causation: Alphacell Ltd v Woodward [1972] AC 824 at 839.  Accordingly, I find that when the respondent made the respondent’s statements he did an act otherwise than in private. 

41                  In those circumstances, it may not be strictly necessary to consider whether the respondent caused the words which appeared in the article in the West Australian to be communicated to the public.  However, in case it is necessary, I hold that there was no break in the chain of causation between the making of the respondent’s statements and publication of the article in the West Australian newspaper.  It is common knowledge that when an article first appears in a nationally-published newspaper there is a reasonable prospect of it subsequently being published in a newspaper whose principal circulation is within a particular State.  In my view, there was such a natural progression in this matter from the publication of the respondent’s statements in the Australian Financial Review to the re-publication of it in the West Australian newspaper, in the respondent’s home State, where he had recently been elected to the Senate, as to constitute an unbroken chain of causation. 

Whether the respondent’s act was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people 

42                  The use of the words “reasonably likely” suggests that the test is an objective one.  The authorities confirm that this is the case: Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [12] and Jones v Scully [2002] FCA 1080. 

43                  In Hagan, Drummond J, at [15] said this: 

“It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant.  An objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section.  The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant?  But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?”

44                  In Jones v Scully, Hely J admitted evidence from the applicant about the subjective effect of the distribution of the respondent’s leaflets in that case on each of the applicant and his witnesses.  His Honour, following Hagan, ruled that that evidence was admissible, but was not determinative in answering the question. 

45                  I propose to take the same approach as that taken in Hagan and Jones v Scully. 

46                  The first logical step is to identify a person or a group of people who, on the basis of a reasonable likelihood, may have been affected in the manner described in s 18C.  In my opinion, the relevant person or a group of people would at least include an Aboriginal person or a group of Aboriginal persons leading a traditional way of life.  But Mr G M McIntyre, counsel for the applicant, submitted that the respondent’s act should also be assessed from the aspect of its reasonably likely effect on an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture.  I accept that submission.  In my view, there is no need to construe s 18C(1)(a) restrictively. 

47                  The next step is to assess, objectively, whether the respondent’s act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate any of those persons.

48                  In Creek at [16] Kiefel J expressed the opinion that:

“To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights.”

49                  Hely J in Jones v Scully referred to this passage in Creek with apparent approval.  His Honour also referred to the fact that in his Second Reading Speech, the Attorney-General had said that the Commission was familiar with the scope of such language and has applied it in a way that deals with serious incidents only: Hansard (15 November 1994) p 3341. 

50                  In Jones v Toben [2002] FCA 1150, Branson J in referring to the above passage in Creek sounded a note of caution at [92]:

“… I do not understand her Honour to have intended by the above observation to imply that a gloss should be placed on the ordinary meaning of the words that Parliament chose to include in s 18C of the RDA.  Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to “mere slights” in the sense of acts which, for example, are reasonably likely to cause technical, but not real offence or insult. (See also Jones v Scully per Hely J at [102]).  It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.”

51                  I intend to follow in this case the same approach taken by the Judges in the three cases which I have just mentioned.  It was common ground in those cases, as I have said above, that the words “offend, insult, humiliate or intimidate”, should be given their ordinary English meanings. 

52                  In Jones v Scully Hely J set out the various dictionary definitions of those words and made some observations with which I am in full agreement.  I set out below the relevant passages:

“103.  Dictionary definitions of the terms used in s 18C are as follows:

Offend

“1.       To irritate in mind or feelings; cause resentful displeasure in.

  2.       To affect (the sense, taste, etc) disagreeably.”

            (Macquarie Dictionary 3^rd Ed.)

In its chief sense “to hurt or wound the feelings or susceptibilities of; to be displeasing or disagreeable to; to vex, annoy, displease, anger; to excite a feeling of personal annoyance, resentment or disgust in (any one).”

(Oxford English Dictionary)

Insult

“To assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage.”

(Oxford English Dictionary)

Humiliate

“To lower the pride or self respect of; cause a painful loss of dignity to; mortify.”

(Macquarie Dictionary)

“To make low or humble in position, condition or feeling; to humble.”

(Oxford English Dictionary)

Intimidate

“1.       To make timid, or inspire with fear; overawe; cow.

  2.       To force into or deter from some action by inducing fear.”

(Macquarie Dictionary)

“To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence.”

(Oxford English Dictionary)

104.  The fact, if it be a fact, that assertions made in the leaflets may be wrong or inaccurate does not of itself establish a contravention of s 18C: Creek at [6].  A true statement, or one which might be shown in some way to be true, does not mean that the statement is incapable of being offensive: Patrick v Cobain [1993] 1 VR 290 at 294.

105.  In Worcester v Smith [1951] VLR 316, O'Bryan J held that behaviour, to be offensive within the context of “behaves in an offensive manner” in s 25 of the Police Offences Act 1928 (Vic) must be such as is calculated to wound the feelings or arouse anger, resentment, disgust or outrage in the mind of a reasonable person.  His Honour held that the mere expression of political views contrary to those probably held by the majority of the community, even when made in the proximity of the offices of those whose views are attacked, does not amount to such offensive behaviour.  A banner bearing the inscription “Stop Yank Intervention in Korea” was regarded by his Honour as an inoffensive statement of political views, even when carried outside the offices of the United States Consul.

106.  For the reasons explained by Wilcox J in CEPU v Australian Postal Corporation (1998) 85 FCR 526 at 534-535, criminal cases on offensive behaviour, whilst not determinative of the question which arises in the present case, do provide some general insight into the question of offensiveness.  In particular, they support the proposition that the expression or dissemination of views contrary to those held by a section of the community or even by a majority of the community will not necessarily be offensive (although in some circumstances it may), even if the expression of those views is hurtful to those who hold a different opinion.  As the outline in the Explanatory Memorandum to the Racial Hatred Bill states (p 1), the RDA: “is not intended to prohibit people from having and expressing ideas”.  In the context of the summary offence of offensive behaviour, conduct or language to be offensive must be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person: Watson, Blackmore and Hosking Criminal Law (NSW) at [9.7990].  In CEPU (supra) at 534 Wilcox J quoted the following observation by Kerr J in Ball v McIntyre (1966) 9 FLR 237 at 241:

      “Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions.  But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section.  Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may.”

107.  At p 243 in Ball v McIntyre, Kerr J said:

      “… behaviour to be offensive behaviour must be calculated to produce a stronger emotional reaction in the reasonable man than is involved in indicating difference from or non acceptance of his views or values.  The behaviour to be offensive would normally be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man.”

108.  In assessing whether the respondent’s actions offend s 18C(1)(a), it is necessary to consider the perspective from which these actions are to be viewed, namely the hypothetical person in the applicant’s position, or the group of which the applicant is one…”

53                  Mr McIntyre submitted that the respondent’s act would have been reasonably likely to offend the relevant persons in the sense of causing them to be wounded or hurt and to feel displeasure or annoyance, and thus to be offended.  They would also, so he submitted, be reasonably likely to be humiliated by having their pride or self-respect lowered and by being mortified and made to feel low or humble.  He did not submit that they would be reasonably likely to be intimidated. 

54                  I have examined the Australian Financial Review article and the subsequent article in the West Australian newspaper with a view to setting the respondent’s statements in context.  Part of that context includes, in my view, the circumstance that the respondent was then a Senator-elect giving an interview to a journalist from a prominent national daily newspaper having a wide circulation. 

55                  Initially the respondent is quoted as saying:

“Aboriginal people have enough rights in Australia as it is now.  No-one can kid me that 1.5 per cent of the people can own over half Australia already and have an implied right to the rest of Australia except the cities.”

“The mere fact that some of their forbearers (sic) were here first with no title or no ownership of land hardly validates them owning a significant part of Australia.”

56                  The applicant, in my view correctly, does not complain that these remarks were reasonably likely to offend, insult, humiliate or intimidate a relevant person.  They constitute, in my opinion, a robust statement of a point of view which although likely to be controversial would not reasonably be likely in itself to give real offence or insult.  Nevertheless, the terms in which those introductory comments are made set part of the scene and, in my opinion, give a degree of colour to what followed. 

57                  The next paragraph in the Financial Review article read as follows:

“Mr Lightfoot questioned interpretations of history which identified traditional Aboriginal people as being somewhere in the mid point on the civilisation spectrum”.

58                  There then followed the passages which I have set out above at paragraph [17].  I shall not repeat them here, but I will refer to the first of the respondent’s statements as “the primitive” statement and the second one as “the culture” statement. 

59                  The word “primitive” has a wide range of meanings.  It can mean “old fashioned, simple, unsophisticated”.  But it can also mean “undeveloped, crude or belonging or pertaining to a culture characterised by isolation, low technology and simple social and economic organisation” – see the Shorter Oxford English Dictionary at 2354. 

60                  In the context of Mr Lightfoot’s other observations, and in particular the introductory comments which I have set out above, I think a reasonably objective person would read the use of the word “primitive” not as being some benign observation by way of contrast with, say, western civilisation, but as a pejorative remark carrying the least favourable meaning of that word i.e. undeveloped or crude. 

61                  In my opinion, the making of the primitive statement was reasonably likely, in all the circumstances, to offend and insult an Aboriginal person who continues to lead a traditional way of life and also any other Aboriginal persons who are related to those persons or who are descendants of Aboriginal people who formerly led a traditional way of life.  As Branson J observed in Jones v Toben at [91] the words “offend” and “insult” involve closely related concepts. 

62                  I do not think that the making of the primitive statement was reasonably likely to humiliate or intimidate the relevant persons.  In my assessment the respondent’s act would not be reasonably likely to lower their pride or self-respect or to render them timid.  I now turn to the culture statement. 

63                  It will be remembered that this statement was made in the context of the question whether Aboriginal culture should be taught in schools.  In my view, a reasonable construction of what the respondent said was as follows:

·          there were some aspects of Aboriginal culture which were abhorrent including some which [in the respondent’s view] were terrible sexual and killing practices;

·          there were some aspects of Aboriginal culture which were not valid in the 21^st century;

·          he was happy to listen to a proposal which would involve teaching in schools about those aspects of Aboriginal culture which did not fall within the above descriptions, but was otherwise opposed to the teaching of Aboriginal culture in schools.

64                  With a considerable degree of hesitation, I have reached the same conclusion in relation to the culture statement as my conclusion in respect of the primitive statement, i.e. that it was reasonably likely to offend or insult the relevant persons which I have identified above but not to humiliate or intimidate them.

65                  I would have reached a different conclusion if those observations were made on their own but they were not.  They were made in the context of the introductory comments and the primitive statement. 

Whether the respondent’S act was 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 relevant group

66                  In my view, the evidence establishes that the respondent’s act was done because of the fact that the persons about whom the respondent was talking were of the Australian Aboriginal race or ethnic origin.  I do not think that there is any need to call in aid s 18B of the Act which provides relevantly that it is sufficient, if a relevant act is done for two or more reasons, that one of the reasons is the race or ethnic origin of a person.  I accept Mr McIntyre’s submission to the effect that there could be no other reason for the respondent’s statements than the race or ethnic origin of the relevant group of people. 

Whether any of the statutory exemptions apply

67                  The first question is who carries the onus of proof with respect to the non-existence or existence of any relevant exemption provided for by s 18D. 

68                  Hely J in Jones v Scully at [127] and [128] appears to have assumed that the onus of proof with respect to an exemption provided for by s 18D rested on the respondent.  Branson J in Jones v Toben, at [101] said: 

“The onus of proof with respect to an exemption provided by s 18D rested on the respondent (Jones v Scully per Hely J at [127]-[128]).” 

69                  I respectfully agree with their Honours.  In my view, the exemptions provided by s 18D of the Act fall within the following description in Vines v Djordjevitch (1955) 91 CLR 512 at 519-520: 

“… it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts.  In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right.  For such a purpose the use of a proviso is natural.  But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.”  (Authorities cited)

70                  It will be recalled that the respondent has seen fit not to place any evidence before the Court.  I do not regard the evidence which the applicant has put before the Court as providing a basis for inferring that any of the statutory exemptions apply. 

71                  In the respondent’s letter to the Court, which I have referred to at paragraph [14] above, he makes two potentially relevant points by way of submission, namely, that his comments were:

·          made in a political context “… to a proposal to introduce the teaching of Aboriginal culture into the Western Australian Government schools’ curricula”; and

·          in response to questions posed to him as a member of the Legislative Council in the Western Australia Government, on an issue of public interest.

72                  The relevant exemptions expressed in s 18D of the Act apply to “… anything said or done reasonably and in good faith” in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest – s 18D(1)(b), or in making 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 – s 18D(1)(c)(ii).

73                  For one or other of those exemptions to apply, the onus of proof borne by the respondent required him to put evidence before the Court first that the respondent’s act was done reasonably and in good faith, and, either that it was done for one of the genuine purposes referred to in s 18D(1)(b), or that the circumstances referred to in s 18D(1)(c)(ii) applied, including the circumstances that his comments were the expression of a genuine belief held by him.

74                  The respondent by choosing not to put any evidence before the Court has, in my view, quite clearly failed to discharge the onus of proof that any of the statutory exemptions apply.  I find that the complaint which is the subject matter of this application has been established.

relief

75                  Section 46PO(4) of the HREOC Act provides as follows:

“If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it 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.”

76                  The expression “unlawful discrimination” is relevantly defined in s 3 of the HREOC Act as meaning any act that is unlawful under Part IIA of the Act.  Section 18C is in Part IIA. 

77                  The primary relief sought by the applicant is a declaration that the respondent has engaged in conduct rendered unlawful by s 18C of the Act.  Although the applicant originally sought an apology, she no longer presses for one.  The applicant also seeks an order that the respondent make a donation to the Aboriginal Advancement Council and an order that the respondent pay the applicant’s costs. 

78                  I think that it would be fit to grant the declaration sought.  It is a useful and appropriate way of recording publicly the unlawfulness of the making by the respondent of comments which received considerable publicity and were reasonably likely to offend and insult the relevant persons identified above.  I also think that it would be fit to order the respondent to pay the applicant’s costs.  That is because she has been successful in these proceedings and no reason has been advanced for the respondent not to bear her costs.  Those costs are likely to be substantial. 

79                  I now turn to the proposal that the respondent be ordered to make a donation to the Aboriginal Advancement Council. 

80                  Mr McIntyre submitted that s 46PO(4)(b) would be the source of my power to make such an order.  I do not think that is the case in this matter because the order sought is not sought for the purpose referred to in that sub-paragraph.  However, the list of specified orders in s 46PO(4) is not exhaustive – see the use of the word “including”.

81                  Nothing specific was put before me on behalf of the applicant to demonstrate why such an order would be a fit one, other than such a payment would be for the benefit of the group affected by the respondent’s act.  No authority was cited to me in which such an order had been made.

82                  When I sought guidance from Mr McIntyre on this aspect of the relief sought, he referred me to some Commission decisions in which damages were assessed.  Mr McIntyre suggested that similar principles should apply.  He said that the award should not be so low as to diminish respect for the public policy shown by the Act.  Although initially he mentioned a figure of $1,000, he submitted that anything between $10,000 and $50,000 would be an appropriate sum.

83                  I infer that the applicant regards such a payment as being in the nature of compensation for the group affected.  I also infer that the donation order is intended to indicate a degree of disapproval of the respondent’s conduct. 

84                  I did not find the Commission decisions to which Mr McIntyre referred me to be of much assistance.  They were mainly concerned with assessment of appropriate awards of compensation to specific individuals or groups of individuals.

85                  I have found unlawful conduct.  That finding will be marked by the declaration sought. 

86                  I have had regard to the evidence of the applicant and her other Aboriginal witnesses.  I have accepted their evidence as to the impact of the respondent’s act on them.  But, as I have mentioned above, the authorities show that the test whether there is a reasonable likelihood that conduct will offend, insult, humiliate or intimidate is an objective one, although evidence of the type given by the applicant and her Aboriginal witnesses is relevant in that assessment.  The likely extent of the effects of the conduct would also, in my view, be a matter for objective assessment. 

87                  To a substantial extent, my assessment is that what the applicant and those witnesses describe as effects upon them of the respondent’s act, and as their reactions to the respondent’s act go beyond what might reasonably be expected of members of the relevant group. 

88                  The considerable advances which have been made in recent years in matters of racial tolerance in Australia, particularly where Aboriginal people are concerned, would in my view lessen what might in years past have been the impact of the respondent’s aberrant outbursts.  Reasonable members of the Aboriginal community would be aware that the respondent’s intolerant comments were not only out-of-line with mainstream Australian attitudes, but probably unlawful.  While the respondent’s act was offensive and insulting to them, I think that they would be more likely than not to take a fairly robust view of where that conduct stood in the general scheme of things.  The status of the respondent’s remarks was reflected by the heading which the Australian Financial Review chose for the relevant article, i.e. “PM’s Lightfoot-in-mouth poser”. 

89                  I am not prepared to find on the evidence before me that most members or even a substantial number of members of the relevant group would have been affected to the extent described by the applicant and her witnesses. 

90                  In my opinion, the relief granted for contraventions of the Act needs to be kept in proportion to the reasonably likely consequences of the unlawful act.  Otherwise there is a risk that the policy reflected by this type of legislation may be defeated.  Part IIA of the Act was inserted into it in 1995.  In the Explanatory Memorandum for the relevant bill (the Racial Hatred Bill 1994), the emphasis of the amendments was said to be to promote racial tolerance.  The imposition of a disproportionate sanction for the respondent’s conduct in this matter would not, in my view, further that aim. 

91                  Parliament, having chosen (by providing a set of specific exemptions) the balance to be struck between freedom of speech and racial tolerance, has largely left to the Court the task of choosing the appropriate sanctions when a person crosses the line between what is lawful and what is unlawful.  The respondent’s act has been found to be unlawful, but it is not criminal. 

92                  I take into account also the fact that the order that the respondent pay the applicant’s costs will result in a payment by him of several thousand dollars, possibly in the order of about $10,000.

93                  In my view, it would not be fit, in the particular circumstances of this matter, to make the donation order sought.  In all the circumstances, I think that it would be fit for there to be a declaration, for the respondent to be ordered to pay the applicant’s costs, but that otherwise there be no further order. 

Associate:

Dated:              26 November 2002